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Gardiner, Mary --- "His Master's Voice? Work Choices as a Return to Master and Servant Concepts" [2009] SydLawRw 2; (2009) 31(1) Sydney Law Review 53

[1]

* Candidate, Master of Labour Relations Law, The University of Melbourne and a Commonwealth public servant. The views expressed in this article are the author’s own. I would like to thank John Howe and Jill Murray for their advice and encouragement and the two anonymous referees for their helpful comments.

1 The Hon Kim Beazley, Leader of the Opposition, ‘Australian Values at Work’ (Speech delivered to the NSW ALP State Conference, 11 June 2006).

[2]The Hon Kevin Rudd, Leader of the Opposition, quoted in Katharine Murphy and Michael Bachelard, ‘I’ll Kill Work Choices’, Sydney Morning Herald (2 February 2007).

[3]The Howard Liberal/National government introduced the Workplace Relations Amendment (Work Choices) Act 2005 (Cth). This amended the Workplace Relations Act 1996 (Cth) which remained unchanged in name. Most elements of the new legislation took effect on 27 March 2006. Both the Amendment Act and the revised Act were commonly referred to as ‘Work Choices’. The main changes involved moving the primary constitutional power by which the Federal government intervened in industrial matters from the conciliation and arbitration power to the corporations power, strengthening the place of individual agreement making and reducing the role of trade unions. In this article I refer to the policy as ‘Work Choices’ and both the amending and amended Acts as the ‘Work Choices Act’.

[4]Fair Work Bill 2008 (Cth).

[5]Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008 (Cth).

[6]Fair Work Bill 2008 (Cth) s 194(f) and (g).

[7]Fair Work Bill 2008 (Cth) s 595.

[8]However the new mechanism to update awards has been described as broad enough to allow awards ‘to be dynamic and relevant and adjusted to community standards’. Cath Bowtell, Senior Industrial Officer, Australian Council of Trade Unions, quoted in ‘BOOT Test Tougher than NDT, says AIG; ACTU Disagrees’ Workplace Express (28 November 2008).

[9]Fair Work Bill 2008 (Cth) ss 202–204.

[10]‘Some of the tensions and evasions in the Act are not rational in the sense this term is usually applied to law’: Jill Murray, ‘Work Choices and Australian Statutory Labour Law’ (2006) 35 Industrial Law Journal 343 at 364; Andrew Stewart, ‘Work Choices in Overview: Big Bang or Slow Burn?’ (2006) 16 The Economic and Labour Relations Review 26 refers to the ‘peculiar political timidity at the heart of the Work Choices reforms’; Peter Waring, John Burgess and Alex de Ruyter, ‘The Australian Fair Pay Commission: Rationale, Operation, Antecedents and Implications’ (2006) 16 The Economic and Labour Relations Review 127 in describing the establishment of the Australian Fair Pay Commission state: ‘Like much of the Work Choices legislation the basis for claims rests on assertions and beliefs, rhetoric and wishful thinking’.

[11]See Murray, above n10 at 361–5 for a discussion on the lack of rationale and objective research into the need for new legislation by the government; see also Stewart, above n10 for the lack of opportunity for public comment and Waring, Burgess and de Ruyter, above n10 on the healthy state of the Australian economy around the time of the introduction of Work Choices.

[12]Marian Baird, Rae Cooper and Damian Oliver, ‘Down and Out with Work Choices: the Impact of Work Choices on the Work and Lives of Women in Low Paid Employment’ (Report to the Office of Industrial Relations, Department of Commerce, 2007); David Peetz, ‘Brave New Work Choices: What is the Story So Far?’ (Paper presented to the Association of Industrial Relations Academics of Australia and New Zealand, 21st Conference, Auckland, 2007).

[13]Workplace Amendment (A Stronger Safety Net) Act 2007 (Cth) (‘Amendment Act’).

