92 SITUATING HUMAN RESOURCE MANAGEMENT
of the rhetoric of some of the advocates of labour market deregulation in
our own time (HR Nicholls Society 1986), and with the notions of individ-
ual autonomy espoused by many of the exponents of ‘postmodernist’ HRM
(Bauman 1993 and Cummings 2000, cited by Legge in her contribution to
this book). As will appear presently, this rhetoric also finds expression in
the radical changes to Australia’s system of workplace regulation which were
introduced by the Howard government in late 2005.
The disputes of the 1890s were protracted and bitter. In many instances
they involved violence and destruction of property. They had a profound
effect on liberal opinion in the Australian colonies, and led a number of the
leading advocates of federation to promote the inclusion in the Constitution
of the nascent Commonwealth a power (section 51 (xxxv)) to make laws for
the prevention and settlement by conciliation and arbitration of industrial
disputes extending beyond the limits of more than one State (Macintyre 1989;
Macintyre and Mitchell 1989; Markey 1989).
Many of the founding fathers considered that the conciliation and arbi-
tration power might never be used, or be used only sparingly in order to
prevent a recurrence of the events of the early 1890s. This was based on the
premise that following the establishment of a form of compulsory conciliation
and arbitration, employers would no longer have any incentive to refuse to
negotiate with trade unions because if they refused to do so the unions could
refer the matter to an impartial tribunal which could impose an arbitrated
settlement upon parties who were unwilling or unable to reach a negotiated
outcome for themselves.
The reality proved to be rather different. At an early stage in the history of
federation, section 51(xxxv) was used as the basis for the enactment of the
Conciliation and Arbitration Act 1904 (Cth). This was intended to usher in
what one of its proponents (Higgins 1915) termed a ‘new province for law
and order’, and in due course formed the basis for the system of industrial
regulation which was such an important feature of the Australian polity for
most of the twentieth century (Creighton 2000; Kirby and Creighton 2004).
The processes established under the 1904 Act, and its State counterparts
(Creighton and Stewart 2005: 138–45, 188–90, 197–203), accorded a major
role to trade unions, and provided the basis for a significant degree of exter-
nal regulation of the terms and conditions of employment of the greater
part of the Australian workforce. It did this through an elaborate system
of industrial awards which were made by the tribunal in settlement of an
interstate industrial dispute between one or more unions on one side and
one or more employers and/or employer organizations on the other. Often,
the ‘dispute’ which gave rise to the making of these awards existed only on
paper, and was created for the principal purpose of investing the tribunal with
jurisdiction (Creighton and Stewart 2005: ch. 6; Pittard and Naughton 2003:
ch. 11).