Should Governments Mandate Workplace Fairness?

I delivered the following speech on Workplace Fairness at a public lecture series for La Trobe University at Melbourne Australia on April 19, 2007.....

I would like to take this opportunity to thank Tim, Tania, Sandra, La Trobe University and Magwicks for inviting me to speak at this public lecture. I am honored to address you with a subject that I am very passionate about - the topic of workplace fairness. I have spent a great deal of my professional life thinking about this ideal and have concluded that workplace fairness is indeed possible. It is my great fortune to share these thoughts with you this evening.


INTRODUCTION
So let’s talk about workplace fairness:
• What is workplace fairness?
• Is there a right to workplace fairness?
• Are there competing rights?
• How have governments sought to protect workplace fairness?
• What role does unionization play in workplace fairness and what role ought it to play?
• How successful have we been in protecting and promoting workplace fairness?
• How could we be more successful?

WHAT IS FAIRNESS?
Workplace fairness builds upon the liberal democratic notion that all individuals deserve equality of concern and respect regardless of their position in life. The great liberal democratic legal theorist, Ronald Dworkin put it best when he said that:

fairness rests on the assumption of a natural right of all men and women to equality of concern and respect, a right they possess not by virtue of birth or characteristic or merit or excellence but simply as human beings with the capacity to make plans and give justice

WORKPLACE FAIRNESS AND THE GOLDEN RULE
This notion of equality of concern and respect takes us to the fundamental precepts upon which we have based our societies especially in the Western world. If workplace fairness is built on the foundation of Equality of Concern and Respect, then just as surely Equality of Concern and Respect is based upon the foundation of the Golden Rule – Treat others as you want to be treated.

THE GOLDEN RULE
Anticipating that some may argue that this proves only Christian workplaces need to be fair, I have provided you with positive proof that The Golden Rule reaches into almost every religion imaginable and thus most societies should ascribe to the “natural foundation of workplace fairness.”

And even in the case of Christian concepts of justice, I put it to you that the idea of workplace fairness reaches back way before the Golden Rule was first enunciated.

I am speaking of course of the times of Moses and the great Exodus from Egypt. During that time a group of workers approached Moses – who clearly had an in with the boss. See Moses was Manager of Compliance in the workplace. But this group of workers complained about how unfair the workplace was. The Boss was one of these management rights traditionalists to be sure. It was “thou shalt” this and “thou shalt not that”, there was hardly any room for creativity in the workplace.

And to top it off, there was a large union organizing drive started because of perceived unfairness in the workplace. The “International Federation of Golden Calf Worshippers” had sent a couple of very persuasive organizers to rile up the staff. The line up to sign union cards with “Golden Calf”. was getting longer and longer. See “Golden Calf” was a smart union. They claimed they could get all kinds of fringe benefits out of the employer. In fact they promised a retirement plan that was second to none: eternity in a very warm tropical environment just for signing up.

So, Moses, being a strong advocate for workplace fairness, and also fearing what would happen if the workers became members of Golden Calf, gave the boss a call and asked for an audience. Of course, this being a traditional employer, the Boss had no intention of meeting Moses personally. Instead The Boss sent the Manager of Human Resources to negotiate with Moses. Bush was his name…. Burning Bush. I guess the Bush family has been medaling in the Middle East for a long time.

Well for 3 days and 3 nights Moses and Burning Bush had it out. For the first day there was lots of fist pounding on the table, saber rattling, teeth gnashing and cigar smoking. On the second day, the discussion became much more interest-based as Moses explained that Golden Calf had sent its own representative to the workplace, and she was attracting much more attention than the Boss. So they finally concluded the deal on the second day – but in typical fashion Moses was left with writing the deal up – which is no small chore when all he had was stone tablets and a chisel – this was back before the Vista upgrade.

But then finally, Moses returned to his workplace with agreement in hand. He addressed the throng of workers and gave them their first taste of workplace fairness.

He said

“Well, I’ve got some good news and some bad news.”

