A Tale of Two Labor Laws

A Tale of Two Labor Laws

Come to Perth next year and give us a keynote address. That was the gist of an e-mail I got one July day in 2008 from the Australian Society for the Study of Labor History. At the time, both the United States and Australia were grappling with labor law reform. In America, it was the Employee Free Choice Act (EFCA) put forth by the AFL-CIO and endorsed by the Democrats. Come November, they would almost certainly be in charge—White House, both Houses of Congress, the whole works. In Australia, after a decade in the minority, the Labor Party under the leadership of Kevin Rudd was back in power and bent on dismantling the anti-union program of its neoliberal predecessor. Labor’s alternative was still a work in progress, but it already had a name, Fair Work Australia.

My thought was this: if I followed events in both counties to their conclusion, I might have a tale to tell about two labor regimes—instant comparative history, so to speak. So I accepted the invitation. At Perth I gave the Australian version, and here, in a more narrative form, the American version.

The two countries, as products of Anglo-Saxon colonization, are cousins, and if one looks only at America’s trans-Mississippi West, more like mirror images, with parallel histories of frontiers, of indigenous peoples decimated, of gold rushes, distance from the core, hyper-urbanization. Even so, it is not commonalities, but differences I want to explore. And, in truth, it would be hard to find two countries so similar yet different in their approaches to industrial justice.

For Australia, the starting point is 1901, when the six colonies federated into the Commonwealth. Intertwined with this historic event was the decision to hammer out a national labor policy. What better time to settle the endemic class strife that had afflicted colonial Australia? The country could afford to be generous, with one of the highest per capita incomes in the world. There was an emergent Labor Party to be placated, and, for its foes, a significant quid pro quo: protection of Australia’s budding industries. It seemed natural, with considerable precedent already in place, for Australians long accustomed by colonial rule to an interventionist state to embrace the Conciliation and Arbitration Act of 1904.

Strikes would not be tolerated. Instead, labor disputes would be settled by a Court of Conciliation and Arbitration (hereafter, the Arbitration Court) empowered to hand down compulsory awards. Trade union representation was built into the system, so that the quest for union “recognition” that so bedeviled American unions was simply off the table. Unions applied to the Court, and once “registered,” represented the workers who, in the Court’s judgment, fell within their jurisdictions. In 1907, in the landmark Harvester decision, the Court laid down the principle that awards should assure workers a standard of living reasonable for “a human being in a civilized ...