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Two and Two Make Five: Industrial Relations and the Gentle Art of Doublethink

Published online by Cambridge University Press:  01 January 2023

Braham Dabscheck
Braham Dabscheck*
Affiliation:
School of Organisation and Management, The University of New South Wales
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Abstract

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The paper employs George Orwell's notion of doublethink in examining three contemporary industrial relations issues. They are the Cole Royal Commission into the building and construction industry, bargaining fees and employee entitlements. The Cole Royal Commission was an inquisition into the heresy of unionism. The decision of a Full Bench of the Australian Industrial Relations Commission on bargaining fees has found that collective bargaining does not pertain to the employer-employee relationship. This decision encourages free-riding to weaken unions. On the other hand, various employee entitlement schemes, developed by the Australian government, to meet obligations of companies to employees when the former collapse, enable, or encourage, companies to free-ride on the backs of taxpayers. The paper concludes with the observation that a bleak future awaits unions.

Type
Research Article
Information
The Economic and Labour Relations Review , Volume 15 , Issue 2 , January 2005 , pp. 181 - 198
Copyright
Copyright © The Author(s) 2005

Footnotes

*

This is a slightly revised and updated version of the The Sir Richard Kirby Lecture to The Industrial Relations Society of Victoria, Melbourne, Victoria 20 August 2003. This lecture was previously delivered at The Industrial Relations Society of New South Wales 2003 Annual Convention, 16–18 May 2003, The Entrance, New South Wales.

References

Notes

1 George Orwell, Nineteen Eighty-Four, Penguin, Melbourne, 1969, p. 171.

2 Tony Abbott, ‘Losing the Legislation Fixation', Proceedings of the XXIIIrd H.R. Nicholls Society Conference, Melbourne, 22-23 March, p. 4; Emwest Products v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2002] FCA1334; Emwest Products v Automotive, Food, Metals, Printing and Kindred Industries Union [2002] FCA 61; and Australian Industry Group v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2002] FCAFC 386.

3 Australian Workers’ Union v BPH Iron-Ore [2002] FCA 3, at paragraph 104.

4 [2001] FCA 3, at 219.

5 For commentaries on these by the author see Braham Dabscheck, Australian Industrial Relations in the 1980s, Oxford University Press, Melbourne, 1989, pp. 113-141; Braham Dabscheck, ‘The Coalition's Plan to Regulate Industrial Relations', The Economic and Labour Relations Review, June 1993; Braham Dabscheck, The Struggle for Australian Industrial Relations, Oxford University Press, Melbourne, 1995 pp.79-116; and Braham Dabscheck, The Waterfront Dispute: Of Vendetta and the Australian Way', The Economic and Labour Relations Review, December 1998.

6 Victoria v Australian Building Construction Employees'and Builders Labourers’ Federation [1982-1983] 152 CLR 25, at page 53. For an examination of the work of Royal Commissions see Stephen Donaghue, Royal Commissions and Permanent Commissions of Inquiry, Butterworths, Sydney, 2001. For a succinct critique of their operation see the minority judgment of Justice Murphy in Building Labourers’ Federation, 152 CLR 25, at 104-112.

7 Royal Commissions Act 1902 (Cth), Section 1A.

8 Builders Labourers’ Federation, 152 CLR 25, at 53.

9 The Macquarie Dictionary, Macquarie Library, Sydney, 1981, p. 915.

10 Orwell, Nineteen Eighty-Four, p. 5.

11 Letters Patent to the Honourable Terence Rhoderic Hudson Cole RDF QC, Entered on Record Register of Patents No. 36, on 29 August 2001.

12 Donaghue, Royal Commissions, p. 32.

13 Final Report of the Royal Commission into the Building and Construction Industry. Volume Two, Conduct of the Commission - Principles and Procedures, Commonwealth of Australia, Canberra, 2003, p. 59.

14 Royal Commission, Volume One, Summary of Findings and Recommendations, pp. 6-10 and 175-7.

15 For critiques of the Royal Commission see The Royal Commission into The Building and Construction Industry: A Howard Government Attack on the Construction Industry [Australian Council of Trade Unions] January D No:11/ 2003; Jim Marr, First The Verdict: The Real Story of the Building Industry Royal Commission, Pluto Press, Sydney 2003; and Peter Sheldon and Louise Thornthwaite, ‘Employer Matters in 2002', The Journal of Industrial Relations, June 2003.

16 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Electrolux Home Products [Electrolux No. 2] [2002] FCAFC 199. Also see Electrolux Home Products v Australian Workers Union [Electrolux No. 1] [2001] FCA1600.

17 Royal Commission, Volume Five, Reform-Establishing Employment Conditions, p. 127.

18 Quoted in Murray V. Mclnerney, ‘Procedural Aspects of a Royal Commission', Part 2, (1951) 24 Australian Law Journal, p. 443. See Report of Royal Commission Inquiry into the origins, aims, objects and funds of the Communist Party in Victoria and other related matters, Government Printer, Melbourne, 1950. „

19 Royal Commission, Vol. 3, National Perspective Part 1, pp. 209-210.

20 Royal Commission, Volume Three, p. 319.

21 Australian Bureau of Statistics, Industrial Disputes, 6321.0, December 2002.

22 Royal Commission, Volume Three, p. 38.

23 Royal Commission, Volume Three, p. 215.

24 Tasman Economics, Productivity and the Building and Construction Industry Report. A report prepared for the Royal Commission into the Building and Construction Industry, 12 November 2002. The report is reproduced in Royal Commission. Volume Four, National Perspective Part 2. The quote is on page 13 of the latter

25 Report prepared by Unisearch Limited University of New South Wales on Workplace Regulation, Reform And Productivity In The International Building And Construction Industry for Royal Commission into the Building and Construction Industry 2002. The report is reproduced in Royal Commission, Volume Four The quote is on page 259 of the latter.