“The good news is I got the Boss down to 10”

“The bad news is adultery is still on the list.”

THREE STAGES OF RIGHTS DISCOURSE
Alright so now that we have discussed the 4000 years of workplace fairness, let’s fast forward to modern days. Another way to approach our primary question is to ask whether there is a right to workplace fairness.

In order to answer that question let us consider the nature of rights for a moment. According to some theorists there have been three stages of rights discourse in the last three centuries.

The first stage was concerned primarily with the right of individuals to be free from state control and coercion. These are commonly referred to as Civil Rights. Such rights would include privacy, freedom of speech, freedom of contract, etc. This form of rights discourse was dominant during the rise of liberal democracies across the Western world in the 18th and 19th Centuries.

The second stage of rights focused upon the right of individuals to participate in the administration of the state through voting and the ability to run for office. This became the dominant form of rights discourse for men in the 19th Century and for women in the first half of the 20th Century.

And the third stage of rights discourse is more a creature of the 20th and 21st centuries. This form of rights discourse is called “social rights” and involves the right to protection of the state from private interests. The most significant example of this is human rights which entreat states to protect individuals from harassment and discrimination on the basis of certain prohibited grounds.

IS THERE A RIGHT TO WORKPLACE FAIRNESS?
So is there a right to workplace fairness?

If there is such a right it would be a social right – it would be the right to state protection from private interests. It would be a right akin to other human rights. It would require a recognition of the disadvantage of employees in the workplace setting that needs to be ameliorated by state involvement. It would have to be based upon the assumption that employers exert control over employees similar to the control that states exert over their citizens.

So where is the proof that such a right exists?

INTERNATIONAL CONVENTIONS
To answer this question we must look to the international community and our collective views on work and the rights associated with it. These views have been endorsed by member countries of the International Labour Organization (ILO).

Declaration of Philadelphia (1944)
We begin with the Declaration of Philadelphia (1944) which established three fundamental principles of relevance to a right to workplace fairness

1. Labour is not a commodity
2. Freedom of expression and association are essential to sustained progress
3. All human beings have the right to pursue their material and spiritual development in conditions of freedom, dignity, economic security and equal opportunity

To this can be added the International Covenant on Economic, Social and Cultural Rights, (1976), which endorses some of the fundamental principles of equality of concern and respect upon which workplace fairness is based. For example:

Article 6 – establishes the inalienable right of citizens to work
Article 7 – establishes the right of everyone to enjoyment of just and favourable conditions of work
Article 8 – establishes the right to form and join a trade union for the purposes of achieving the rights under articles 6 and 7

ILO DECLARATION ON FUNDAMENTAL PRINCIPLES AND RIGHTS AT WORK (1998)
One might ask, why do we care about International Conventions anyway? They have no true force in domestic law and thus are not an articulation of any particular Society’s principles. This view is countered by the ILO Declaration on Fundamental Principles and Rights at Work (1998), which states that

• All states who are members of the ILO, have endorsed Declaration of Philadelphia
• All Members, even if they have not ratified the Conventions, have an obligation to respect, to promote and to realize, the following fundamental rights
• (a) freedom of association and the effective recognition of the right to collective bargaining;
• (b) the elimination of all forms of forced or compulsory labour;
• (c) the effective abolition of child labour; and
• (d) the elimination of discrimination in respect of employment and occupation.

SIGNIFICANCE OF INTERNATIONAL COVENANTS
So what is the significance of all this? How does a state commitment to the principles espoused in the above International Covenants translate into a Social Right to Workplace Fairness?

First, let us confirm that Australia, Canada and hundreds of other countries are member organizations of ILO. This means that there is a relative international consensus at least on the principles set out in the Declaration of Philadelphia.

The Declaration of Philadelphia supports the social right to workplace fairness as follows:

“labour is not a commodity” rejects the alienation of a person’s labour from a person’s life. This supports the concept that an individual has a right to be treated as a citizen even when that person enters the workplace. That there is nothing about entering the employment relationship that would denigrate from the person’s right to equality of concern and respect.

