BOOK REVIEW: FAIR WORK: The New Workplace Laws and the Work Choices Legacy, eds. Anthony Forsyth and Andrew Stewart
News Weekly, September 5, 2009
Rudd's workplace laws analysed
FAIR WORK: The New Workplace Laws and the Work Choices Legacy edited by Anthony Forsyth and Andrew Stewart (Sydney: Federation Press) Paperback: 262 pages ISBN: 9781862877368 Rec. price: $85.00
Reviewed by Peter Westmore
Fair Work, sub-titled The New Workplace Laws and the Work Choices Legacy, consists of a collection of research papers written on the transition from the Howard Government's Work Choices legislation, introduced in 2005, to the Fair Work Bill, introduced by the Rudd Government in November 2008.
They are based on papers given by academic labour lawyers at a workshop at Monash University, Melbourne, in July last year, but revised to take account of developments since that time.
When the Liberals introduced their Work Choices legislation in 2005, it was intended to effect the long-standing objective of the Howard-Costello Government to implement the deregulation of the labour market, and the exclusion of unions from the negotiating process.
It also very substantially restricted the powers of the Australian Industrial Relations Commission to deal with industrial disputes, and made Australian Workplace Agreements (AWAs) the standard employment contract.
Work Choices also strengthened employers' rights in a range of other ways, including reducing the number of minimum conditions which had to be included in agreements, and further restrictions on access to unfair dismissal claims by extending the qualifying period from three months to six months and a complete exemption on businesses with fewer than 100 employees.
To protect employees on minimum wages, the Howard Government established the Australian Fair Pay Commission to set minimum pay rates.
Because of widespread public concern about the removal of employees' protection in the legislation, the Howard Government amended its legislation in May 2007, to put in place stronger protections for employees to ensure that "protected" award conditions such as penalty rates and leave loadings could not be relinquished without fair compensation.
On the whole, there seems little evidence that the radical changes in employment law enacted by the Coalition had much effect on employees' working conditions overall, nor on pay rates which for many years had been largely determined by supply and demand.
Perhaps the reason for this is that Australia was enjoying a period of unprecedented prosperity which began in the early 1990s, and continued until the end of 2008 when the impact of the global recession hit Australia.
Nonetheless, the Coalition's industrial legislation was undoubtedly one of the issues which cost the Howard Government power in November 2007.
Once in office, Labor set about reversing much of what the Howard Government had put in place.
It introduced legislation to phase out Australian Workplace Agreements; the safety net of minimum workplace conditions was expanded; unfair dismissal laws were strengthened; and the Australian Industrial Relations Commission resumed its central role in award-making, although its function is to be subsumed under the new agency, Fair Work Australia.
The papers in this book examine in detail some of the major changes which the new legislation will bring into effect, in particular, the attempt to create a national system of industrial relations (in place of the existing state and federal systems), and the extent and operations of the "safety net" of 10 minimum standards which must be included in all awards and agreements.
It draws attention to the new powers which were established under Work Choices to enforce agreements and to prevent exploitation of employees. These powers have been strengthened by Labor's new legislation.
It discusses the changes to the processes of agreement-making, collective bargaining and award modernisation which will be introduced by the new Fair Work Act. In all these areas, and in others such as reforms to unfair dismissal laws, the new legislation broadly favours employees and unions, but not in a way which severely disadvantages the conscientious employer.
One of the major changes in the new legislation is that it reinstates trade unions to a central role in the process of establishing and enforcing awards, reversing one of the major changes wrought by the Howard Government since its election in 1996. It does not, however, completely reverse the Howard Government's 1996 legislation, which effectively abolished unions' right of entry to employers' premises.
This continues to be a subject of agitation by the unions, and may be the subject of further legislation by the Rudd Government.
Several of the contributors to this book are unhappy about aspects of the new legislation, with one contributor suggesting that the Fair Work legislation was "contaminated" by the Howard Government's Work Choices law.
However, in the current economic climate, the Labor Government is unlikely to enact labour laws which discourage businesses and aggravate unemployment.