Monday, November 14, 2011

Shouting slogans will not further Fair Work debate

It's a compelling narrative: in the 1980s we deregulated the financial markets, slashed import protection and deregulated many markets for particular products. But then it dawned on us that deregulated, highly competitive product markets could hardly co-exist with a centralised, highly regulated labour market.

So Paul Keating started to deregulate the labour market, ending centralised wage-fixing and moving to collective bargaining at the enterprise level. The Liberals' Peter Reith introduced a formal system of individual contracts, Australian workplace agreements, then John Howard completed the process of deregulation by introducing Work Choices.

But then Labor used Julia Gillard's Fair Work Act to re-regulate the labour market. So we've reverted to our original problem of having a regulated labour market that simply doesn't fit with deregulated, trade-exposed product markets.

Just one problem with this neat analysis: it adds up only if you don't actually know much about how the labour market is regulated. The notion that Work Choices deregulated the market and Fair Work re-regulated it is simple, but makes no sense.

Consider this: the Work Choices legislation was much longer, more complex and more intrusive than the law it replaced. Does that sound like deregulation? The Fair Work legislation is considerably shorter and more straightforward. Does that sound like re-regulation?

One of the main complaints against Fair Work is that it has removed the list of ''prohibited content'' about which employers were prevented from agreeing with their unions. Inserting prohibitions in the law is deregulation? Removing prohibitions is re-regulation?

One thing Work Choices did was greatly bureaucratise the right to take industrial action, with the intention of discouraging it. Unions have to hold a postal ballot of their members and achieve a certain proportion of votes to commence a bargaining period after the expiry of their last enterprise agreement.

Then they have to hold another postal ballot before they can undertake protected industrial action during the bargaining period. Then they have to give 72 hours' notice of any action they actually intend to take.

By contrast, employers don't have to jump through any hoops or give any notice when they decide to retaliate by locking out their staff during a bargaining period.

These provisions of Work Choices were carried over largely unchanged in Fair Work. Do they sound terribly pro-union? Do they sound like deregulation? Does continuing them in Fair Work constitute re-regulation?

Confused yet? The simple truth is that ''deregulation'' isn't a sensible description of what Work Choices did and, in consequence, ''re-regulation'' isn't a sensible description of what Fair Work does.

Here's the point: the labour market has always been highly regulated. It remained highly regulated under Work Choices and it's still highly regulated under Fair Work. It's always likely to stay highly regulated for a simple reason: unlike all other markets, the labour market deals with human beings rather than the exchange of inanimate objects.

As a matter of politics, common humanity and common sense, the treatment of people in the labour market will always be carefully regulated. We are, after all, running the economy for the benefit of people.

What changes from time to time is not so much the degree of regulation as the objectives of that regulation. There's a fundamental imbalance of bargaining power between an individual worker and even the smallest employer.

So the main issue the regulation deals with is what should be done about that imbalance. The usual answer - the world over - is to permit workers to bargain collectively.

What Work Choices did - in its original form, at least, before Howard realised he'd gone further than the public would cop - was make individual bargaining far more attractive to employers by removing the ''no-disadvantage test'' which had limited the extent to which workers' wages and conditions could be reduced. A lot of the regulation it added to the system was to constrain the freedom of those employers who chose to continue bargaining collectively with their employees. And it further tightened restrictions on what unions could do.

Howard shifted the balance heavily in favour of employers and tried to delegitimise the (already declining) union movement. It's hardly surprising Labor used its first opportunity to shift the balance back the other way. What is surprising is how many of Work Choices' anti-union provisions it left intact.

All systems of collective bargaining permit unions to take ''protected'' industrial action, subject to certain tight conditions. Why do they need protection? What are they protected from? From being sued by employers in the civil courts because of the economic damage that action has done to the employers' businesses.

See what this means? It means that even if we really did attempt to deregulate the labour market by abolishing the industrial relations act, it would still be regulated by ordinary commercial law and common law. In that imaginary world, it would not be illegal to strike or take other industrial action, but any damage unions inflicted on employers - which, after all, is the very object of industrial action - would leave the unions open to being sued.

So, for all practical purposes, collective bargaining would be impossible - would be prevented by (ordinary civil law) regulation - unless governments regulated to specify the circumstances in which it would be permitted by being protected from actions for civil damages.

Still think it makes sense to talk about deregulating or re-regulating the labour market? There's always legitimate ground for us to debate whether the balance our industrial relations regulation strikes - between protecting workers on the one hand and achieving an efficient-functioning economy on the other - should be shifted in one direction or the other.

But shouting slogans at each other - it's deregulation if I like the latest changes; it's re-regulation if I don't - won't advance the debate one jot.