[14]‘I said at the outset that this government trusts employers and employees to make the right decisions in the workplace. Mr Speaker, the era of the select few making decisions for the many in the industrial relations system is now over’: Commonwealth, Parliamentary Debates, House of Representatives, 26 March 2005 (John Howard, Prime Minister) at 43; Joel Fetter, ‘Work Choices and Australian Workplace Agreements’ (2006) 19 Australian Journal of Labour Law 210 at 210–12. The extent to which Australia should open its markets, reduce government intervention in employment matters and reduce labour arbitration has been a debate about degree rather than kind in Australian politics since the early 1980s. See Paul Kelly, The End of Certainty (2nd ed, 2008) for a detailed account of the progress of this debate which created internal divisions in both the Labor and the Liberal/National parties.

[15]‘Despite the introduction of the Workplace Relations Act in 1996 Australia still has an over-regulated system. There is a legacy of adversarial relations and restrictive work practices which impede the Australian economy from reaching its full capacity, both in respect to productivity and in meeting other economic and social goals, such as lowering unemployment and increased workforce participation’: Kevin Andrews, then Minister for Employment and Workplace Relations, ‘A New System for a New Century’ (Speech delivered at Clayton Utz Seminar, 20 April 2005); ‘A national system is the next logical step towards a workplace relations system that supports greater freedom, flexibility and individual choice. It is not about empowering Canberra, but liberating workplaces right across the country’: Howard, above n14 at 42.

[16]Steven Kent Vogel, Freer Markets, More Rules: Regulatory Reform in Advanced Industrial Countries (1996) at 3.

[17]‘Currently the process is long and frustrating to employers and employees, preventing many from coming to their own arrangements at the workplace … Mr Speaker, the era of the select few making decisions for the many in Australian industrial relations is over’: Howard, above n14 at 6 and 12.

[18]For example Ray Evans of the HR Nicholls Society, described Work Choices as ‘an unhappy story of disappointment and lost opportunity’: Ray Evans, ‘President’s Report’ (Speech delivered at the 2005 Annual General Meeting, HR Nicholls Society, 5 December 2005) at 5. Stewart, above n10 suggests that the government could have swept away existing laws and institutions in the manner of the New Zealand Employments Contracts Act 1991 (NZ) or the Victorian Employees Relations Act 1992 (Vic).

[19]Rosemary Owens and Joellen Riley, The Law of Work (2007) at 130–2.

[20]Stewart, above n10 at 2, 17.

[21]Ibid. See also the proscription against unfair dismissal provisions: Workplace Relations Regulations 2006 (Cth) (‘WR Regulations’) reg 8.5(5).

[22]Howard, above n14 at 9.

[23]Otto Kahn-Freund, ‘A Note on Status and Contract in British Labour Law’ (1967) 30 The Modern Law Review 635 at 640, referring to the definition of status by Sir Henry Sumner Maine writing in 1861. Maine considered this lack of choice to be acquired in one of two ways — by birth or by an inability to form judgment. According to Kahn-Freund, Maine’s definition of status in modern terms would only apply to children, people with a mental disability or non-citizens.

[24]Douglas Hay and Paul Craven, ‘Introduction’ in Douglas Hay and Paul Craven (eds) Masters, Servants and Magistrates in Britain and the Empire, 1562–1955 (2004) at 36; Robert J Steinfeld, The Invention of Free Labor: The Employment Relation in English and American Law and Culture 1350–1870 (1991) at 11.

[25]Hay and Craven, above n24 at 35–6.

[26]Murray, above n10 at 362–4.

[27]In 2002, Tony Abbott scolded employers for not utilising the Australian industrial relations commission for their own ends: ‘The fact that it's hard to remember when employer organisations last seriously sought to use the Commission pro-actively suggests a worrying form of defeatism’: The Hon Tony Abbott, then Minister for Workplace Relations, ‘Losing the Legislation Fixation’ (Paper presented at the proceedings of the XXIIIrd HR Nicholls Society Conference, Melbourne, 22–23 March 2002).

[28]Simon Deakin, ‘Legal Origins of Wage Labour: the Evolution of the Contract of Employment from Industrialisation to the Welfare State’, in Linda Clarke, Peter de Gijsel and Jörn Janssen (eds), The Dynamics of Wage Relations in the New Europe (2000) at 33; John Howe and Richard Mitchell, ‘The Evolution of the Contract of Employment in Australia: a Discussion’ (1999) 12 Australian Journal of Labour Law 113.

