Job Security or Income Support
| Author | Christopher Arup |
| Published date | 01 June 1976 |
| Date | 01 June 1976 |
| DOI | http://doi.org/10.1177/0067205X7600700202 |
| Published By | Sage Publications, Inc. |
| Subject Matter | Article |
JOB SECURITY OR INCOME SUPPORT
By
CHRISTOPHER
ARUP*
Legal safeguards for individuals
of
employment or income will
be one part
of
agovernment's reaction to fluctuation and change in
industries.
Mr
Arup
e~amines
present federal asssurances
of
security
of
employment and income and capacities to implement
further assurances in line with overall economic rationality. He
concludes that there are limitations both in present assurances and
capacities which require changes in the law.
INTRODUCTION
Job security and income support are increasingly issues of public
debate. Omens of economic and environmental dislocation and adjust-
ment abound at atime when growing government responsibility for
welfare
is
under attack.
It
is
therefore timely to review the limits of the
role of the Australian government's agencies in this field.
This review
is
restricted to the support given by direct regulation and
assistance to those whom our society expects to work and to those who
normally rely upon employment for their income.
It
is
an examination of
existing legal rights and capacities. The classification of supportive
measures used by the International Labour Office
(ILO)
in its 1974
survey of the application of its Recommendation on Termination of
Employment
is
followed. The reader will be well aware of the need for
various private efforts to secure employment and income and govern-
ment action to influence the economy to provide employment and
protect income. But in times of conflict of interests and competition for
resources, personal legal rights and duties become essential too.
The review commences with the principal role of the industrial
tribunals, taking the Australian Conciliation and Arbitration Commission
(hereinafter referred to
as
"the Commission")
as
its example. While
State tribunals, within their own territory and subject to the paramountcy
of the federal scheme, enjoy alarger capacity to regulate industrial
subject-matter, it has not been their practice to do so, nor of their
Parliaments to authorise them to do so.
As athird industrial force, the C'ommission has secured for employees
certain minimum standards that private bargaining at the same stage
would not have achieved. But because of constitutional limitations, the
Commission
is
empowered by the Conciliation and Arbitration Act
1904-1976
(Cth)
(hereinafter referred to
as
"the Act") only to prevent
and settle interstate industrial disputes by conciliation and arbitration.
Consequently it cannot really make decisions that seem to either party to
be too extreme or uneconomic. Because the Commission's powers rest on
*Senior Tutor in the Faculty of Law, Monash University.
145
146 Federal
Law
Review
[VOLUME
7
acircumscribed but inadequately defined power, its initiatives are
subjected to frequent review
by
the High Court.
It
is
exercising arather
blunt instrument in ahighly charged arena.
INDUSTRIAL
AWARDS
Notice 0/ Termination
The first relevant effort of the Commission to secure employment
was
its introduction of the requirement of aweek's notice, or pay in lieu, to
terminate employment.
It
is
argued that aweek's notice or pay in lieu
gives aworker alittle time to
find
anew job.
It
also discourages
employers from readily putting
off
employees
as
the supply of work
fluctuates.
It
therefore contributes to
~ecurity
of employment.
Weekly hiring
is
now the usual.basis of hiring in industries covered
by awards. Concomitant with the specification of weekly hiring
is
the
requirement of aweek's notice or pay in lieu if the employer wishes
lawfully to terminate employment. Under this arrangement, employment
is
of indefinite duration but of aminimum period of aweek.
From its beginnings, the Commission decided to deal with and rule
upon matters of duration and termination. The early Presidents were not
content to leave these matters to private bargaining. But this did not
mean that they departed significantly from prior arrangements in
industry.
In
particular they accepted without comment the principle that the
employer be free to dismiss his employees at any time without demon-
strating avalid reason. The underlying basis for their attitude was
probably that both employer and employee should be free to choose his
counterpart. However, freedom for the one does not necessitate freedom
for the other. But to be fair to the Commission, the employees' claims
at the time probably did not extend beyond notice: notice being the
determinant at comtpon law.
Why did the Commission award weekly hiring in industries where
hiring had been casual, hourly or daily? There
was
an element of social
concern, particularly on the part of Higgins J., to ensure adequate
provision of the needs of family life.1There
was
also repeatedly a
co-optative design. Both Higgins J. and later Beeby J. spoke of the
desirability of both securing steadier employees who would identify with
their place of work, and of eliminating the unrest and disaffection that
insecurity and idleness promote.2Weekly hiring was also aproper
1Australian Timber Workers' Union v. John Sharp and Sons
Ltd
(1920) 14
C.A.R. 811, 836-837; Amalgamated Society
of
Engineers v. Adelaide Steamship
Company
Ltd
(1920) 15 C.A.R. 297, 319.
2Waterside Workers' Federation v. Commonwealth Steamship Owners' Associ-
ation (1914) 8C.A.R. 52, 72; Amalgamated Engineering Union v. Metal Trades
Employers Association (1929)
28
C.A.R. 923, 972.
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