ETHICAL EMPLOYMENT PRACTICES AND THE LAW 93In practice, by the 1980s, the content of most awards was the product of
negotiation between the parties, but within a framework which required that
the outcomes of the negotiating process be moderated by reference to the
public interest as interpreted by the industrial tribunal. In addition, a practice
developed whereby the tribunal dealt with major issues, such as the minimum
wage, parental leave and termination, change and redundancy, through a
series of test cases which then ‘flowed on’ into all federal awards and into the
State systems—see, for example,Miscellaneous Workers’ Union of Australiav.
ACT Employers Federation(1979) 21 AILR 88, 199 (unpaid maternity leave);
Termination, Change and Redundancy Case(1984) 8 IR 34, 9 IR 115 (notice
of termination, protection against unfair dismissal, consultation in relation to
technological change and redundancy, and severance pay);Redundancy Test
Case(2004) 129 IR 155;Supplementary Redundancy Test Case(2004) 134 IR
57;Parental Leave Test Case(2005) 143 IR 245;Safety Net Review—Wages, June
2005 (2005) 142 IR I.
This system of industrial regulation came in for a great deal of criticism
over the years from (at various times) employers, unions, business organiza-
tions, politicians, newspaper columnists, academic observers, and economists
(Creighton and Stewart 2005: 23–4, and the sources cited therein). In the
course of the 1990s, these criticisms led to a fundamental reorientation of the
system away from centralized regulation of terms and conditions by awards
of a tribunal in favour of direct negotiation of terms and conditions at the
level of the enterprise. In consequence of changes effected by the Industrial
Relations Reform Act 1993 and the Workplace Relations and Other Legisla-
tion Amendment Act 1996, these negotiations need no longer involve a trade
union, and following the introduction of Australian Workplace Agreements
(AWAs) in 1996, they need no longer be collective in character (Coulthard
1997, 1999; Creighton 2003; Creighton and Stewart 2005: 25–9, 55–63; Pittard
and Naughton 2003: 776–86; Stewart 1999).
Despite these changes, up until 2006, the traditional industrial award
remained at the heart of the federal system of industrial regulation. In part,
that was because the award system still operated as a safety net for all employ-
ees whose terms and conditions of employment were regulated under, or
by reference to, the federal system. However, it was of particular relevance
to that part of the workforce for whom collective bargaining was not a
meaningful proposition—for example, because they were engaged in small,
scattered workplaces where union organization or collective bargaining is
difficult if not impossible. For such workers, the periodic ‘safety net increases’
which were handed down by the Australian Industrial Relations Commis-
sion (AIRC) were of great practical significance by reason of the fact that
they constituted the only means by which they had any realistic prospect of
obtaining pay increases that bore a meaningful relationship to the cost of
living.