26 Royal Commission, Volume Three, p. 224.

27 The Macquane Dictionary, p. 576.

28 Royal Commission, Volume Three, p. 212.

29 ACIRRT, University of Sydney, Key features and trends in building and construction industry enterprise agreements, Produced for Royal Commission into the Building and Construction Industry, 29 April 2002. The report is reproduced in Royal Commission, Volume Four. The material referred to is from pp. 208-9 of the latter.

30 Federal Collective Agreements in the Construction Industry, Data from the Workplace Agreements Database (WAD) maintained by the Department of Employment and Workplace Relations, 16 August 2002; and Federal Collective Agreements in the Construction Industry Pattern Agreements, Data from the Workplace Agreements Databas.e (WAD) maintained by the Department of Employment and Workplace Relations, 6 September 2002. Both are reproduced in Royal Commission, Volume Four. The quote is from page 232 of the latter.

31 Peter Reith, Second Reading Speech, Workplace Relations Amendment Bill 2000 (Cth), p. 2.

32 Royal Commission, Volume Three, p. 215.

33 Royal Commission, Volume Six, Reform - Occupational Health and Safety, p. 157.

34 Royal Commission, Volume Six, p. 5.

35 He did make four findings where employers had not observed occupational health and safety standards, and several more concerning unions inappropriately using disputes over occupational health and safety for broader, and ‘inappropriate', claims. See note 13.

36 Royal Commission, Volume Six, pp. 6-7

37 See Royal Commission, Volume Four, Recent Reviews of the Building and Construction Industry, pp. 67-147.

38 Royal Commission, Volume One, Recommendations 2-13, pp. 25-36.

39 Claire Mayhew and Michael Quinlan, ‘Subcontractors and occupational health and safety in residential building industry', Industrial Relations Journal, September 1997, p. 202. Commissioner Cole is aware of this negative effect of sub-contracting. See Royal Commission, Volume Six, p. 43.

40 Electrolux No. 1, at 6.

41 Electrolux No. 1; Electrolux No. 2; Webforge, AIRC, PR914378 (18 February 2002); Knox City Council, AIRC, PR914635 (22 February 2002); Health Minders Limited, AIRC PR9209906 (6 August 2002); SGM Electrical, AIRC, PR921937 (30 August 2002); Graeme and Chris Herbert, AIRC, PR922568 (17 September 2002); Atlas Steels, AIRC - Full Bench, PR917092 (29 April 2002), and National Union of Workers, AIRC - Full Bench, PR926554 (10 January 2003). For decisions from other jurisdictions see Skills Training Mackay [2002] QIRComm 14; and Review of the Principles for Approval of Enterprise Agreements 2002, [2002] NSWIRComm 342. Bargaining fees have not been found to breach the freedom of association provisions of the Workplace Relations Act 1996 (Cth). See Accurate Factory Maintenance No. 1, AIRC, PR900919 (9 February 2001); and Accurate Factory Maintenance No. 2, AIRC - Full Bench, PR910205 (12 October 2001). For a general overview of bargaining fees see Graeme Orr, ‘Agency Shops in Australia? Compulsory Bargaining Fees, Union (In)Security and the Rights of Free-Riders', Australian Journal of Labour Law, May 2001.

42 National Union of Workers, at 43.

43 See Braham Dabscheck, ‘The Waterfront Dispute: Of Vendetta and the Australian Way', Economic and Labour Relations Review, December 1998.

44 The Queen v Moore; ex Parte Australian Telephone and Phonogram Officers’ Association, (1982) 148 CLR 600.

45 In 2003 the Workplace Relations Amendment (Prohibition of Compulsory Union Fees) Act 2003 (Cth) outlawed the payment of bargaining fees. It became operative on 9 May 2003. On 2 September 2004 the High Court, by a majority of 6 to 1, in Electolux Home Products vAustralian Workers Union [2004] HCA 40, found that bargaining fees were not ‘about matters’ pertaining to the employer employee relationship.

46 Salomon v Salomon [1897] AC 22.

47 See Transfield, AIRC, PR908287 (30 August 2001); Transfield vAutomotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2002] FCA 1533 and Electrolux No. 1. Also see Joellen Riley, ‘Bargaining for Security: Lessons for Employees from the World of Corporate Finance', The Journal of Industrial Relations, December 2002.

48 Details of these schemes can be obtained from the Department of Employment and Workplace Relations website: http://www.workplace.gov.au.

49 This is the title of Volume One of George Orwell's collected works. See Sonia Orwell and Ian Agnus (editors), The Collected Essays Journalism and Letters of George Orwell, Volume 1: An Age Like This 1920-1940, Seeker and Warburg, London, 1968.

50 Hansard, House of Representatives, 23 May 1996, p. 1298.

51 Royal Commission, First Report, 5 August 2002.

52 George Orwell, Animal Farm, Penguin, Melbourne, 1968, p. 114.

53 Orwell, Nineteen Eighty-Four, pp. 173, 211-5.