A Retreat from Individualism? The Fair Work Act 2009 and the Re-collectivisation of Australian Labour Law

摘要

The system of conciliation and arbitration established under the Conciliation and Arbitration Act 1904 was both highly collectivised and highly centralised in character. It was often assumed to be inimical to collective bargaining, although there was in fact a great deal of collective bargaining, both inside and outside the formal system. Starting in the early 1990s, there was a shift away from the traditional emphasis on conciliation and arbitration in favour of formal recognition of collective bargaining at enterprise level. In 1996, a new element was introduced in the form of individual statutory agreements (Australian workplace agreements (AWAs)) which prevailed over, and had the capacity entirely to displace, otherwise applicable collective instruments. Public concern at these developments played a major role in the defeat of the (conservative) Howard Government in 2007. The Labor Government that replaced it was committed to the ‘re-collectivisation’ of the system, and to the abolition of AWAs. This second commitment was honoured in 2008, and a new bargaining regime was put in place by the Fair Work Act 2009. This article examines that new system. It finds that the techniques adopted by the 2009 Act are more sophisticated and nuanced than those that have been adopted in jurisdictions such as the USA, Canada and the UK, and as such seem to avoid many of the pitfalls that have thwarted attempts to promote collective bargaining in those countries. It remains to be seen, however, whether the participants in the bargaining process have the commitment and capacity to enable the legislation to re-collectivise the labour market in any significant way.