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¶ … 21st century the contract of employment remains fundamentally a means of legitimising an uneven power relationship between master and servant. Critically evaluate this statement.

From the time that Australia first became a penal colony of Great Britain in 1788, the country has experienced heated labor tensions. Part of the reason for this, is because the nation would mirror the same challenges that were often being seen, during the industrial revolution in places such as: the United States and Europe. Where, the overall nature of labor relations would be heated, when Australia first became a commonwealth in 1901. As the various unions and business owners would often engage in emotional labor disputes resulting in violence. This would be the state of labor retaliations until the end of World War II. Where, it would mark a shift that was occurring in the nature of labor relations, as various states began to have more of an influence, through the various laws and regulations affecting the relationship between master / servant. As the nature of this relationship, would evolve into one of: owners / manager vs. The employees who work for them. At the heart of most disputes, were the issues of: more pay for employees, better working conditions and less hours working. Once various labor laws began to take effect in most states, this would provide unions with the ability to achieve these objectives. As the period from the end of World War II to the 1980's would mark, the strong state based arbitral model. ("Australia in Brief," 2010) Then, as globalization began to affect the economy, is when various changes would take place in labor relations. Where, the overall influence of the unions would slowly be whittled away, with the nature of labor relations shifting towards an emphasis on individual labor contracts. This would give businesses more influences over the factors of: pay, benefits and working hours. What happened was: the federal government began to pass various labor regulations to address these issues. This would overwhelm the existing laws in the states, as the nature of the employer and employee relationship, would be redefined (throughout the 1990's into the early 2000's). With the Work Choices Act, creating a standard that would favor businesses over workers. However, with the Howard government no longer in power the nature of this relationship would shift once again, as the federal government would pass the Fair Work Ac of 2009. This would eliminate the individual contractual system utilized under the Work Choices Act and it would give unions / individuals more of voice in various matters of labor relations. (Bowden, 2009, pp. 218 -- 227) However, to fully evaluate the statement of the essay requires examining how issues such as: termination of employment, discrimination, industrial disputes and work place health / safety issues. Together, these different elements will provide the greatest insights, as to how the overall power of the relationship between employer and employee is evolving.

Termination of Employment

The issue of employee termination has always been one of the most contentious, which is at the heart of many employer / employee relationships. Where, employers were often viewed as cold and out of touch with reality, in their desire to achieve profits at any cost. As many managers would often engage in a variety of activities, to bully employees into complying with their requests to include: threats, intimidation and humiliation. Over the years, these practices would often lead to resentment among employees, who felt that they were being treated unfairly. In the decades after World War II, the issue would be continually brought up by various unions and the Convention Concerning Termination of Employment at the Initiative of the Employer 1982. This would establish various procedures for employees, to challenge their dismissals or their treatment, surrounding their dismissals as unfair. This is based upon the grounds of harsh treatment. In 1993, Australian law would mirror these standards, with the passage of the Industrial Relations Reform Act. This would give workers an effective way of challenging the circumstances surrounding their dismissal or termination. Over the course of time, this would create an atmosphere, where workers would feel they have a chance of challenging the unfair employer / employee relationship. (Chapman, 2009)

Then, in 2002 this would change with the passage of the Workplace Relations Amendment Act of 2005(Work Choices). This would radically shift the labor relationship, as employers would have greater flexibility in avoiding the various provisions of the Industrial Relations Reform Act. Where, a number of restrictions would apply, in how the law would define who is eligible, to challenge their termination from an employer. With Work Choices granting employers a number of different exemptions to include exemptions for: employers that have over 100 employees, dismissals for operation reasons and the exclusion of seasonal employees. At the same time, it would extend the default qualifying period from three months to six months and it would replace the systems that were being utilized by the state. (Chapman, 2009)

