Former Justice and Presidential Member of the AIRC, the Hon Paul Munro, delivered his address, Recent Changes to Industrial Relations Law – The Benefits of Experience, at the recent Law Institute Victoria’s Workplace Relations Conference in Melbourne.
The Law Institute’s decision to give me the honour of delivering the keynote address to this conference may have been inspired by hope. My reputation as an agitator perhaps generated expectations that I might use whatever experience I derived from my longevity as a Presidential Member of the AIRC to ignite discussion of industrial relations law. What I have to say will not inflame the passions of this respectable audience; but perhaps some of you may extract enough from my observations to fuel an expectation that a new labyrinth for law and order is now being shuffled toward Canberra to be born; promising litigational excitement and prosperity for this generation of industrial lawyers.
Oliver Wendell Holmes probably had in mind a different kind of experience from mine when he wrote “that the life of the law has not been logic; it has been experience“. He was referring not to subjective empiricism but rather to the judicial process. Hammond paraphrased it as an ‘intuitive cognition’ around experience. Holmes identified the relevant “experience” with “the felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow men”… Justice Cardozo put his own gloss on the experience that underlies judicial lawmaking by associating it with “situations in the life of a group, the community of which we are part, forms of conduct that help to stabilise our judgement and make it certain and objective”.
Holmes’ maxim was directed to the evolution of the common law. A similar concept of the experience subject to cognitive intuition in judicial rule-making should properly be given work to do in evaluating other forms of rule-making whether by the executive or the legislatures. The formulative process for rule-making of that kind need not be constricted by either logic or experience. The availability of legislative power alone is often seen as reason enough to exercise it. Lack of logic or an abandonment of patterns of regulatory practice may be a vice but it does not invalidate an expression of legislative will founded upon it. Only if an opportunity arises to bring about another exercise of legislative power can a flaw of that kind be exploited as a persuasive device for correction of it.
Statesmanship is attributed to those who display mastery in steering the vessel of state through arduous passages. Edmund Burke’s widely quoted definition of it is presumed to have been refined from a kind of experience closely attuned to survival in legislative or executive office. The essence of the Burkean tradition was summarised in a recent piece by David Marquand. It demands a combination of a “disposition to preserve” with an “ability to improve” plus a balance between them. The demand for statesmanlike qualities in finding a balance is well exposed by the contemporary challenges:
“Headlong change, based on a priori theorising, could lead to disaster, but so could rigid adherence to the legacy of the past…
One of the great questions of the age is how to protect the precious filaments of civil society from the pressures of resurgent capitalism, hyper-individualism, resentful populism, family breakdown and state encroachment… The feverish social engineering beloved of old Thatcherite and New Labour policy wonks is part of the problem… lasting social and cultural changes have to grow from the bottom instead of being imposed from the top.'” David Marquand, ‘Cameron is no secret Thatcherite’, Guardian Weekly.
No evaluative measure of the quality of Australia’s industrial governance could be free from contention. Undaunted, I suggest that an appropriate balance between a disposition to preserve and an ability to improve would have wide acceptance as a fair measure. The parameters for balancing a disposition to preserve and an ability to improve leave ample room for the felt necessities of the time and other aspects of experience to be weighed in the evolution of any regulatory regime.
I have applied over some time a broad measure of that kind generally to both the WorkChoices and Forward with Fairness (FwF) models of industrial governance and social engineering. In this paper, I will contrast the WorkChoices model and the effects of it, with the not yet fully emerged details of the FwF regime, and what I consider to be some remediable deficiencies of it, or of the Fair Work Bill 2008 (the Substantive Bill), which was tabled only three days prior to delivery of this paper. I will conclude with an outline of a quality assurance, risk management process now being developed by the Australian Institute of Employment Rights to ensure that participating workplaces are being conducted in conformity with a reasonable balance between employment rights and operational efficiency.