[29]Master and servant laws were also used against collective action, by tying workers to their contract obligations to prevent strikes or, particularly in former slave colonies, by directly outlawing collective bargaining. See for example Order-In-Council (draft) (1833) ss 5, 7 for British Guiana where if three or more workers combined to dispute they could be charged with unlawful conspiracy and be imprisoned with hard labour and 39 lashes; Hay and Craven, above n24 at 317.

[30]‘We should be trying to move to an industrial relations system where the predominant instrument is the individual contract, which provides high wages in return for good productivity and where there’s ease of entry, ease of exit’: Peter Costello, then Treasurer, in Michael Gordon, ‘Costello’s Very Own Crusade’ The Age (19 February 2005) at 7.

[31]Richard B Freeman and James L Medoff, What Do Unions Do? (1984).

[32]Victorian State Act (1864) 27 Vic 198, s 16.

[33]Keith Hancock and Sue Richardson, ‘Economic and Social Effects’ in Joseph Isaac and Stuart Macintyre (eds) The New Province for Law and Order (2004) at 139.

[34]Murray, above n10 at 365.

[35]Michael Quinlan, ‘Pre-Arbitral Labour Legislation in Australia’ in S Macintyre and R Mitchell (eds) Foundations of Arbitration (1989) 29; Michael Quinlan, ‘Australia 1788–1902. A Workingman’s Paradise?’ in Hay and Craven (eds) Masters, Servants, and Magistrates above n24 at 241–7.

[36]Mary Gardiner, ‘Come Spring: The Australian Fair Pay Commission as Legal Transplant’ (2007) 20 Australian Journal of Labour Law 159 at 177. Work Choices was cited by most commentators, and even Howard government ministers, as a major factor in the defeat. ‘The people have spoken, the Labor Party has a mandate to tear up WorkChoices and they'll be able to use that mandate’: The Hon Joe Hockey quoted in Kathaerine Murphy and Michael Bachelard, ‘Liberal Moderates Ditch Work Choices in Race to Centre’ The Age (28 November 2007).

[37]Steinfeld, above n24 at 10; Hay and Craven, above n24 at 26.

[38]Hay and Craven, ibid.

[39]Id at 28.

[40]Ibid.

[41]Id at 33.

[42]Id at 26.

[43]John Howe, ‘“Deregulation” of Labour Relations in Australia: Toward Command and Control’ (Working Paper No 34, Centre for Employment and Labour Relations Law, University of Melbourne, 2005) at 6.

[44]Richard Johnstone and Richard Mitchell, ‘Regulating Work’ in Christine Parker, Colin Scott, Nicola Lacey and John Braithwaite (eds) Regulating Law (2004) at 104.

[45]Adrian Merritt, ‘The Historical Role of Law in the Regulation of Employment — Abstentionist or Interventionist?’ (1982) 1 Australian Journal of Law and Society 56 at 62.

[46]Johnstone and Mitchell, above n44 at 104.

[47]Ibid.

[48]Howe and Mitchell, above n28.

[49]Johnstone and Mitchell, above n44 at 104.

[50]Kahn-Freund, above n23 at 686.

[51]Deakin, above n28.

[52]Johnstone and Mitchell, above n44 at 106–7; Merritt, above n45; Otto Kahn-Freund, ‘Blackstone’s Neglected Child: the Contract of Employment’ (1977) 93 Law Quarterly Review 508; Howe and Mitchell, above n28.

[53]Steinfeld, above n24 at 19.

[54]Id at 64.

[55]Ibid.

[56]Deakin, above n28 at 36; Howe and Mitchell, above n28 passim; Kenneth William Wedderburn, The Worker and the Law (1971) at 75–6; Mark Freedland, The Personal Employment Contract (2003) at 5.

[57]Deakin, above n28 at 33.

[58]Steinfeld, above n24 at 99.

[59]The Statute of Artificers (1562) 5 Eliz, c 4, ss IV and VI.

[60]Steinfeld, above n24 at 118.

[61]Lawrence Stone, The Family, Sex and Marriage in England, 1500–1800 (1979) at 164.

[62]Harry Braverman, Labor and Monopoly Capital: The Degradation of Work in the Twentieth Century (1974) at 59–69.

[63]Id at 70–83.

