“the State Should Take No Part in Employment Relations, Leaving It Entirely to Employers and Their Employees.” Discuss with Reference to the Modern Australian Workplace.

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“The state should take no part in employment relations, leaving it entirely to employers and their employees.” Discuss with reference to the modern Australian workplace.

The question of state interference in the relationship between the employee and the employer is an intricate one. In a contemporaneous workplace setting, the perpetual debate regarding the appropriate genesis of employment relation law and its manner of form lingers amongst external and internal entities. Whilst the state provides a suitable scaffold off which employers may base their regulations, the question posed is whether or not government bodies are justified in their intrusion into what is primarily an individual and private matter. What’s more, the state regulation of employment relations inhibits the employer’s ability to adapt to the ever evolving requirements of the tumultuous economic circumstances that force change upon their needs. In the interest of the individual’s livelihood and welfare, however, judicial arbitration by the state limits the exploitive opportunities of the employer that arise in employment relationship. Although both approaches are sound in their reasoning, the point of issue remains thus; efficacy and equity are unattainable without adequate contribution by both parties. The state can be defined as a ‘critical actor in employment relations’ (Deery, Plowman and Walsh 2000, p.79). It comprises of government institutions, namely executive, legislative and judicial bodies (Hyman ----), whose primary role is to establish substantive rules and regulations as well as politicising prominent employment relations issues through intervention( Deery, Plowman and Walsh 2000, p.79). Any meaningful assessment of how employment relations should be regulated in the modern Australian workplace must proceed from an exploration of the many different approaches and philosophies which underpin this debate. By utilizing Creighton and Stewart’s (2010) protective view as a framework for how employment relations should be regulated, one is able to measure the importance of state regulation and intervention. The protective view approaches the role of the state as an attempt to redress the power imbalance that is inherent in the employment relationship (Creighton and Steward 2010). The modern Australian workplace exists in a capitalist economic system, whereby workers face inequality of bargaining power due to the fact that employers have invariably greater access to resources and bargaining skills (Creighton and Steward 2010). This transpires through the legitimation and regulation of the employment relationship, though contractual agreement, by employers; a market exchange between unequal parties – the authoritative employer and the subordinate employee (pers.comm. Daniel Houlihan). In order to counter the huge disparities that exist in the employment relationship, the state must act as an objective third party that sanctions laws, which ‘will relieve employees from…the consequences of their relative lack of power’ (Creighton and Steward 2010). This is best demonstrated through the state implementation of National Employment Standards (NES) under the Fair Work Act 2009; not only does the NES set minimum entitlements to leave, public holidays, notice of termination and redundancy pay for all employees and employers under the national workplace system, it also makes up a safety net for these employees (Fair Work Ombudsman 2012). By intervening in the relationship of employer and employee through the determination of minimum employment conditions and standards, the state has effectively played a crucial role in minimizing workers inability to contest the terms and conditions of employment, which are presented on a ‘take it or leave it basis’ by an employer (Creighton and Steward 2010). The view that the state should engage in the regulation of the employment relationship is contended by the libertarian approach, which is based on the rationale...
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