Likewise “freedom of expression” rejects the view that an employee loses fundamental rights of citizenship by stepping into the workplace.

Finally the right to “freedom” and “dignity” are akin to fairness – they connote equality of concern and respect.

Taken together, these pronouncements support the concept that there is a social right to workplace fairness. And since member states of the ILO recognize in essence the international right to workplace fairness, it would be disingenuous for such states to refuse to recognize this social right in their own jurisdictions.

Therefore, there is a Social Right to the State Protection of Workplace Fairness

But wait a minute! What about the other “right” in play that has its fundamental basis in all capitalist societies…

COMPETING RIGHTS – THE OTHER GOLDEN RULE
The Other Golden Rule – Those with the Gold Make the Rules. This is the key ingredient to the Right to Freedom of Contract.

AUTOCRACY OF WORK
Surely, some would argue, there is a time honored tradition in support of Freedom of Contract as the primary mode of work relations. In fact the entire work relationship was at one time dominated by the right to freedom of contract. Under this theory the Parties are free to enter into or leave any contract any time they want. – the Parties are free to negotiate the terms of their contract and of course whatever isn’t expressly negotiated or implied by the courts falls to residual management rights – another time honored tradition that goes back to the old master-servant relationship.

THREE STAGES OF RIGHTS
The civil right to freedom of contract, some would argue, is far more important (or at least as important) as this so-called social right to workplace fairness. After all, civil rights are enshrined in constitutions. And the state has no business interfering in the affairs of two competent parties.


WHAT OF ENSURING FREEDOM OF CONTRACT?
As stated by Richard Epstein “In Defense of Contract at Will”

“Freedom of Contract is an aspect of individual liberty, every bit as much as freedom of speech, or freedom in the selection of marriage partners or in the adoption of religious beliefs or affiliations. If government regulation is inappropriate for personal, religious, or political activities, then what makes it intrinsically desirable for employment relations?”

After all, as Epstein continues:

“With employment contracts we are not dealing with the widow who has sold her inheritance for a song to a man with a thin moustache. Instead we are dealing with the routine stuff of ordinary life. People who are competent enough to marry, vote, and pray are not unable to protect themselves in their day-to-day business transactions”

FREEDOM OF CONTRACT VS. FREEDOM OF LIBERTY
In answer to the Freedom of Contract argument, some have replied that there is another civil right at play for employees – Freedom of Liberty.

Many have argued that since the latter part of the 20th century corporations have replaced the government as the primary institution for restricting the freedom of our citizens.

As Lawrence Blades puts it:
It is a widely accepted proposition that large corporations now pose a threat to individual freedom comparable to that which would be posed if governmental power were unchecked.

In the workplace environment every aspect of an employee’s life may be regulated by the employer – including when and where an employee eats, drinks, sits down or converses with her fellow employees. An employee can be required, within certain limits, to put up with an abusive supervisor, and to not retaliate when her self-esteem has been tarnished.

An employee can be subjected to discipline as severe, in some cases, as many of the forms of ‘discipline’ that a state can inflict upon a citizen. As one author put it, dismissal is the “organizational equivalent of capital punishment.”

And most employees simply do not have the power to alter the at-will arrangement at common law – which leaves them only with reasonable notice upon termination of employment.

Paul Weiler, a prominent labour theorist, states that:

A freely negotiated agreement between an individual employee and his employer is not an effective means for establishing the employee's entitlement to his job and protecting both workers and the community from management's abusing its power of dismissal. This conclusion flows from the fact that holding a job with the employer is typically much more important to the employee than retaining any individual worker is to the employer.

But this is only part of the reason why we should care about workplace fairness. Underlying all this is really a philosophy about how we choose to live our lives. As human beings most of us spend nearly half of our waking adult lives in the workplace. Our work defines us to a great extent.