[64]Quinlan, ‘Pre-Arbitral’, above n35 at 27; Merritt, above n45 at 57–8.

[65]Alan Fox, Beyond Contract: Work, Power and Trust Relations (1974) at 183–4; Merritt, above n45 at 58.

[66]Deakin, above n28 at 32.

[67]Master and Servant Statute (1747) 20 Geo II, c 19 (‘1747 Act’); Deakin, above n28; Merritt, above n45 at 57.

[68]Merritt, above n45 at 57.

[69]Quinlan, ‘Pre-Arbitral’ above n35 at 30.

[70]Quinlan, ‘Workingman’s Paradise’ above n35 at 225. The 1840 Western Australian Bill empowered magistrates: To hear and determine all cases of complaint by or against master and servants of every description, whether domestic servants, servants in husbandry, or any other sort of servants, or by or against artificers, workmen, and labourers of every description employed to perform any work, whether by the hour, or by the day, or in any other manner in respect of time, or by the piece, or the job, or in any other manner in respect of work: Western Australian Bill (1840) 4 Vic No 2, cited in Ian Henry Vanden Driesen, Filling in the Gaps. Five Essays on the Labour History of Western Australia (2003) at 84.

[71]Quinlan, ‘Workingman’s Paradise’ above n35 at 225.

[72]Quinlan ‘Pre-Arbitral’ above n35 at 30 remarks: ‘Indeed, British authorities found the early laws to be so sweeping in scope, so lop-sided, so arbitrary (in terms of discretionary powers geanted to magistrates) and so repugnant to British notions of justice that the 1828 NSW Act was only assented to after some deliberation, and the first statutes intorduced into South Australia (1837), Tasmania (1837) and Western Australia (1840) — all similar to the NSW statute — were disallowed.’

[73]Vanden Driesen, above n70 at 85.

[74]Quinlan, ‘Workingman’s Paradise’ above n35 at 225. However some of the Acts that were allowed do not seem that much less wide ranging. The definition of ‘servant’ in the NSW Act of 1840 are: ‘artificer, manufacturer, journeyman, workman, shepherd, laborer or other male servant … engaged for the execution, performance and completion of any work, job or business taken in task by the piece or in gross’: Act to Ensure the Fulfilment of Engagements and to Provide for the Adjustments of Disputes Between Masters and Servants in New South Wales and its Dependencies (1840) 4 Vic 23 (NSW) (‘NSW 1840 Act’) s 2. Merritt notes the specific inclusion of ‘shepherd’ in the NSW 1840 Act, probably because at that time shepherds were the main subject of labour disputes and the makers of the Act wanted to be sure of their inclusion. She also notes the change of the term ‘menial’ to ‘manual’ which meant skilled occupations were also captured, not just servile or domestic ones: Merritt, above n45 at 66. Most Master and Servant Acts in Australia also included piecework, so workers whom we would now view as genuine independent contractors were also subsumed by the laws: NSW 1840 Act s 2; Masters and Servants Statute (1864) 27 Vic No 198 (Vic) (‘Victorian 1864 Act’) s 12; See also Quinlan, ‘Workingman’s Paradise’ above n35 at 233–4.

[75]Deakin, above n28 at 32.

[76]Vanden Driesen, above n70 at 87.

[77]The Victorian 1864 Act repealed the Act to Amend and Consolidate the Laws between Masters and Servants in New South Wales (1845) 9 Vic No 27 (NSW) (‘NSW 1845 Act’). The colony of Victoria relied on NSW legislation until it passed its first master and servant Act in 1864. This Act repealed the NSW 1845 Act but is very similar in provisions and penalties to the NSW 1845 Act, which in turn was very similar to the NSW 1840 Act.

The NSW 1845 Act repealed the NSW 1840 Act which did not include any general prohibitions against disobedience or misconduct by servant or ill-treatment of servant by master, had no discharge certificate, refusal of necessary provisions or dishonoured cheque provisions, did not include livestock in the damaging property provision, required ‘double the value’ (!!) to be paid as compensation for damage rather than ‘reasonable damages’ in the NSW1845 Act, did not have a lesser penalty for mere negligence rather than wilful damage and referred to ‘sum’ rather than ‘wages’ in the recovery of moneys provision. The NSW1840 Act had fewer provisions — the additional ones include both pro-employer and pro-employee provisions.

