The shaping of labour law legislation : underlying elements of Australia's workplace relations system

711 Pages·2017·4.884 MB·English

by  Richard B. Naughton

The Shaping of Labour
Law Legislation:
Underlying Elements of
Australia’s Workplace
Relations System
This book is dedicated to my parents Tui and Brian Naughton.
The Shaping of Labour Law
Legislation: Underlying Elements of
Australia’s Workplace Relations
System
Richard Naughton
B Juris, LLB, BA (WA), LLM (Melb), PhD
(Monash)
LexisNexis Butterworths
Australia
2017
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National Library of Australia Cataloguing-in-Publication entry
Author: Naughton, Richard.
Title: The shaping of labour law legislation:
underlying elements of Australia’s workplace
relations system.
ISBN: 9780409345865 (pbk).
9780409345872 (ebk).
Notes: Includes index.
Subjects: Labor laws and legislation — Australia.
Industrial laws and legislation — Australia.
Industrial relations — Australia. Work
environment — Australia.
© 2017 Reed International Books Australia Pty Limited trading as LexisNexis.
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Foreword
Most Australian employees have their terms and conditions of
employment governed by machinery established by the Fair Work Act
2009, which was passed into law by the Australian Parliament.
However, a careful reading of this statute would, I suggest, give the
reader a rather limited understanding of Australian labour law. This is
because the Fair Work Act builds upon the last one hundred years of
the laws and practices of employment relations in our nation. Without
an understanding of this history, in my view, it is nigh impossible to
comprehend the operation of our labour laws.
In The Shaping of Labour Law Legislation — Underlying Elements
of Australia’s Workplace Relations System, Dr Richard Naughton has
comprehensively analysed the history of our labour laws and the
institutions which operated under various regimes of employment law.
In the first decade of the previous century, the Australian Parliament
and the parliaments of a majority of the states established labour courts
to settle disputes over terms and conditions of employment between
trade unions and usually employer associations. These courts utilised
powers of conciliation to resolve these disputes. However, where
conciliation failed, powers of final and binding interest arbitration were
called upon to specify wage rates and work rules which bound the
disputants, usually throughout the relevant industry or occupation.
Later, the labour courts morphed into administrative commissions, but
they still operated mechanisms of conciliation and arbitration and their
settlements were embodied in federal and state awards.
In hindsight, it is surprising that these indigenous methods of
conciliation and arbitration, which privileged trade unions and
commissions, lasted virtually unchanged right up to the 1990s. In my
opinion, their longevity occurred owing to their success in distributing
productivity gains relatively equally to most employees in our nation.
Yet, from the 1990s onwards, the winds of globalisation, increased
world trade and the advances in information technology reshaped our
labour laws and re-focused the roles of their institutions.
Dr Richard Naughton who is a renowned scholar and experienced
legal practitioner, has chronicled these changes in our laws which give
the reader the necessary grounding to understand the operations of the
Fair Work Commission, the place of modern awards, the national
employment standards and the rules governing enterprise bargaining.
After unpacking conciliation and arbitration, this volume examines
the 1993 shift from awards to bargaining, the Prime Minister Howard
workplace relations laws of 1996, the ill-fated work choices regime
from 2005 to 2008, and then analyses enterprise bargaining under the
Fair Work Act, together with the mandates given to the Fair Work
Commission to intervene in both collective and individual labour law
matters.
In this era of instant communication, it may be tempting for some to
muse that the past has little to offer. However, our laws, and especially
our labour laws, cannot be comprehended without an understanding
and appreciation of their origins and development. This fine and
scholarly book gracefully fulfils this role. I hope it finds its way onto the
shelves of most labour lawyers and HR practitioners in our nation.
Emeritus Professor Ron McCallum AO
School of Law
University of Sydney
13 March 2017
Acknowledgments
There are a number of people who deserve a great deal of thanks for
their help and guidance in the writing of this book.
First my colleague at Monash University, Professor Marilyn Pittard,
who supervised my PhD thesis, and has been a great support over recent
years as we have taught and worked collaboratively. It has been an
enormous pleasure being involved in the teaching programs at Monash,
and having the opportunity to participate in work and research
together.
This book also owes a considerable amount to discussions I have had
with Professor Richard Mitchell, and the great help he has given me
with my academic work. I arrived in Melbourne in 1986 and began
working at the Department of Accounting and Business Law in the
Faculty of Economics and Commerce at the University of Melbourne.
That was just about the time Richard began planning to establish
graduate teaching programs in labour law and also the Australian
Journal of Labour Law. I was fortunate to be involved in those
programs from the outset, and have been part of the labour law
community ever since.
I acknowledge the encouragement I have received over many years
from Professor Ron McCallum, and his interest in my work. During the
preliminary research for my PhD I was also greatly assisted by a number
of conversations that I had with Professor Joe Isaac, and that material
proved very useful when I began writing this book. While finalising the
book I have also been helped in discussions I have had with my Monash
colleague, Adjunct Professor Jennifer Acton.
In undertaking the research for this book I was greatly assisted by the
staff of the Monash Law Faculty library, and also the Fair Work
Commission Library.
The assistance of my friends at Lexis Nexis is greatly appreciated,
particularly Georgina Gordon for organising things with such precision,
and Catherine Britton for her splendid editing skills.
As always, I appreciate the love and support of my family and some
very good friends.
Richard Naughton
Melbourne
June 2017