We are social beings that are partly the product of our own socialization. Workplace structures that are essentially unfair lead to a general sense of unfairness in the workplace. By accepting unfairness in the workplace we condition ourselves and our society to accept unfairness in other aspects of our lives and the lives of others on the planet we share. This may account in some part for our acceptance of unfairness in the world around us.

Therefore, there is a greater need to seek fairness in every aspect of our lives.

It is for this reason that I believe we must care about workplace fairness.

BALANCE OF COMPETING RIGHTS
Consistently governments have accepted the existence of both the social right to workplace fairness and the civil right to freedom of contract. In recognizing these rights they have sought to strike a balance. And while there are variances in how the balance was struck, there is a common view of the limits of workplace fairness.

THE LIMITS OF THE RIGHT TO WORKPLACE FAIRNESS
In liberal democratic societies governments have struck a balance between fairness and freedom of contract by settling for basic protections for workers entitlements, and access to a process whereby workers can protect their own right to fairness. Governments have not seen the redistribution of economic wealth as a part of the right to workplace fairness.

ELEMENTS OF A FAIR WORKPLACE CONFLICT MANAGEMENT SYSTEM
Let me take this opportunity to introduce a theory about what is required to make fairness a reality in the workplace. In analyzing what is required to make a workplace conflict management system successful, I have created a number of criteria which I have placed into four categories: Justice, Efficiency, Engagement and Resource Sufficiency. I will speak more of these criteria throughout the lecture.



EXISTING STATE REGULATION STRATEGIES TO ENSURE WORKPLACE FAIRNESS
Most states have sought to protect workplace fairness through the legislation of minimum standards and through allowing employees access to collective bargaining. Governments have created a floor of essential entitlements and have counted on collective bargaining to fill the gaps.

The following quote by the Saskatchewan Minister of Labour in 1944 provides evidence of the great hope that liberal democratic legislators had in the process of collective bargaining as a guarantor of workplace fairness:

No Labour legislation, (he stated), can be regarded as truly fair unless we have first of all clearly established the fundamental democratic rights of employees to organize and bargain collectively. Once these rights are clearly established, workers will be in a position to protect themselves. And the protection which they can give themselves, in a democratic country, is of infinitely greater value than any protection, which the government can give them

This theme was echoed many years later by David Beatty, a prominent Canadian workplace jurist. He writes:

Collective bargaining is intended to be a legal process which governs the interaction of individuals in the workplace in a way which will 'enhance the free development of the human personality'.... and provide a social structure within which the liberal ideal of self-definition and self-government can more closely be approximated in our working lives.


ESSENTIAL DIFFERENCE NON-UNION VS. UNION
In essence governments have introduced collective bargaining as a way of reducing the arbitrary use of residual management rights. As Professor Beatty has put it, collective bargaining is the liberal democratic response to the need to institute “rule of law” in the workplace.

In most states this is achieved through collective bargaining for a number of reasons:

First, along with collective bargaining comes the unfair dismissal provision and the reinstatement remedy in most states. It is very difficult to have a truly fair workplace without an enforceable unfair dismissal standard and without access to the reinstatement remedy. Without those protections all other fairness measures can be easily undermined by the threat of termination of employment.

(I note here that Australia seems to be an exception to this internationally accepted principle. From what I can tell, employees and unions are actually fined for negotiating an unfair dismissal provision in their collective agreement. Under WorkChoices individuals can be fined $6000 and unions $33,000 for negotiating an unfair dismissal provision into an agreement even if the employer agrees. Apparently Mr. Howard was very excited about the title of this lecture (Should Governments Mandate Workplace Fairness) and thought that he would change a number of laws in honor of this momentous occasion. Except he must have read the title of the lecture wrong – what he must have read was “Should Governments Dismantle Workplace Fairness?”

A second advantage of collective bargaining is that employees would have more than just formal access to standards and remedies. Unlike in the common law system where employees had to pay for expensive law suits to enforce their rights, unionized employees would have a union representative to guide them through the process, and would have union-paid litigation to back them up. When looking at the Justice criteria above, this would have a strong impact upon the Protection, Support and Procedural Fairness criteria.