[78]Victorian 1864 Act s 11.

[79]Victorian 1864 Act s 12. The hard labour option was for obtaining an advance and then refusing to serve.

[80]Victorian 1864 Act s 11.

[81]Victorian 1864 Act s 11.

[82]Victorian 1864 Act s 12.

[83]Victorian 1864 Act s 27.

[84]Victorian 1864 Act s 16.

[85]Victorian 1864 Act s 27.

[86]David Neal, The Rule of Law in a Penal Colony: Law and Power in Early New South Wales (1991) at 134.

[87]Quinlan, ‘Workingman’s Paradise’ above n35 at 240.

[88]Though the question of how far correction followed contract was a matter for debate and disagreement in discussions over the scope of authority a master who ‘contracted’ with a servant had. See Steinfeld, above n24 at 118–20.

[89]Stuart Macintyre and Richard Mitchell, ‘Introduction’ in Stuart Macintyre and Richard Mitchell (eds) Foundations of Arbitration (1989) at 11–12.

[90]Quinlan, ‘Workingman’s Paradise’ above n35 at 246.

[91]Paul Craven, ‘Canada, 1670–1935: Symbolic and Instrumental Enforcement in Loyalist North America’ in Hay and Craven (eds) Masters, Servants, and Magistrates above n24 at 202.

[92]Quinlan, ‘Workingman’s Paradise’ above n35 at 247.

[93]Macintyre and Mitchell, above n89 at 9; Quinlan, ‘Workingman’s Paradise’, above n35 at 247.

[94]Christopher Frank, ‘Britain: The Defeat of the 1844 Master and Servants Bill’ in Hay and Craven (eds) Masters, Servants, and Magistrates above n24 at 421. The bill was ‘A Bill for Enlarging the Powers of Justices in Determining Complaints between Masters, Servants, and Artificers, and for the More Effectual Recovery of Wages before Justices.’

[95]Macintyre and Mitchell, above n89 at 15–18.

[96]Howe and Mitchell, above n28 at 6.

[97]Breen Creighton and Andrew Stewart, Labour Law (4th ed, 2005) at 99.

[98]Hancock and Richardson, above n33 at 203.

[99]Howe, above n43 at 20–1; Sean Cooney, John Howe and Jill Murray, ‘Time and Money Under Workchoices: Understanding the New Workplace Relations Act as a Scheme of Regulation’ [2006] UNSWLawJl 12; (2006) 29 The University of New South Wales Law Journal 215 at 223–5.

[100]Cooney, Howe and Murray, above n99; Howe, above n43 at 20–2.

[101]Hancock and Richardson, above n33.

[102]Stephen Deery and Richard Mitchell, ‘The Emergence of Individualisation and Union Exclusion as an Employment Relations Strategy’ in Stephen Deery and Richard Mitchell (eds) Employment Relations Individualisation and Union Exclusion: An International Study (1999) at 3–6.

[103]WR Act 1996 s 170.

[104]WR Act 1996 s 170LK.

[105]WR Act 1996 s 298A.

[106]WR Act 1996 s 189(1)(j).

[107]Owens and Riley, above n19 at 102.

[108]I refer to the amended WR Act 1996 as the ‘Work Choices Act’.

[109]Howe, above n43.

[110]Stewart, above n10 at 17.

[111]The belief that employees should know their place naturally led to a belief in the illegitimacy of the union movement and the power they wielded. Hugh Morgan, former Western Mining Corporation’s Executive Director and influential advocate of New Right philosophies said in 1986: ‘They are our masters. Can you name any other country in the world that has to take its budget to the trade union movement and get approval before putting it to the House?’: Quoted in Kelly, above n14 at 261.

[112]Convention Concerning the Promotion of Collective Bargaining (ILO No 154), adopted 19 June 1981, 1331 UNTS 267 (entered into force 11 August 1983); Convention Concerning Freedom of Association and Protection of the Right to Organise (ILO No 87), adopted 9 July 1948, 68 UNTS 257 (entered into force 4 July 1950); Convention Concerning the Application of the Principles of the Right to Organise and to Bargain Collectively (ILO No 98), adopted 1 July 1949, 96 UNTS 257 (entered into force 18 July 1951).

