A common touch is needed (AFR 1/8/01)

One wonders how employment lawyer Louise Clegg could be so far out of touch to assert that applying the common law to industrial relations would mean no regulation at all (Kirby’s not the one who needs to be hosed down, 31 July). The common laws of contract and tort, with equity law, have the potential to provide a sound basis for negotiating mutually acceptable employment relationships.

Clegg also fails to understand that, far from resolving industrial disputes, Australia’s industrial tribunals and industrial law have encouraged them. This can be seen from a comparison of our industrial disputes record with other countries that have relied on ordinary courts that are, according to Clegg, "ill-equipped" to handle them.

Justice Kirby’ biased speech, deservedly criticized by [industrial relations barrister] Stuart Wood, reflects the elitist judicial interventionism in employer-employee relationships that has contributed to Australia’s high unemployment. It also reflects the failure of most court and tribunal officials, and employment lawyers, to understand that employers generally have no intrinsic bargaining superiority and that it is difficult, if not impossible, for third parties to make meaningful judgments on employment contracts.

Such contracts necessarily include expectations and understandings that are impossible to specify in explicit terms. These implied or relational terms are, however, as important to the satisfactory performance of a contract as the explicit or formal terms that are normally the subject of misguided judicial attention. That is why we need to abolish industrial tribunals and their judicial interventionism.