The Labor Party had done it, there would be screams that the socialist hordes were at the gates ready to rip the fabric of society asunder.
But if it is proposed by the conservative parties, it raises hardly a murmur.
I am talking about John Howard’s Jobsback proposal to set up a Federal bureaucracy (the Office of Employee Advocate) to meddle in the traditional way freedom of contract is upheld in the common-law courts: which allows the rich to hire lawyers so the poor and the oppressed get done.
Is this not like the Office of Race Relations or a Sex Discrimination Commission going into to bat for the oppressed non-WASPs?
In some respects it is. Some workers in Australia are repressed, perhaps more so than in most industrialised nations. This is because of Australia’s legal history. At Federation, the Commonwealth was given a compromised, limited industrial-relations power: one to deal with interstate disputes. It led to the growth of large interstate unions which covered workers in all moderate-sized or bigger businesses. Those employed by small business were largely ignored.
The large unions stood up for workers with both genuine and unjustified grievances. Indeed, they often stood up for the incompetent, dishonest, lazy and idiotic. The result was a prevailing ethos that the workers were too-well looked after, so there was no further work to be done.
Not so. We have developed two classes of employees in Australia: the unionised who can get away with murder to the general detriment of the Australian economy, and the non-unionised workers mainly working for small business who are frequently victims of the boss’s whim.
The latter are not well-treated by the law in Australia. In the unitary states of Europe, including Britain, minimum employment standards prevail and are enforceable in tribunals whether the employee is a member of a union or not. The standards set minimum pay and rules against unfair dismissal and discrimination in the workplace.
In Australia, state law provides public holidays, long-service leave and precious little else. Few states have rules on unfair dismissal. The common law prevails. At common law the boss can boot out long-serving loyal employees on two weeks’ notice. Moreover, it is virtually impossible for employees to enforce their limited rights at common law because the courts don’t work: it often costs more in legal fees (even if you win) than the case is worth.
This is why John Howard’s Employee Advocate and minimum conditions are welcome indeed.
While all the shop stewards and paid union officials have squealed at the prospect of losing their positions of privilege, the other side of the Howard policy is getting less attention. It significantly adds to the rights of hundreds of thousands of employees of small businesses and significantly increases their ability to enforce those rights. It is a long overdue reform.
Of course, many employees in small business get on well with their bosses. Small businesses have to run on teamwork and give and take. Also many small business employees become “”indispensable” _ they can build up such a knowledge of the business that the boss knows they will be very hard to replace. None the less, there are a significant number of employees doing routine work for John Howard’s proposals to have an impact.
Perhaps one of the ironies of Jobsback will be not the effect it has on the big-union, big-company world but its effect on the small-business world. That irony will be the greater because it will come from a party that espouses laissez-faire for small business.
However, the irony will be of little moment. Of more import is the fact that, in what is prided as a fundamentally egalitarian society, it has the potential to rid Australia of the insidious difference between unionised and non-unionised employees.
That said, there is a difficult hurdle: the expensive and cumbersome state court systems. Howard’s Employee Advocate will have a difficult task. Without a specialised streamlined industrial court, the Employee Advocate will have to enforce employment contracts in the state civil courts. These are archaic, expensive, inefficient places, even if you have free legals.
In this environment, employees should note that justice is not dispensed according to merit, but according to the evidence. Anyone who has had any experience of civil litigation would agree that evidence determines the case. That being the case, employees and employers must sharpen their pencils. Make notes. All the time. This is a lesson of the rule of law. It may be tiresome, but it is probably preferable to the rule of the union bully boy.