A third attraction of collective bargaining was that it introduced an entity into the workplace that could act as a counter-measure to the extreme imbalance in power relationships. Unions, with their dues, were meant to grow into powerful entities that could have an impact on the setting of government policy – just like employers could.

And finally, the collective agreement grievance procedure was intended to be more efficient than common law courts at settling disputes in the workplace. This is why there were numerous internal steps proposed for a grievance procedure that are not available in the common law litigation system.

In total, governments thought they were making provision for a fair balance in the power relationships in the workplace that would have the result of ensuring workplace fairness.

HOW WELL HAVE PRESENT STRATEGIES WORKED?
So how well has this strategy worked in the Western world? If collective bargaining was seen as the panacea to a world of unfair workplaces, then it must be concluded that state strategies have met with only limited success in most countries. And the primary reason for this is the marked decline in unionized workplaces as demonstrated in the following slides.

UNION DENSITY RATES AND COVERAGE
In general, the density rate of unionized employees in non-European countries is low enough to cause one to question the effectiveness of government strategies to regulate workplace fairness through collective bargaining. A strategy that covers only a minority of employees is hardly an effective one.



RATE OF DECLINE 1970 - 2003
And while the present union density rate is a serious cause for concern, the alarming rate of decline in union density is further proof of the failure of this strategy. The rate of decline in Australia should be especially noted as problematic for the workplace fairness strategy.





PRIVATE VS. PUBLIC
And finally, the character of union density should raise even more alarm bells. There is a consistent pattern of decline in private sector unionism even to the point that in countries like the United States, it is almost non-existent. And with constant rates of privatization in the Western world, this augers poorly for the total rate of unionization.



WHY HAS THIS STRATEGY NOT WORKED?
If the decline of unionization is proof positive that the government strategies in the Western world have not worked, this leaves us with the question why?

1. Maybe it has worked
Well some have argued the contrary: that in fact the strategy has worked. Let’s face it; workplaces are generally fairer than they were 70 years ago when labour legislation proliferated throughout the Western world. Human rights and privacy legislation has been refined, and some would argue that the exercise of residual management rights is more cautious than it used to be – partly because the ability to attract and retain staff (at least in the more skilled sectors of the economy) is influenced by the fairness of the workplace – but also partly because employers fear unionization and will construct fairness measures as an antidote to unionism.

If this is the case, however, the state of fairness must be seen as illusory and entirely contingent upon economic conditions. Many fear that with the decline of unionism, the incentive for employers to have fairer workplaces will also diminish. And in the final analysis there is nothing preventing an employer from firing an employee without cause (especially an Australian employer with 100 employees or less) and ultimately very little preventing an employer from exercising residual management rights in an unfair way outside of the statutory minimum requirements.

2. Internationalization of capital and movement to third world countries
So let’s consider the reason touted by the press for the apparent abandonment of the strategy to unionize: internationalization of capital. Many argue that there really is no choice left – that if a country wants to compete for the free flowing international capital, it must make it more enticing for investors to invest in the country. And the more regulation and unionization there is, the less likely that investors will want to invest.

This, in fact, has been claimed as one of the big successes of the Howard government’s changes. In a recent article in the Australian it was asseted that a year after the WorkChoices Act was introduced, unemployment fell, earnings rose (albeit no more than inflation grew) and most importantly, hours lost due to industrial strikes fell sharply. All this looks good for business. And of course all of this has been done in the name of competition. Such success has been bought at the mere expense of reducing statutory minimum requirements, weakening of unions, and exempting companies with 100 employees or less from unfair dismissal laws.

To put it another way, The Australian government has sold off workplace fairness for increased employment. Ironically this is the government that is supposed to espouse the liberal democratic compromise. And instead it is forsaking liberal democratic principles in the name of competition.

But the reality of all this is that internationalization of capital is not the primary reason for the decline of unionism. This decline began before the internationalization of capital and some would argue was the necessary precursor to relaxing of national laws to allow unrestricted free trade.

