A year after the Australian waterfront war the debate over industrial relations reform remains hot although not visibly violent. Three competitive directional forces are apparent which are impacting on how Australians are organised in their working lives.
The item attracting most national attention is the Federal Government's Second Wave legislation which seeks to further soften the power of the centralised system. In direct legislative opposition is the new Queensland IR Act which has delivered an unheralded degree of power to the IRC and unions. The third force is represented by the significant growth of working arrangements outside of any imposed IR system.
These three forces are manifestations of starkly different conceptual models operating in a society which is evolving towards greater individual freedom and equality. The greater the levels of individual freedom and equality a society can deliver to citizens, the greater are the levels of creativity, productivity and sense of self worth achieved by citizens.
Regulation of people's working lives has always been justified on grounds that employees are in an unequal power relationship with employers. This inequality is ensured through the legal basis of employment where the employer has the presumptive "right to control" the employee. It is a situation out of step with where society is heading.
For example, the power of one partner in a marriage to have legal control of the other partner has been removed through statute. The right of one class, race or religion to have power over or to discriminate against others has been legally removed. In a just society our parliaments look to create laws which give people the presumption of legal equality.
Yet with employment law the reverse is the case. Employment law, regulations and the regulating institutions impose legal presumptions of unequal power relationships. Centralised IR systems operate on the premise that inequality of power at work is best resolved by creating a third, more powerful authority which can impose its will on employers and employees alike. Rather than removing legal inequality of power the IR system creates more inequality.
With this issue of power in mind the three identified trends can be observed.
The Federal Government's Second Wave legislation is a mild adjustment to its initial legislation. It doesn't seek to address the legal unequal power inherent in employment but does aim to further diminish the power of the third party and to push employers and employees to solve issues directly through individual agreements. The warrior cry of the unions in opposition is motivated by their progressive removal from the interplay between employer and employee. Unions contend that "controlled" individual employees cannot protect themselves from legally dominant employers, an argument that has some moral resonance.
Moving within a different paradigm to industrial relations legislation is the community shift to working under commercial contracts where the legal presumption is of equality between the parties. With well over 10% of the workforce working this way, equality within commercial contracts has become a significant factor affecting people's working behaviour. This trend is likely to expand given that the Federal Governments tax reform package is closing any tax loopholes normally associated with contracting. As businesses discover the new tax legitimacy of independent contracting they will feel more comfortable utilising managerial approaches which look for equality in the work relationship.
In many respects the second wave legislation and independent contracting are moving in a coherent direction but with different structures and timeframes towards a society where legal equality in working relationships is the desired if not actual goal.
In the opposite direction are the forces which seek to deny the trend to legal equality and instead seek to reimpose and reinforce notions of unequal power between people at work. A high mark of this counterforce is the 1999 Queensland IR legislation, which delivers to the IRC and unions a near total legislative authority to intervene in work situations. Further, the Queensland Act seeks to intervene in relationships where equality under commercial contracts exists. The forces pushing for this Queensland-style legislation deny that equality at work can ever be achieved and so seek to impose third-party authority on all people who work.
Whatever is the real life behavior of people it is socially progressive to construct legislation which delivers to people at least the presumption of legal equality. This has been achieved in the areas of marriage, race, religion and other areas of human activity but in the area of our working lives the struggle for legal equality is furtive.
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