In 2009, the Work Choices regulations would be overturned by the Fair Work Act. This eliminated: various employer exemptions, it removed the ability of employees / employers to enter into individual labor contracts, it requires both employers / labor unions to bargain in good faith, and it addresses general protections. This prohibits employers from discriminating against employees, who are entitled to penalties under other provisions of the law. This is significant, because it would highlight how a shift is occurring in the way various labor disputes were handled, as a relationship of employer / employee domination would swing back and forth, with the passage of various laws / regulations. Where, the underlying amounts of power will shift between the employer and employee. What this shows, is that despite the various laws and changes in the economy (because of globalization), the basic struggle between employers / employees, continues to remain a contentious issue. As employers would like to have greater flexibility; in issues surrounding: termination / dismissal. While at the same time, employees would like to have more control over fighting unfair termination practices. In many ways, one could use this information as a way, to determine the uneven relationship that exists between the two sides. With this constant shifting in power, taking shape in the form of various laws that is designed, to give one side greater amounts of control over the other. (Chapman, 2009)

Discrimination

Throughout much of the early history of the commonwealth, discrimination in the workplace was a major issue that was constantly being wrestled with. What happened was, Australia followed a similar pattern that was occurring in many developed societies throughout the 20th century. Part of this is in response to the way that many of the nation's different minorities were treated in the past, as two forms of history would emerge. One that would support the status quo and another that would talk about minorities facing constant discrimination. In the workplace, this would mean that the economic mobility of not only minorities, but women would also be brought into question during the 1960's. Especially, with various conventions and treaties being signed by the nation on an international level (at the United Nations), yet within the country itself discrimination continued to exist. A good example of this can be seen with a shift in government policies toward Aborigines during the 1960's. For decades the Aborigines faced a systematic form of discrimination in one way or another, as the government would utilize various policies to assimilate them into society. The problem was that these polices, were not improving the lives of minorities. Instead, they were created divisions within Australian society that was extending to the workplace. (Attwood, 2006, pp. 24 -- 27) The passage of the first anti-discrimination law would occur in 1966 with the Prohibition of Discrimination Act. This prohibited racial discrimination based upon color or national origin through: restricting access to food / water, the termination / exclusion of employment and the control of land. This is significant, because it would signal the first time that the some form of laws would be attempted. To address the issue of discrimination in the workplace. The problem was that the law would only apply to one state, which would create a series of anti-discrimination laws that would vary throughout Australia.

To address this issue, Parliament would pass the 1975 Sex Discrimination Act. This law would make it illegal for someone to be discriminated against in areas of: employment, marriage, education and the delivery of different goods / services. At the same time, the Act would allow for the creation of an independent board to oversee it various provisions (the Australian Human Rights Commission). They would serve as a watchdog organization for instances of discrimination that were taking place by: awarding compensation, hearing complaints and issuing injunctions to prevent discrimination from occurring. This is important, because it would provide a basic foundation for anti-discrimination laws throughout the commonwealth. Over the next several decades a variety of anti-discrimination laws would be passed, to provide more protection to the various groups within Australian society. The most notable would include: the 1976 Racial Discrimination Act, 1981 Handicapped Persons Equal Opportunity Act, the 1984 Equal Opportunity Act, 1989 Equal Opportunity Amendment Act -- Intellectual Disability, 1990 Equal Opportunity Amendment Act -- Age, 1993 Compulsory Retirement Abolished, 1997 Equal Opportunity Amendment Act -- Sexual Harassment and the 2009 Equal Opportunity Amendment Act -- New Grounds. ("History of Equal Opportunity in South Australia," 2010) These different laws are important, because they would attempt to provide a basic frame work for addressing the various forms of discrimination that were occurring in the workplace, in one form or another.

As a result, the power relationship that exists between employer and employees is continuing to evolve, based upon the various laws designed to prevent discrimination and the practices that were common in the past. A good example of this can be seen with the sexual harassment lawsuit that was filled by Kristy Fraser -- Kirk against her former employer David Jones. What happened was Kirk, alleges that during her employment with the company she was faced with the constant fear of sexual harassment from CEO Mark McInnes. When she followed the law and told him no repeatedly, McInnes continued with his pattern of behavior. The situation became so bad, that Kirk was forced to leave the company and is now filling a $37 million lawsuit against the firm. This is significant, because it shows the lawsuit is one of the largest sexual harassment lawsuits filed. Where, it is testing the various anti-discrimination laws that have been passed and it will determine the overall scope, of the law that they would apply. (Lahey, 2010)