3. Attitudes toward unionism
Perhaps the most fundamental reason for the failure of the government strategy of achieving fairness through unionization has been the public attitude toward unionism: that unions are a necessary evil.

A prominent North American academic, Roy Adams of McMaster University, has summarized the attitude of employers toward unions. He writes:

1. Unions are seen as "outside organizations," individual employment relations are the natural norm, and unionization is the outcome of a failed attempt by management to create social harmony in the workplace.
2. The proper role of government is to act as a neutral referee in the contest between unions and unorganized employers for the loyalty and support of the employees.


This construct informs public thinking about unions. But this is not entirely the fault (or shall we say success) of employers. The attitude of union as adversary, as trouble-maker, as the power-based, self-interested, politically radical, bullies in the workplace is partly also due to the actions of unions themselves. It is fair to say that in the past some unions have used excessive force to wring concessions out of employers.

The history of the union movement in North America and in Australia is one of constant struggle between employers and unions. The power based model of strike lockout to resolve disputes has exacerbated this struggle. It naturally led in the earlier years of unionization to the prominence of international socialists and communists within the movement. The great liberal democratic ideal for unionization as a measure to secure workplace fairness was sacrificed to the acceptance by both employers and unions of “class struggle” as the predominant model of unionism.

It is not surprising under these circumstances for employers, some employees and the general public to see unionization in the way it has been described by Professor Adams above – as nothing better than a poison pill for bad management practices.

And this outcome really represents a failure of the liberal democratic ideal of unionism as the free expression of democratic interests in the workplace aimed at securing workplace fairness.

WHAT NEW STRATEGIES SHOULD BE TRIED?
Well now that we have established the limited success in present strategies in ensuring workplace fairness, where do we go from here?

1. Let free market decide
Well perhaps the likes of Epstein (and who knows maybe even John Howard) might say, “See I told you so. Don’t mess with capitalism and it will take care of itself. It is completely self-correcting as long as you just leave well enough alone.”

So why don’t we then just eliminate all statutory minimum requirements? Why don’t we allow employers to live by the conditions of the market? If the market will supply workers who will work for 30 cents a day, then why not allow that to happen. They do this of their own free will. No one is making them work there. Right? And while we are at it, why not also eliminate all environmental legislation so that we can directly compete with some third world country? On the logic of free market, there should be no unemployment at all as long as people are willing to work for free.

The fact of the matter is that investors buy into to markets like Australia and Canada because the workforce is stable, it is highly educated, efficient and motivated. To the extent that there is a relationship between a social safety net and the stability of a national workforce, the reduction of such standards are likely to cause disruptions and instability. A primary example of this is in the apparent public reaction to the Work Choices legislation here in Australia. Now it is not for me to judge, but from what I see in the papers, this legislation has sent a chill throughout the country – a chill that will eventually have an economic impact.

2. Bolstering unionism
So what about going the other way? What about making unionization mandatory and requiring all employees to be a part of a union or to be covered by a union?

This is fraught with as much peril as the first suggestion. Mandating membership in a union is a violation of the right of individuals to freedom of association. It is an unreasonable infringement upon the freedom of association to require a clear majority of employees to join an organization that they do not wish to join.

3. Increasing regulation outside unionism
So what about dismissing trade unionism altogether and instead concentrating upon mandatory legislation to ensure workplace fairness? To some extent this is beginning to happen in jurisdictions with declining union density rates. For example the Canadian national jurisdiction and the Provincial jurisdiction of Quebec have both mandated a reinstatement remedy and a just cause standard for dismissal that all employers are subject to (regardless of whether or not there is a union). This appears to be going in the exact opposite direction of the Australian government with WorkChoices.

On the surface, this idea of directly mandated workplace fairness has its attractions. There would be no concern about union density, no requirement for mandatory unionization, and still it might be possible to achieve workplace fairness (on paper at least.)

On this slide, I have represented what these governments have done on the spectrum of workplace fairness regulation as “Reinstatement/Just Cause” legislation. There is a reason, however, why I have put this lower on the spectrum than unionization.



