96 SITUATING HUMAN RESOURCE MANAGEMENT
Enforcing ethical employment practices in the early
twenty-first century
The continued operation of the safety net afforded by the traditional award
system clearly was not consistent with the dictates of certain forms of eco-
nomic orthodoxy, or with the rhetoric of some advocates of HRM. For the
free market purist, the continued centrality of the award system involved an
unacceptable distortion of the market. For the postmodernist individualist it
was suspect by reason of the fact that it tended to subvert individual autonomy
in the workplace. But for those who recognize that, with rare exceptions,
employers and employees do not come to the market on equal terms, it consti-
tuted an important contribution to the adoption and maintenance of ethical
employment practices by limiting employers’ capacity to exploit their superior
market position to the disadvantage of employees and potential employees. It
follows that the emasculation of the award system by the Work Choices legis-
lation, and the preferencing of individual agreement-making over collective
bargaining, must inevitably compromise the role of the law as a means of
promoting ethical employment practices.
That said, the legislation does continue to recognize, and to a degree,
facilitate the regulation of terms and conditions of employment through col-
lective bargaining. It recognizes the role of trade unions as representatives
of their members and potential members in negotiating agreements, and
representing individuals before courts and tribunals. It provides continuing
access to an independent tribunal that has the capacity to facilitate collective
bargaining, albeit one that has only very limited capacity to impose arbitrated
outcomes where facilitation fails. Significantly, the legislation also recognizes,
and indeed encourages, employers collectively to ‘negotiate’ terms and con-
ditions of employment with their employees without the involvement of a
trade union or other organization. Critics of Work Choices would suggest that
in many instances employer–employee agreements consist of little more than
the rubber-stamping of terms and conditions unilaterally determined by the
employer. Nevertheless, even the pretence of collective negotiation may serve
to moderate abuse of market power by employers in some instances.
Furthermore, it is important to appreciate that the legal contribution to
ethical behaviour in employment is not limited to the facilitation of collective
determination of terms and conditions of employment. On the contrary, the
law makes an important contribution to the encouragement and maintenance
of ethical employment practices in a number of areas where the principal focus
is on the rights of the individual—bearing in mind that in some instances
there is a collective flavour to the enforcement of those rights, and that indi-
viduals are sometimes placed under reciprocal obligations to their employer,
to themselves, and to other parties.