[113]Asahi Diamond Industrial Australia Pty Ltd v Automotive, Food, Metals and Engineering Union (1995) 59 IR 385; Australian Workers Union v BHP Iron-Ore Pty Ltd [2001] FCA 3; (2000) 106 FCR 482; Ron McCallum, ‘Good Faith Bargaining, Protected Action and the Need for a Statutory Trade Union Recognition Procedure’ (Paper presented at the Tenth Annual Labour Law Conference, Sydney, 21 March 2002); Braham Dabscheck, ‘The Slow and Agonising Death of the Australian Experiment with Conciliation and Arbitration’ (2001) 43 Journal of Industrial Relations 277.

[114]WR Act 1996 s 89(a) permitted the AIRC to exercise its arbitration powers only ‘as a last resort’.

[115]Sensis Pty Ltd v Members of the Full Bench of the Industrial Relations Commission [2005] FCAFC 74; (2005) 145 FCR 570; Andrew Stewart, ‘The AIRC’s Evolving Role in Policing Bargaining’ (2004) 17 Australian Journal of Labour Law 245.

[116]The AIRC could issue orders in highly specified situations such as unprotected industrial action (Work Choices Act s 496), pattern bargaining (s 431) or under exceptional circumstances when directed by Minister (s 498(5)(c)); Anthony Forsyth, ‘Arbitration Extinguished: the Impact of the Work Choices Legislation on the Australian Industrial Relations Commission’ (2006) 32 Australian Bulletin of Labour 27.

[117]Kahn-Freund, above n23 at 640.

[118]Work Choices Act s 400(6). Prior to the Work Choices Act, several cases had indicated that such action did not constitute duress or coercion under the law: Schanka v Employment National (Administration) Pty Ltd [2000] FCA 202; (2000) 97 FCR 186 at 193; Maritime Union of Australia v Burnie Port Corp Pty Ltd [2000] FCA 1189; (2000) 101 IR 435.

[119]Work Choices Act s 400(6).

[120]Work Choices Act s 330; Braham Dabscheck, ‘The Contract Regulation Club’ (2006) 16 The Economics and Labour Relations Review 2.

[121]‘There is, however, no obligation to negotiate in good faith and there is certainly no obligation on an employer to negotiate one form of agreement rather than another’: Sean Cooney, ‘Command and Control in the Workplace: Agreement Making under Work Choices’ (2006) 16 The Economic and Labour Review 147.

[122]Work Choices Act s 335 (3).

[123]Inquiry into Boeing Dispute [2006] NSWIRC 52 at 234; See also United Collieries Pty Ltd v Construction, Forestry, Mining and Energy Union [2006] FCA 904; (2006) 153 FCR 543 at [25] (Gyles J): Work Choices sanctions ‘a power struggle with no holds barred’.

[124]Stewart, above n10 at 17.

[125]Hugh Collins, ‘Justifications and Techniques of Legal Regulation of the Employment Relation’ in Hugh Collins, Paul Davies and Roger W Rideout (eds) Legal Regulation of the Employment Relation (2000) at 6.

[126]Johnstone and Mitchell, above n44 at 106.

[127]Re Cram; Ex parte NSW Colliery Proprietors Association Ltd [1987] HCA 28; (1987) 163 CLR 117.

[128]Malik v Bank of Credit & Commerce International SA (in liq) [1997] UKHL 23; [1998] AC 20; Burazin v Blacktown City Guardian Pty Ltd [1996] IRCA 371; (1996) 142 ALR 144; Douglas Brodie, ‘Mutual Trust and the Values of the Employment Contract’ (2001) 30 Industrial Law Journal 84.

[129]Katherine VW Stone, ‘The New Psychological Contract: Implications of the Changing Workplace for Labor and Employment Law’ (2001) 48 UCLA Law Review 519.

[130]Joellen Riley, ‘Mutual Trust and Good faith: Can Private Contract Law Guarantee Fair Dealing in the Workplace?’ (2003) 16 Australian Journal of Labour Law 28 at 31.

