The industrial relations landscape is well overdue for an overhaul in order to tackle increasing inequality and stagnating wages, University of Adelaide Professor Andrew Stewart said.
Professor Stewart is the John Bray Professor of Law at the University of Adelaide and legal consultant to the law firm Piper Alderman. He is an editor of the Australian Journal of Labour Law and co-director of the Adelaide School’s Work and Employment Regulation research group.
Addressing the IEUA National Forum in Adelaide recently, Professor Stewart reviewed the Fair Work Act, which took effect on 1 July 2009, replacing the Workplace Relations Act 1996.
The Act was part of Labor’s Forward with Fairness policy, intended to ‘restore balance’ after Work Choices reforms.
It has been relentlessly criticised by employer groups and is now under sustained attack from the union movement as well, Professor Stewart said.
The Coalition’s 2013 strategy for a radical overhaul was foiled by a failure of the Productivity Commission in its 2015 review to recommend major changes and a loss of political will before and after the 2016 election.
Labor has come to recognise that the system is ‘broken’ and in need of change. Professor Stewart said the Fair Work Act preserved the architecture but not much of the substance of the arbitration system.
Problems include the awards system, and associated ‘layering’ of instruments, non-union collective agreements and a very limited right to take industrial action.
Professor Stewart said the case for overhauling the Fair Work Act is overwhelming. The Fair Work Act has not dealt with:
- the growth of insecure work
- provided sustained wages growth
- provided a living wage for the lowest paid
- delivered equal pay
- prevented rampant wage theft
- grown collective bargaining, or indeed prevented it collapsing, and
- provided a right to strike.
He said there is a big question as to whether that change can or should be accommodated within the current architecture.
If a Coalition government wins the forthcoming election it would most likely be content or compelled to seek change primarily through non-legislative means.
A Labor government might be willing to tinker or perhaps create a new act, but not rethink fundamentals of the current system, Professor Stewart said.
There’s only so much that changing the law can achieve, in the face of short-termism in both business and government, Professor Stewart said.
Problems faced include:
- the privileging of shareholders and consumers over workers and social wellbeing
- the gendered division of domestic labour and the undervaluation of women’s skills and abilities
- societal resistance to collective action, and
- the default to adversarial rather than cooperation.
But that’s not to say we shouldn’t try, he concluded.
Professor Stewart’s recent published books include Stewart’s Guide to Employment Law, Creighton & Stewart’s Labour Law Cooperation at Work (with Mark Bray and Johanna Mac Neil) and The Wages Crisis in Australia (co-edited with Jim Stanford and Tess Hardy).
His current research includes Australian Research Council funded projects on the regulation of unpaid work experience and the organisation of work through digital platforms.