Re-imagining the Role of Trade Unions after WorkChoices

Abstract

No system where interests collide can proceed without a means to break deadlocks or redress major asymmetry of market power.--(Gardner 2008: 40) A focus on asymmetry of market power emerges as a central theme within three of the four plenary papers examining the future shape of Australia's federal industrial relations system. Gardner, Hancock and McCallum all affirm the inherent power imbalance existing in the common law employment contract as a continued justification for regulation in the arena of industrial relations. Yet, imbalance of power is not unique to the employment relationship, (2) a factor which has contributed to many commentators seeking a broader regulatory justification for intervention. (3) This approach is not incompatible with recognition of the existence and effect of power imbalance in the context of employment and the role of regulation in correcting power imbalance. It does, however, seek to establish a broader justificatory basis for the regulation of work, a project which may help the discipline of labour law move beyond the contract of employment as the locus of regulation. The rationale behind the impetus to extend the principles underpinning labour regulation clearly emerges in the acknowledgement made in each of the plenary papers of the declining role of trade unions and strike action within the modern federal industrial relations system. If collectivism is in decline, alternate methods of regulating the relationship of employees and employers should be adopted. This discussion will consider two of the central themes emerging from the plenary papers: power imbalance; and the impact of the shift in regulating trade unions as representatives of workers generally in favour of the regulation of trade unions as representatives or agents of individual union members. Gardner suggests that the causes of the declining influence of trade unions in Australia have been misrepresented as social rather than legal. Commenting on the impact of the amendments made to the federal legislation by the Keating Government in 1993 and the Howard Government in 1996, Gardner observes that 'the diminution of collective representation and influence looked like a societal change not a legislatively induced one'. The discussion will consider the ongoing role of trade unions and collective action within the Australian industrial relations framework in light of the history of industrial relations in Australia and the pessimistic assessment of the future of collective representation that emerges within some of the plenary papers. For example, Hancock argues that '[i]t may well be unrealistic to expect the unions to turn around the secular decline in their penetration of the work force'. However I believe this focus on the decline in union density is unhelpful in the Australian context. It is possible to imagine a rejuvenated role for trade unions as representatives of workers generally if we consider the role of unions in Australia within their historical context. In his plenary paper, McCallum reminds us of the origins of employment regulation and the transformation of the master and servant relationship from service to contract at the time of the industrial revolution. McCallum emphasises that the contractual relationship is characterised by command and obedience, wherein the employee submits to the control of the employer in return for payment. The underlying capital and managerial power of the employer is reinforced at common law by the terms of the contractual bargain which require the employee to obey lawful and reasonable commands, upon threat of summary termination. This emphasis on the contractual basis of the individual employment relationship serves to illustrate the inadequacy of the common law to redress the unequal position of an individual employee against the pre-existing capital power of the employer. It is also a useful tool for teaching students who have never studied industrial relations or labour law. …