The institutions of industrial relations have proved to be more malleable than I expected in the mid-eighties, and the ‘system’ has, for better or for worse, been transformed.

Underlying forces conducive to change have been the economy’s exposure to external competition, related changes in the structure of industry and employment, the pervasive free market ideology and a sustained decline in union density. More fortuitous factors, such as the antipathy of an ACTU Secretary to members of the Australian Industrial Relations Commission, a Prime Minister’s entrenched hostility to the ‘system’, the Coalition’s unexpected capture of a Senate majority in 2004 and the High Court’s validation of WorkChoices, have also contributed to the present state of play.

The 1989 Green Paper Transforming Industrial Relations in New South Wales, advanced 99 recommendations across a range of concerns. Some were quite prosaic, such as the scope for legal representation in tribunal proceedings and redrafting the regulations to the enabling legislation. Other measures, such as those to do with union amalgamations, OH&S in small business, and pay equity addressed problems specific to a system that was, at that time, the least reviewed in Australia. A third group of recommendations, which are more interesting in the current Australian policy climate, addressed the key design features of how an industrial relations system could be best made fit for purpose in a competitive world.

Most of the proposed changes were implemented, either through ministerial actions or through two pieces of legislation: the Industrial Arbitration (Enterprise Agreements) Act 1990 and the Industrial Relations Act 1991. By applying a green paper process, these changes followed periods of submission taking and considerable consultation, with extensive debate.

In this brief paper, I offer some observations on what I shall call the ‘Rudd Vision of Australian Labour Law’. Before doing so, however, it is appropriate to explain how the WorkChoices laws sought to extinguish the purpose and rationale of labour law.

Australian industrial relations was a curious beast for much of the twentieth century. For many it was the institutional equivalent of a marsupial — native to the Australian environment. It developed in the economic and social circumstances of the nineteenth century. Indeed the development and elaboration of the arbitral model of Australian industrial relations was one of the major social experiments of a vibrant, young and successful Australia.

The plenary papers provide rich reflections on Australian industrial relations. Drawing on a wealth of experience, Gardner, Hancock, McCallum and Niland comprehensively cover the field of traditional industrial relations by examining those aspects that have engaged considerable scholarly attention since the 1950s: labour law; Commonwealth-State jurisdictions; wage policy; the role of tribunals; unions and industrial action. In so doing, the plenary authors recognise that industrial relations regimes generally aim to balance employeremployee power, provide conditions that enable workers to support themselves and their families, and set a reasonable safety net to protect the weakest.

Globalisation presents major challenges for governments, and some are now looking to the United Kingdom as an example of how to create global competitiveness, economic efficiency and labour market flexibility in a way that also responds to demands for fairness at work. But what the British approach conceals behind its alluring synthesis of regulation and deregulation is the changing nature of labour law, which is now principally a tool of economic policy, and as such less concerned with its historic mission of promoting social justice. Labour law is thus increasingly concerned principally with the re-commodification of labour, rather than the protection of workers; with promoting the flexibility of labour, rather than the security of citizens; and with controlling rather than encouraging labour organisation as an instrument of industrial democracy (a term about which little is now heard).