The legacy of Work Choices:
understanding the transition to the Fair Work Act.
By Troy Sarina*
Andrew Stewart, Stewart's guide to Employment Law, Federation Press, 2008, rrp $64.95.
Andrew Forsyth & Andrew Stewart (eds), Fair Work: The New Workplace Laws and the Work Choices Legacy, Federation Press, 2009, rrp $85.00.
The 700 pages of provisions contained in the Rudd government's Fair Work Act (2009) are a significant hurdle to obtaining a clear and concise understanding of the key elements of Australia's national workplace system - a problem addressed by two new guides to Australian employment law and the new Act.
It seems that Australia's industrial landscape has been in a constant state of flux for long over a decade. Over the last 14 years we have seen significant shifts in the way that work is organised and executed. Much of this change has been facilitated by a number of overhauls to Australian workplace laws in an attempt to establish and define the rights and obligations that industrial actors such as employers, workers and trade unions have towards each other. Prior to the election of the Rudd Labor government in 2007, the Coalition enacted the Work Choices legislation. This represented a regulatory model of workplace laws that reinforced the legitimacy of managerial prerogative to manage the employment relationship by reducing the institutional power that has once been exercised by industrial tribunals such as the Australian Industrial Relations Commission (AIRC) and trade unions.
Legal reform was used to entrench a system of labour laws that were anchored on notions of freedom to contract- a legal doctrine that assumes away any imbalance in bargaining power that might exist between an employer and an individual worker. The Australian public were not convinced of the merits of this regulatory model and as a result the Rudd Labor government was elected to office in 2007 vowing to introduce an entirely new system of workplace laws that would ensure the industrial relations "pendulum" would swing back to the centre by ensuring considerations of fairness were reconciled with the quest to enhance efficiency and productivity. It would seem that a most sacred legal doctrine- the freedom to contract- would still play an integral role in shaping employment law but would now be fettered by a number of equitable considerations in the form of various obligations and rights aimed at redefining the way employers, workers and trade unions interact with each other.
Any labour law practitioner, scholar, or student would be well aware that the task of digesting, understanding and interpreting a piece of legislation can often be incredibly time consuming and difficult. For those readers who were employment relations or labour law scholars during the operation of Work Choices, the challenge of obtaining a comprehensive knowledge of 1300 pages of new provisions and associated schedules was nothing short of frightening! Although the Rudd government has been committed to making workplace laws less complicated, the 700 pages of provisions contained in the Fair Work Act (2009) can act as a significant hurdle to obtaining a clear and concise understanding of the key elements of Australia's national workplace system and how the employment relationship is regulated under this new legislative regime.
It is at this point that the recent publication of Andrew Stewart's Employment law becomes extremely useful. This second edition provides the reader with a clear and concise discussion on some of the fundamental issues that impact on how the employment relationship is regulated within Australia. The book provides an illuminating overview of the evolution of Employment Law and moves on to deliver a well-written and comprehensive discussion on the emergence of new types of employment such as outsourcing. Perhaps of the most valuable elements of Stewart's discussion on these various aspects of the employment relationship is that in this new edition he explains how the recently enacted Fair Work legislation intends to accommodate the emergence of new forms of work as well as changing legal and public opinions. A number of chapters of this text are dedicated to issues such as workplace agreements and working hours. Stewart provides an informative and easy to ready discussion on how the law has attempted to deal with changing working arrangements and the associated expectations that both employers and workers may have towards these issues. Although this book was published in 2008, purchasers are provided with a link that allows readers to download material and case law that may have been handed down since the time of publication to ensure the information contained in the text retains its currency- a most handy addition indeed!
While Stewart's Employment Law provides a contemporary legal analysis of a range of issues that regulate the employment relationship, the more recently published (in 2009) Fair Work: The New Workplace Laws and the Work Choices Legacy (edited by Stewart and Forsyth) provides the opinions of a number of eminent Australian labour scholars on how Work Choices and the Fair Work Act will change the nature and regulation of the employment relationship. The last twelve months has seen a significant level of press coverage dedicated to how under Fair Work, the government will continue with its quest to reconcile issues of fairness with efficiency by implementing a new set of minimum workplace conditions, a new process of collective bargaining underpinned by Good Faith Bargaining (GFB), as well as significant changes to the decision making powers that administrative bodies such as Fair Work Australia can exercise in relation to agreement making. The collection of chapters contained in this new text provides a set of thoughtful and well-researched discussions surrounding these issues. Many of the chapters not only provide a detail explanation of the main changes to the provisions pertaining to the particular facet of workplace laws being discussed but each chapter interweaves a discussion on the theoretical developments that continue to help drive change in labour laws both domestically and internationally.
The combined effect of these texts is the delivery of a concise, critical and illuminating analysis of the legal frameworks and theories that lie at the core of how the employment relationship is regulated within Australia. With many facets of Fair Work only coming into effect on the 1st January of this year, the impact that these workplace reforms is yet to be seen. However, armed with these two insightful texts, the task of deciphering, critiquing and understanding Australia's new labour laws and the decisions that might be handed down by FWA all of a sudden seems a lot less daunting.
*Troy Sarina is a lecturer in the Discipline of Work and Organisational Studies, University of Sydney who researches in the area of Labor Law and comparative employment relations.
Published 9 April 2010.