The Law and the Labour Market


NR Evans

In September 1991 The H R Nicholls Society held its XIth conference in Adelaide, the first time the Society had been to South Australia. The conference was an outstanding success, not only in terms of numbers of participants and quality of papers but in the excitement and enthusiasm which characterised the weekend.

A notable participant at the conference was Mr Ian Spicer, Chief Executive of the Confederation of Australian Industry who accepted the Society's invitation to respond to criticism of the CAI which had been voiced, and subsequently published, at the Society's conference held at Bronte in March 1990 (published as 'Public Interest or Vested Interest').

In his paper Mr Spicer concentrated on the future rather than on the past, and the CAI is obviously rethinking its position, as opinion within the Australian business community concerning our industrial relations institutions changes.

The keynote speaker was Dr Ron Silberberg of the Housing Industry Association. The HIA represents the contractors and sub-contractors of the domestic building industry, an industry unique in Australia in that it operates almost entirely on a contractual and unregulated basis. It is also an example of an Australian industry which is at the cutting edge of international competitiveness. His paper reminds us that Australians can be the best in the world, at their jobs, if they are allowed to compete without crippling handicaps. At the same time, they can make good livings without the efforts of trade unions and arbitral tribunals to protect them from 'exploitation'.

Australia's waterfront has been regarded at home and abroad as a scandal or a joke (depending on where you sit) for decades. There have been numerous official enquiries into the stevedoring and maritime industries, a recent and perceptive example being the ISC Report of March 1989. Government response to this scandal and to the reports of official enquiries was to establish a reform process under the aegis of a body entitled WIRA (Waterfront Industry Reform Authority). The success or otherwise of Government sponsored reform has been a subject of continuing debate and the Society was fortunate to have two of the leading protagonists for reform on the Australian waterfront, David Boyd, Managing Director of National Terminals Australia Ltd, and Richard Setchell, Managing Director, ConAust Ltd, present progress reports on the reform program.

One of the earliest examples of the successful use of the common law by victims of trade union unlawfulness against their oppressors was the Kangaroo Island Woolgrowers Case. One of the key participants in this struggle was Bill Kelly, brother to the Modest Member, Bert Kelly, and this story is now published in full, in these proceedings, for the first time. It is a moving story of the solidarity of a small farming community against oppression, and should be more widely known and discussed.

In every discussion of labour market reform the impact of constitutional, statute and common law becomes central. Australia's labour market problems are embedded in the Constitution itself in Section 51, Pl xxxv, the Industrial Relations power, which H B Higgins, with the totally unexpected support of Sir John Forrest, persuaded the Convention of 1897 to adopt. It is impossible for the H R Nicholls Society to refine and develop the arguments and evidence for reform without becoming deeply immersed in legal arguments. In this publication two eminent legal academics, Dr Graham Smith and Mr Greg Craven, discuss constitutional and common law aspects of reform. Their papers were widely circulated after the conference and have contributed to a better understanding of the problems which have to be surmounted.

These proceedings add to the important body of documentation which the Society has, through its program of conferences and publications, created. This important work has been made possible only through the loyalty and continuing support of the members of the Society.