The existence of reinstatement and just cause is much more effective in a unionized work environment than in a non-union work environment. The reason for this is practical – in a non-union workplace the employee in virtually unprotected from acts of reprisal by employers who are grudgingly forced to take an employee back. The employer can always find some excuse to fire the employee – through restructuring, downsizing, etc. It is not so simple in a unionized work environment where the employee has the full support of the union behind her.

This is not to say that such legislation is meaningless, or unadvisable. But at the end of the day, by providing no further support for a returning employee, this does not amount to effective protection of workplace fairness.

4. Changing the nature of unionism
So what is the solution then? In my view there are two prominent measures that must be put in place to promote effective workplace fairness:

Promoting liberal democratic view of unions
The first such measure will require the cooperation of governments, employers, unions and the public. And this comes from revisiting the original purpose of unionization in liberal democratic societies. We must promote and enhance a liberal democratic view of unionism.

Professor Roy Adams clearly articulates this view as follows:

Collective bargaining is an inherently good thing and the preferred process for making democracy effective in the economic sphere of society. Thus, it should be freely accepted as the norm by employees, employers, and society as a whole. Thus the proper role of government is encouragement of collective bargaining, not neutrality.

The liberal democratic view of unionism is not one of class struggle, but simply the free expression of the desire among employees to band together to negotiate just and favorable conditions of work. It is the vehicle for instituting the rule of law in the workplace.

In order to achieve this liberal democratic view and defeat the de facto (“us versus them”, class struggle analysis) a number of attitudes must change:

1. Unions must be seen, and must see themselves as partners in the management of conflict in the workplace
2. Unions and employers must cease to see themselves as enemies, but rather as cooperative partners in the success of the business. This may mean letting go of numerous tired assumptions about seniority preference and other ideas standing in the way of effective decision-making.
3. Unions must abandon the class struggle analysis in favor of a view of unionism as the democratic expression of their right to workplace fairness. While they have a role to play in informing public opinion, they should be promoting the liberal democratic face of unionism in doing so.
4. Governments, as noted above, must cease to act as so-called neutral third parties and should actively promote the liberal democratic version of unionism as the most effective means of achieving workplace fairness. Governments must move beyond the bear enactment of collective bargaining legislation, to the effective enforcement of it, and most importantly the active public support of such legislation and of unionism in general.

Substituting Mediation - Arbitration for strike lockout as a remedy
The second measure involves the dispute resolution mechanism. The liberal democratic version of unionism will never come to dominance unless the essential dispute resolution mechanism is changed from the power-based strike-lock/out to the interest and rights based mediation-arbitration as a remedy.

Now Tim informs me that in Australia the government has gone in completely the wrong direction on this issue. They have moved from mandatory conciliation and arbitration to the strike lock-out paradigm in 1996. It is no small wonder why the liberal democratic vision of workplace fairness is in such disarray in this country.

At present, most of what is perceived negatively regarding unionization relates to the use of strike lockout as a dispute resolution mechanism. Work stoppages, people disrupting others’ lives, strike line violence associated with scabbing, and the process of gearing up for a labour relations war, all have a negative impact upon the liberal democratic view of unionization.

If the purpose of unionization is to ensure workplace harmony, then this can be accomplished through consensual mediation-arbitration as a remedy to contract disputes. In mediation-arbitration both parties must convince a neutral third party of their need for change or their need for stability. Reference is made to fair and reasonable external standards. And if the third party cannot help the parties reach agreement on their own, then the third party makes a decision and the matter is closed. No strikes, no lockouts, no disruptions, no negative press campaigns, no labour relations war – simply a just and reasonable resolution of disagreements between partners in the management of workplace conflict.

The quicker we get away from the Golden Calf concept of unionism and start seeing it as the clearest articulation of the Golden Rule (the original golden rule that is), then the quicker we will achieve true workplace fairness.

THANK YOU - Thank you for allowing me to speak with you today.