The above example shows, how the relationship between employers and employees is continuing to evolve. Where, various laws and regulations have been enacted to prevent some of the abuses that would occur in the relationship at the hand of employers (discrimination). Yet, most of these laws face the scrutiny of constant legal interpretation from the courts. As the overall intent and the way they would apply to situations can be a matter of debate. Within these issues, are the heated emotions of the underlying issues of power that exists between: employers and their employees'. In many ways, one could argue that this relationship is continuing to evolve, based upon the power struggle that exists between the two sides. Where, both will attempt to use legal interpretations to maintain their current relationship. As a result, the overall nature of the relationship between employers and employees is shifting, to a variety of new battlefields.

Industrial Disputes

Throughout its history, labor disputes have often been associated with the employer / employee relationship in Australia. As the different strikes that would occur throughout the mid to early 20th century would underscore; the heated differences between both sides. At the heart of most disputes was: the issues of higher wages, less hours and better working conditions. However, since the end of World War II, the number of labor disputes would decline dramatically. With most unions, enjoying a rise in power and prominence between the 1940's to the 1980's. Then, as the economy began to be affected, by the forces of globalization, meant that a shift would occur in how various labor disputes would be resolved. As many labor unions would begin to have less influence over industrial disputes. What happened was, the period between the 1980's and early 2000's would invite a time of low inflation and above average economic growth for the economy. These two issues would cause the number of industrial disputes to decline, as the low inflationary pressures would mean that unions would not feel the pressure, to ask for an increase in wages. At the same time, the economic growth that was being experienced would encourage many employees, to remain quite about various industrial related issues. Then, when you combine this with the different laws / regulations that were passed during that time (such as the anti-discrimination laws), meant that many employees would become more laid back when it came to disputes in the workplace. These factors are important, because they would signal how: the underlying economic conditions, various regulations and low inflation would make many workers throughout the commonwealth complacent. As the decades of growth, would limit the overall number of industrial disputes dramatically. (Perry, 2005)

The periods of economic growth and stability, would also mean that country's unemployment rate would remain low for long periods of time. This meant, that workers would have a choice as to who they wanted to work for and what kinds of behavior they were willing to tolerate. As this was taking place, there would be pressure around the world during the late 1980's and into the 1990's, to reduce trade barriers and various trade restrictions. One of the most notable of protectionist policies was collective bargaining. This is where unions would have the power to negotiate with employers (on behalf of employees) pertaining to issues such as: wages, benefits, working conditions and discrimination. During the 1980's these amounts of power that workers would have through the unions, was believed to be hurting the ability of the economy to remain competitive on a global scale. At the same time, the downfall of the Soviet Union; would mean that there was more of an emphasis around the world, to embrace the ideas of free trade. (Perry, 2005) Since free trade works off of the principal of reducing trade barriers and lowering labor costs as much as possible, meant that a shift would occur in the relationship between the employer and the employee. As a result, the Work Choices Act was established in 2002, through the Howard government. The idea of the legislation was: to redefine the labor relationship that existed in Australia. The way to do this was: to strip the unions of their power in the way, they use collective bargaining to settle various disputes. This meant that employers would be able to have individual labor agreements with employees. The idea was that each employer could be able to more accurately determine the needs of the business, by having individual contracts that would protect the individual, while giving the employer the flexibility to set wages and benefits. This is important, because the law would severely limit the ability of the unions to influence employees, by making it difficult for them to: engage in strikes, work stoppages, slow downs, secret ballots, over time bans and work to work rules. (Holt, 2010) This is significant, because it would underscore a radical shift that was occurring in the employer / employee relationship. Where, the Howard government wanted to restore the balance of power towards employers, by giving them greater to control to negotiate individually with each employee. While at the same time they were trying to limit the power of the unions during the process as much as possible. This was an attempt by the government, to redefine the relationship of industrial disputes, by limiting the overall amounts of influence that unions could have in the process.