[131]If the government had been genuine about wanting to make the relationship between employer and employee more of a partnership but without explicit support for collective bargaining, it could have done what New Zealand did in 2000 and 2004. ‘[I]t is possible to make simple modifications to the common law principles (such as defining a duty of good faith or imposing a duty of mutual trust and confidence) in order to moderate the disadvantage’: Cooney, above n121.

[132]Bradon Ellem, Marian Baird, Rae Cooper and Russell Lansbury, ‘“WorkChoices”: Myth-Making at Work’ (2005) 56 Journal of Australian Political Economy 13 at 26.

[133]Tara J Fenwick, ‘Learning as Grounding and Flying: Knowledge, Skill and Transformation in Changing Work Contexts’ (2006) 48 Journal Of Industrial Relations 691; Peter H Sawchuk, ‘“Use-value” and the Rethinking of Skills, Learning and the Labour Process’ (2006) 48 Journal of Industrial Relations 593.

[134]John Mathews, Catching the Wave: Workplace Reform in Australia (1994) at 285.

[135]John P Kotter, A Force for Change: How Leadership Differs from Management (1990); Peter Drucker, People and Performance: the Best of Peter Drucker on Management (2007); Peter Senge, The Fifth Discipline: The Art and Practice of the Learning Organization (1994).

[136]Joellen Riley, ‘Who Owns Human Capital? A Critical Appraisal of Legal Techniques for Capturing the Value of Work’ (2005) 18 Australian Journal of Labour Law 1 at 24.

[137]Kelly, above n14 at 271–81.

[138]For example, Personal/Carer’s Leave 1995; Parental Leave for Casual Employees, 2001.

[139]See a number of case studies on the introduction of teams, technological change and skill based pay in Mathews, above n134.

[140]Richard Mitchell and Joel Fetter, ‘Human Resource Management and Individualisation in Australian Labour Law’ (2003) 45 Journal of Industrial Relations 292 at 317.

[141]Jill Murray, ‘The AIRC’s Test Case on Work and Family Provisions: The End of Dynamic Regulatory Change at the Federal Level?’ (2005) 18 Australian Journal of Labour Law 325 at 342–3.

[142]John Howard, ‘Workplace Relations Reform: the Next Logical Step’ 17 The Sydney Papers (3/4) 78; Bradon Ellem, ‘Beyond Industrial Relations: WorkChoices and the Reshaping of Labour, Class and the Commonwealth (2006) 90 Labour History 211; ‘Provided no coercion, intimidation or fraud is involved, and provided minimum standards are met, the Government believes that workers and managers should be allowed to act like adults capable of making their own choices’: The Hon Tony Abbott, ‘Reflections of a New Boy’ (Paper presented at the proceedings of the XXIInd HR Nicholls Society Conference, Melbourne, 23–24 March 2001).

[143]Work Choices Act s 356. WR Regulations reg 8.5.

[144]WR Regulations reg 8.5 (1) (a), (c) and (g) respectively.

[145]WR Regulations reg 8.5(5).

[146]Stewart, above n10 at 8.

[147]Both regimes were extreme. Work Choices was only passed after the Howard government secured an almost unprecedented majority in both houses of Parliament. The Colonial Office rejected a number of Master and Servant laws because of their wide ranging, oppressive and arbitrary nature. See Quinlan, above n72.

[148]Maternity Leave Case (1979) 218 CAR 120; Re Working Hours Case (2002) 114 IR 390; Termination, Change and Redundancy Case [1984] CthArbRp 284; (1984) 8 IR 34.

[149]See Murray, above n141 at 340–3 for discussion on how the test case functions as a dynamic regulatory system.

[150]Work Choices Act Part 7 Div 4 ss 227–238; Part 7 Div 5 ss 239–261; Part 7 Div 6 ss 262–316 and Part 7 Div 3 ss 223–226 respectively.

[151]Work Choices Act Part 7 Div 2 ss 176–222.

[152]Work Choices Act Part 7 Div 1 ss 172–175.

[153]Owens and Riley, above n19 at 276–7.

[154]Murray, above n141.

[155]For example, the freezing of the Federal minimum wage in the US in the 1980s and 1990s.

[156]Cooney, above n121.

[157]Hay and Craven, above n24 at 14.

[158]See above n36.