The dual purposes of protection and redistribution are firmly associated with the political goals of 20th century economic and social reform to redistribute wealth through the labour market and empower labour and its institutions10.
The neo-liberal agenda that stands against the objectives of protection and redistribution is often described as “de-regulation”, which implies a return to a “natural order of things”12 where market forces and private decision making are considered superior. The “superiority” of that model in absolute terms was tested against public interest grounds and failed more than 100 years ago. Among the cluttered field of lobbyists representing the interests of capital, only the HR Nicholls society has called for industrial relations laws to be abolished and only the Australian Mines and Metals Association had pursued a whole of industry exemption from the regulatory scheme (and even that model had some, albeit limited, safeguards to it).
What has been observed over time is that the “de-regulation” agenda has been accommodated by incremental reductions in the effectiveness with which our industrial relations law serve their primary objectives. This incremental reduction in effectiveness is the product of two causes:
Deliberate concessions by governments to the interests of capital (sometimes by more regulation rather than “de-regulation”); and
Inaction (or insufficient action) by governments in response to changes in the nature and organisation of work and the behaviour and organisation of capital.
Both of the causes have been aided by the deliberate shift in the constitutional basis of industrial law from the Conciliation and Arbitration power to the Corporations power. The latter provides the vehicle for the government to directly regulate what labour and capital must and must not do, even in the absence of any dispute. But the power has not been utilised in the current law to its fullest extent - by focussing on the relationship between acorporation and its employees, the framing of the current law necessarily disempowers organised labour that is not in a traditional relationship with a single employer. If one pauses to consider what might have been possible had the courts and the AIRC been left with given even only minor prompting from a benevolent legislature to continue to develop and evolve the law as to what could constitute an “industrial dispute”, a different result seems likely.
In the remainder of our submission, while responding to the PC issues papers as thoroughly as our time and resources have permitted, we direct particular attention to the effectiveness with which industrial relations law is currently meeting its objectives of protection and re-distribution.