Do you want to get engaged? According to Peter Wilson’s Kingsley Laffer lecture, your answer should be, “yes”. The legislative changes which Wilson proposes will, he says, lift “workplace harmony and engagement within Australia’s public and private businesses”. That this may be no easy task is emphasised by Wilson’s later description of worker engagement as the “continuing Achilles Heel of modern organizational life”.
So, to what extent can legislative change drive worker engagement? Obviously, there is not much point in trying to pass the “Workers Must Enjoy Their Jobs Act 2014” – even if you could get it through the Senate, the enforcement process might be, well, tricky.
However, legislation can drive engagement, as Wilson demonstrates, if legislation clears away the obstacles which would otherwise block the direct relationship between workers and employers. In the context of a globalised economy, obstacles which block international relationships are rapidly being swept away; in the context of the Australian economy, obstacles which block the interpersonal relationships which are so necessary to good industrial relations should suffer the same fate.
The problem with the word “engage” in an industrial context, of course, is that it was once the last word heard before two scrums collided on the rugby field – that is, as a call to combat rather than to harmony. It isn’t so long ago that a Full Bench of the Australian Industrial Relations Commission told us that that “the adage “all is fair in love and war” is, we think, as much applicable to industrial warfare as to any other type”. Industrial engagement in the form of collective set-piece battles has been declining in recent years, and although that decline should be celebrated, it does not mean that we can cease work on dismantling the policy settlings which favoured adversarial engagement.
Regrettably, however, discussion of industrial legislative reform too often triggers another kind of adversarial engagement; namely, name-calling. Most sensible people recognise that in enacting WorkChoices, the Howard Government went too far; as Wilson aptly puts it, “the WorkChoices model was not sustainable”. However, one lasting consequence of WorkChoices appears to be that those who oppose reform think that it is sufficient for them to shout “WorkChoices!” loudly enough and frequently enough in order to defeat any proposal for change. When faced with such a response, proponents of change are entitled to say, “That was then, and this is now”.
The question then becomes, “what legislative changes can be made to drive engagement across a workforce made up of a number of disparate demographic groups?” In my view, there are number of answers to this.
The first is that there is a legitimate role for statutory individual agreements. The present legislation recognises this reality, but the so-called individual flexibility agreements are neither flexible nor, in many cases, particularly individual. As Wilson demonstrates, many employees want to engage in crafting their own individual workplace outcomes as long as those outcomes are fair. Fairness can be achieved through transparency, such as by mandating the publication of a precedent bank of agreements which do (and which do not) meet a suitable fairness test, as used to be the case when collective agreements were published on a searchable basis.
The second is that modern awards need to be actually modernised. Accepting that a lot of work was done to bring together disparate State and Federal awards into a national scheme, the next step is to simplify that national scheme. There are still too many workplaces where multiple awards are applicable, and there is no surer recipe for disengagement (or most other kinds of industrial disharmony) than to have two workers under the one roof doing what looks like similar work, but on different terms and conditions. In 2008, Julia Gillard (who was then the Minister for Employment and Workplace Relations), said of the changes which were to occur as part of the modern award system:
“Those who seek to preserve their niche in the system via a monopoly of knowledge about unnecessary complexity will have to reconsider and get used to a new way of thinking about awards.”
As someone who occasionally plies a trade in “knowledge about unnecessary complexity”, my view is that there is still too much of it. Although it keeps me busy, there is other work I can do, which both I, and my clients, usually find to be much more engaging.
Finally, once the Fair Work Commission has finished modernising awards, it should modernise itself. An adversarial system which encourages workers and employers to hand their disputes to someone else to resolve does not assist engagement in the resolution of those disputes close to source. There is merit in Wilson’s view that much of the work of the Fair Work Commission would benefit from the adoption of an inquisitorial, rather than an adversarial, approach.
The history of Australian industrial relations is, in many ways, distinctively Australian. This does not guarantee that the future of Australian industrial relations will be (or should be) distinctively Australian; there are global trends to consider which we could not stop at the border even if we sought to do so. However, in order to make the best of global trends, we first need to ensure that we know what we want from our Australian system. We need to engage in research, in debate, in reform; and we need all for us, workers and employers, unions and business leaders (and even lawyers) to be in it together.