Labour Standards, Safety Nets and Minimum Conditions

Abstract

One day in the 1990s, I found myself sitting in a hospital cafeteria with a group of people I had just met. We were eating cheese and tomato sandwiches, drinking terrible coffee and talking about work. The nurses in the group--midwives--were chatting about the challenges and rewards of shift work and delivering babies in their small Tasmanian town. About how scheduled shift times and the arrival of babies did not always mesh. I was in fact in the middle of one of the key processes by which the minimum standards for Australian workers have been fixed for about a century. The cafeteria group consisted of Commissioner Frawley of the Australian Industrial Relations Commission (AIRC), representatives of nurses and health workers unions (from the Tasmanian branch offices and in my case the union's national office in Melbourne), local shop stewards from within the hospital, midwives, senior nurse managers, hospital management and senior health service industrial relations officials. The Commissioner was 'on inspection': informing himself by direct interviews with workers and managers at their workplaces about the 'dispute' which unions had 'notified' to the AIRC under the then federal Act. The dispute was about the intention of Tasmanian public hospitals to overturn the existing practice that an eight hour shift was inclusive of a paid meal break, and introduce a new arrangement where shift times would be eight and a half hours long to permit an unpaid half hour break in the middle. Later in the week, most of us were back in the Court buildings in Hobart in a formal arbitration hearing before Commissioner Frawley. We lost our argument to retain the 'straight eights', and it was decided that nurses in Tasmania should work eight hour shifts spread over an eight and a half hours. Through his decision, Commissioner Frawley added another brick to the complex, multi-patterned edifice of labour standards, or minimum conditions, or safety net (the terms are really interchangeable) created through the processes of conciliation and arbitration. He had added to the Australian legal regulation of working time in ways which changed the working lives of those nurses and the ways in which the service they delivered was organised. The Commissioner's decision altered the overall cost of nursing labour in Tasmania (a net saving to the Government because the span of the working day was extended), and impacted upon the productivity of this sector of the workforce in ways yet to be measured. It goes without saying that the decision was unmarked by anyone outside those directly concerned, and like virtually all such similar (and much more significant) decisions on working conditions, unexamined in the literature. I have perhaps already breached Professor Hancock's stricture that nostalgia is not helpful. This personal anecdote frames my response to the plenary sessions because it highlights some of the important aspects of standard-setting in Australia. In my opinion, the best of what used to be remains an option for the future development of institutions and processes for setting standards in this country. Nothing is to be gained by starting from the premise that Australian labour law fits neatly within a traditional picture of labour regulation, as so often is assumed. This traditional picture derives from labour law discourse in the British tradition, which sees two distinct categories of such laws. First, there will be laws which structure and permit collective bargaining, so that unionised workers may meet employers with a measure of power and thereby shape their own working lives. Professor McCallum re-articulates the relevance of this vision of labour law for twenty-first century Australia. Secondly, where workers are too weakly organised, law should step in and determine the conditions which should apply in the absence of collective bargaining. This subsidiary 'regulatory' role for law (or legally binding instruments) is also recognised in all the plenary papers. …