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The Thirteenth Annual Kingsley Laffer Memorial Lecture, 2005

Justice at Work: Industrial Citizenship and the Corporatisation of Australian Labour Law

Ron McCallum, Dean of Law, Blake Dawson Waldron Professor of Industrial Law, Sydney Law School, University of Sydney


Distinguished guests, ladies and gentlemen. It is indeed a great honour to have been asked to deliver the 2005 Kingsley Laffer Memorial Lecture here at the University of Sydney. Kingsley Laffer was a pioneer of Australian industrial relations teaching and scholarship. He joined the University of Sydney in 1944 and for the next three decades he championed the discipline of Australian industrial relations. In my view, Kingsley's most enduring achievement was his foundation editorship of the Journal of Industrial Relations that lasted for some eighteen years. This journal that was cradled here at the University of Sydney, is undoubtedly Australia's premier industrial relations review that is read throughout the world. We all owe him an enormous debt that I hope I and the other twelve givers of this annual lecture that bears his name can repay through the distillation of our research and scholarship.

Although I am by no means a labour law pioneer, for the last thirty or so years, the primary tasks in my working life have been to further teaching and research in the discipline of labour law. I chose the path of a teacher because the legal rules which govern our rights and obligations as workers and employers are of central importance to Australian society. I regard knowledge of these rules as an indispensable aspect of legal training in our nation. As a tertiary teacher, I have always strongly held the conviction that dialogue between teacher and student is the best way to transmit not simply knowledge of our labour laws, but of greater importance to explain to students the spirit of these laws. All of our laws and especially our indigenous labour laws possess a spirit that is the result of their formulation and application throughout Australian workplaces. For most adult Australians, the performance of paid work, whether as employees, consultants or contractors, hopefully gives us fulfilment, a broad social network, and remuneration to support ourselves and our families. In my view, the purpose of labour law in a democratic state is to ensure that the rights and obligations placed on workers and employers mandate just and fair outcomes with respect to remuneration, security of employment, leave, training, occupational health and safety and other terms and conditions of employment. This includes ensuring that workers and employers have the right to join and to participate in the activities of free trade unions and employer associations including engaging in collective bargaining, and that they refrain from unfair, unjust, arbitrary and discriminatory behaviour.

On Friday 1 July this year, for the first time in more than two decades, the Australian Government will have control of both houses of the Australian Parliament. Since 1980, no Government has had a majority in the Senate, that is, the upper house of the Australian Parliament. Over the last quarter century, in order to secure the passage of legislation, especially when it is contentious, governments of all complexions have had to negotiate with the minor parties and with independent Senators. For example, when the Howard Government introduced its workplace relations changes in May 1996, it was required to water down many of its provisions because of the demands of the Australian Democrat Senators. More especially over the last five years, many of the Howard Government's labour law bills have failed to be enacted into law because the government and the Senate were unable to compromise on their positions. However, after 1 July this year, the Howard Government will have control of both houses of the Parliament and will be enable to enact whatever changes it wishes to make to federal labour law subject only to the constraints of the Australian Constitution.

As yet, the Howard Government's 2005 labour law program has not been fully unveiled. However, it does appear that the Government wishes to simplify collective and individual agreement-making, to make it more difficult for trade unions to take lawful industrial action through the introduction of secret ballots, to restrict the rights of trade union officials to enter workplaces, to further strip back federal awards to a narrow core of minimum rights, to immunise small businesses from the unfair dismissal laws, to free small businesses from the requirement to make redundancy payments, to more tightly regulate industrial relations in the construction industry, to develop new processes for establishing a national minimum wage, to enable private mediators to resolve workplace disputes and to create one national labour law system for our nation by the year 2010. While it is my surmisation that not all of these proposed changes will find their way onto the federal statute book, nevertheless, significant changes to our labour laws will occur certainly by the close of 2005. Now, I suggest, is the time to take stock and to examine our federal labour laws to see if they meet the standards of justice and fairness which are appropriate to our democratic and market economy nation.

This evening, I shall undertake this task in four stages. First, I shall unpack some of the writings on industrial citizenship to determine what are the appropriate rights and obligations that labour law should bestow on Australian citizens at work whom I shall call industrial citizens. Second, our labour laws do not operate in an historical or sociological vacuum. To determine how our laws have faired with respect to justice and fairness, an historical analysis of their operation over more than one hundred years will be undertaken. Third, I shall argue that labour law changes which do not meet the standards of justice and fairness will be found wanting by Australian industrial citizens and their families. Finally, and this is of crucial importance, I shall assert that the creation of one national labour law system through the use of the corporations' power will inevitably lead to the corporatisation of Australian labour law to the detriment of Australian industrial citizens. This is because such an approach will inevitably mean that labour law will become little more than a species of corporations' law and this will impact adversely upon Australian industrial citizens.