I T WAS mere coincidence that Opposition Leader Kevin Rudd brought down his new industrial relations policy on the day we were getting news from the US about another horrific campus multiple shooting.
Oddly enough, though, the events stem from a similar thing constitutional failure. Australia is fortunate that perhaps its greatest constitutional flaw industrial relations is much less costly than America’s the ”right” to bear arms. And it seems that Australia is well on the way to overcoming the constitutional flaw, whereas the Americans, tragically, are nowhere near it. The US Constitution says: ”A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” It has resulted in many gun control laws being struck down as unconstitutional. It has led to state and federal legislators refusing to take action under the misguided belief that the Constitution gives an unbridled right to bear arms (carry guns).
So what is the point of trying to legislate. It has given succour to organisations like the National Rifle Association to work against laws that would control gun sales under the guise of constitutional freedom. The constitutional clause is a non sequitur. The language does not tie the second bit (the right to bear arms) with the first bit (a well- regulated militia). But as a matter of law, judges must assume that words are not put into a constitution for the fun of it. The right to bear arms should have been interpreted in a way that had some bearing to ”a well-regulated militia”. Alas, the US Supreme Court has not said that a person’s right to bear arms must be contingent upon them being a member of ”a well-regulated militia” and any militia that is ”well- regulated” would ensure all its arms were under lock and key and that no one person would be able to have a key to both the gun store and the ammunition store.
That is what the Australian armed forces, and presumably the US armed forces, do. The important point is that the words of constitutions can have profound effects on the lives of the citizenry. The Australian Constitution says: ”The Parliament shall … have powers to make laws with respect to conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State”. It led to an industrial relations system, based on ”disputes” often artificially created that were artificially made interstate disputes through the intervention of national unions, which often overrode important local differences in workplaces. Those in a union had too much protection; those outside had none.
And state-based systems ran concurrently. The very strength of unions meant that everyone thought the workers were being looked after even though those outside the system were not. There was much wrong with the system. A coherent national system applying to all employees providing for reasonable fairness and reasonable conditions, but also with reasonable flexibility, was beyond Australia for the first 106 years of federation because of the constitutional underpinning. All that changed with Prime Minister John Howard’s WorkChoices legislation a year ago. It does not rely on the industrial relations power, but the power to legislate with respect to trading or financial corporation. It covers all employees employed by these corporations virtually the whole private sector. It wiped out the state systems. The High Court upheld the law saying that a law regulating employment by financial and trading corporations was a law ”with respect to financial and trading corpora- tions”. Fairly obvious stuff. But expect some fights over people employed by councils and charities whose financial and trading attributes is uncertain. Howard’s law was blatantly pro- employer because it allowed a lot of entitlements and rights to be wiped out and it nullified unfair dismissal laws. These were a creature of the Keating government and were made to apply to everyone because they were enacted under the Common- wealth’s foreign affairs power and they were enshrining International Labour Organisation standards.
But Howard’s law has at least broken the constitutional quagmire. Ironically, Rudd seems set to capitalise on this (if that is the right word). He told the National Press Club this week that he wanted a single workplace relations law for the whole Australian private sector. Well, Howard has already delivered that. But Rudd wants it to be fairer. He will reinstate unfair dismissal, but allow small employers a year and larger ones six months in which to flick dud new employees without too much trouble. He will also increase minimum conditions such as leave, overtime, holiday pay and so on.
He says he will get his national law by dealing with the states by referral, cooperation or harmonisation. But really, that need only be window dressing; the states’ industrial relations infrastructure has, in effect, been wiped out already. In any event, less than 10 per cent of the workforce is not employed by corporations and these are rarely the cause of great industrial relations stoushes. Why would the states bother setting up and keeping systems in place just for them. Critically, though, Rudd refused to say whether he would continue with the present bureaucratic set-up the Office of the Employment Advocate and the Fair Pay Commission or reinstitute the old Industrial Relations Commission. Nor did he talk much about the role of unions, particularly whether they would have rights of entry in workplaces or whether they would get rights to represent all workers in a workplace,
even if some did not want it. Now the constitutional difficulties have been overcome, there is no need for federally based unions to create artificial industry-wide industrial disputes to be settled in an industrial relations commission. Maybe Rudd can build on this. Indeed, Rudd has nothing to lose. In the past year 125,000 workers have left unions. Union membership is at 15.5 per cent of the workforce. There is no need for Rudd to go back to the old system. Ironically, the corporations-based industrial relations system begun by Howard might lead to a change in union attitude and revival in membership. It cannot get much lower. The lesson is that some constitu- tional provisions are deeply flawed and make for a worse society, but with ingenuity and political will, their worst effects can be overcome. The US has a more difficult task (guns) than Australia (industrial relations). Let’s hope the US is up to it.