Centenary prompts curious "support" for arbitration

Bob Briton

Comments by Justice Michael Kirby about the "industrial 
ayatollahs" plotting the destruction of the Australian Industrial 
Relations Commission (AIRC) certainly stirred a hornet's nest. 
The High Court judge and former deputy president of the 
Australian Conciliation and Arbitration Commission (predecessor 
to AIRC) used the occasion of a convention to mark the centenary 
of the AIRC to make a thinly veiled criticism of the Federal 
Government's reactionary industrial relations agenda.

Kirby attacked those who want to see the Commission "closed down 
lock stock, and barrel" or "converted into a mediatory body with 
no legal powers of arbitration or intervention".

"Persons of such views tend to live in a remote world of fantasy, 
inflaming themselves in their rhetoric into more and more unreal 
passions, usually engaging in serious dialogue only with 
comfortable persons of the same persuasion. For the rest of us, 
who live in the real world and know our country and its 
institutions better, time will not be wasted over such fairy 
tales."

Unfortunately for Justice Kirby (and "the rest of us" who have to 
eek out a living in the "real world"), the inflamed, comfortable 
persons in charge of industrial relations policy in Australia 
have just been granted control of the Senate. Twenty-eight union-
bashing bills previously blocked by the Senate look to receive a 
smooth passage through the new Senate when it comes into action 
in mid-2005. The bills may even get through earlier — the 
government is not waiting, it is trying again this week with the 
old bills and some new, even more vicious ones, this week.

As Kirby warns, the AIRC will be "converted into a mediatory body 
with no legal powers of arbitration or intervention". It will 
lose its relevance to trade unions and workers, considering fewer 
and fewer matters, forcing unions to rely more and more on their 
own organisation and actions.

Initially many more workers will be forced into Australian 
Workplace Agreements (employer-dictated individual employment 
contracts — AWAs) with access to only the Minister's own Office 
of the Employment Advocate for their grievances or possibly 
common law or corporations law.

Regrettably, the scenario de-scribed and rightly criticised by 
Kirby is no fairytale. It has been happening and its complete 
fulfilment is Howard's top priority in his fourth term in office.

Still, the Judge's statements were not going to pass without 
comment. His stand for a more independent IR system was condemned 
by Attorney General Philip Ruddock. He described Kirby as a 
"colourful judge" and set out to give him a refresher course in 
the law:

"Judges, I think, need to be careful in the way in which they 
speak because it often invokes comment, and it is important that 
the separation of powers which we have, where the legislature 
makes the laws and the courts adjudicate, be protected."

Clearly, as far as Ruddock was concerned, the sort of discussion 
sparked by Justice Kirby's critique was unhelpful. Howard was 
displeased, too. In response to a question from the media quoting 
the judge's "ayatollah" remarks, the PM replied, "Oh did he? I 
haven't seen the text of the comments, but I note that." Later on 
he also gave him a lesson on the law and the need for judges to 
be "temperate" in their use of words. Of course, none of these 
outbursts should be seen as interference from the legislature in 
the affairs of the judiciary! 

Naturally, Workplace Relations Minister Kevin Andrews was not 
moved by Justice Kirby's arguments. He spoke after the judge and 
proceeded to confirm the worst fears of the supporters of the 
AIRC present at the commemorative gathering. He reminded the 
audience that industrial arbitration was only one of the methods 
a society like Australia could have chosen to deal with the 
phenomenon of industrial disputation — meaning class struggle by 
workers in defence of their own interests. Other, unmentioned 
countries had chosen different methods.

He pointed out that the proposal for a commission 100 years ago 
had been approved by a narrow margin by the "founding fathers" 
and that it was agreed to in response to a specific set of 
circumstances. According to Andrews the disputes that took place 
on the wharves and in pastoral industries of the 1890s had caused 
the "economic and social distress" of that decade. Virtually 
every other commentator has concluded that the calamitous 
depression of the 1890s — a periodic crisis of capitalist 
overproduction — had forced the working class into a desperate 
struggle based on the need to organise or starve.

Andrews just kept on rewriting history. The 1907 Harvester 
Judgement — that concluded that employers should pay wages that 
are adequate to sustain "the normal needs of the average 
employee" or close the doors — was appropriate then but not now. 
Today, workers have "intellectual capital" of their own and take 
their place on an even playing field with employers, at least 
according to the Workplace Relations Minister.

Minimum wage under attack

While Andrews was singing the praises of the generosity of the 
deregulated, non-union workplace he simultaneously argued that 
the concept of a minimum wage must go. It stands in the way of 
job creation. He said that the AIRC must keep the interests of 
the unemployed in mind when deliberating on wages and conditions. 
The clear message was that low wages and poorer conditions equal 
more jobs. The idea that workers need sufficient purchasing power 
to sustain production (not to mention themselves!) is foreign to 
the Minister.

Andrews speech supported the AIRC the way a rope supports a 
hanged man. His claim to have defended the Commission was that he 
wants to "reform" it, to help it evolve in order to survive. In 
reality he wants to empty it of any, albeit limited, progressive 
role in defending workers' rights in less well organised 
industries while he sets about purging workplaces of unions.

The ALP remained silent during the ensuing controversy. ACTU 
President Sharan Burrow called the Minister's contribution 
extreme and implored Bob Hawke to try to talk some sense into his 
fellow IR reformer. Victorian Trades Hall Council Secretary Leigh 
Hubbard also "defended" the Commission with an example of the 
type of attitude that has helped disarm the trade union movement: 
"We hope that it [the AIRC] is allowed to continue to balance the 
competing interests of workers and employers in the best 
interests of all Australians for many years to come".J

Harvester Case, Arbitration Court 1907

Justice Higgins:

"If A let B have the use of his horse on the terms that B give 
the horse fair and reasonable treatment, B would have to give the 
horse proper food and water, shelter and rest. I decided, 
therefore, to adopt a standard based on 'the normal needs of the 
average employee, regarded as a human being living in a civilised 
community'. This was to be the primary test in ascertaining the 
minimum wage that would be treated as'fair and reasonable' in the 
case of unskilled labourers."