2. The Contradictory Logics of Labour Law in the Climate Crisis

Australian labour law comprises three core areas: the contract of employment, minimum standards (legislative standards and awards) and collective bargaining (including industrial action). Adjunct are two areas of law: work, health and safety laws; and equality and anti-discrimination laws.

In this section, we draw out the contradictory logics of labour law that structure Australian labour law’s role in the climate crisis. We begin with the two fundamental principles that are often said to underpin labour law. The first is the protective purpose of labour law, which is usually attributed to labour law theorist Otto Kahn-Freund, who said that ‘(t)he main object of labour law has always been, and we venture to say always will be, to be a countervailing force to counteract the inequality of bargaining power which is inherent and must be inherent in the employment relationship’.^[1] The protective purpose of labour law is part of the second, and broader, principle that ‘labour is not a commodity’. Originally articulated in these terms in the 1880s,^[2] its centrality to labour law is such that it is the first of the four ‘fundamental principles’ enshrined in the International Labour Organization (‘ILO’) 1944 Declaration of Philadelphia.

The fundamental principles of labour law (the protective purpose, and labour is not a commodity) deeply implicate democratic commitments. In 1897, Sidney and Beatrice Webb characterised trade unions as a necessary element in a democratic state. Unions were, in and of themselves, democracies: organisations composed of wage-earners, organised on the principle of ‘government of the people, by the people, for the people’. By participating in unions, workers were participating in the machinery of government.^[3] In the 1920s, the German labour law theorist Hugo Sinzheimer argued that for democracy to be meaningful, citizens had to do more than simply vote in regular elections; they also had to be free from unfair treatment at work and be given the chance to have a meaningful say about the rules that governed their daily working lives. In this profound way, democracy at work and democracy in society were tied to each other.^[4]

These orientations are reflected in the fourth fundamental principle of the ILO 1944 Declaration of Philadelphia, which states that:

the war against want requires to be carried on with unrelenting vigour within each nation, and by continuous and concerted international effort in which the representatives of workers and employers, enjoying equal status with those of governments, join with them in free discussion and democratic decision with a view to the promotion of the common welfare.^[5]

Both the protective purpose and the principle that labour is not a commodity involve a logic of decommodification which seeks to address ‘the most unfortunate attributes’ of labour as a fictitious commodity.^[6] Labour law has, however, always had ‘contrapuntal themes’,^[7] with the logic of decommodification inevitably partial. For one, it does not seek to completely decommodify labour. As Dukes and Streeck have pointed out:

[L]abour law must serve two purposes at once: social integration through legally enforced conformity with collectively held values of social justice, giving rise to a legitimate social order, and capital accumulation demanding a social order that must first be profitable before it can be just.^[8]

Labour law’s logic of decommodification is, therefore, partial because it is contradictory, resulting in a series of recurring regulatory dilemmas centred upon four social processes associated with labour being a ‘fictive’ commodity: the incorporation of labour into the labour market, the matching of labour by institutions, labour control and the reproduction of labour.^[9] How these dilemmas play out in particular contexts — including the climate crisis — is shaped by the substance of labour laws and also their constitutive (commodity) form and class struggle.^[10] Labour law — including Australian labour law — is invariably a ‘contested terrain’.^[11]

There is another deep sense in which labour law’s logic of decommodification is partial — it does not extend to nature. This logic combines critical economic and social considerations, but it fails to include an explicit environmental dimension. Drawing on Polanyi, Zbyszewska argues that the separation of labour and ecology in labour law can be traced to the rise of laissez-faire capitalism, which led to the commodification of labour and land — and their separation — with ‘modern labor law norms subsequently replicat[ing] and naturali[zing] this disconnection’.^[12]

A consequence of this disconnection is that nature is viewed outside the exchange relationship between labour and capital and, by implication, the bargaining process between organised labour and employers. In labour law policy and scholarship, priority is given to the exchange of remuneration for subordination (the so-called wage–work bargain) — an exchange that holds no place for nature. Like neoclassical economics, the dominant approach in labour sees ‘nature’ as external to labour market exchanges.^[13]

With labour partially decommodified and nature not at all, the hierarchical relationship between humanity and nature assumed by labour law fits hand-in-glove with Enlightenment ideas of the domination of nature.^[14] These are ideas deeply rooted in Western legal traditions. Unlike Indigenous legal ontologies, these traditions construct human beings as separate to, and in a hierarchical relationship with, the non-human world. This is informed by the Cartesian notion that human beings should strive to be the ‘master and possessor’ of nature, where there is a natural conceptual division between ‘persons’ and ‘things’ in which the latter are a resource for the former.^[15]

Labour law is, in this regard, no exception. While some of its master concepts aim to soften and ameliorate the impact of capitalist systems on human beings, labour law remains committed, as an overall system, to securing capitalist production premised on the idea that it is acceptable to appropriate and control humanity and nature as a capitalist resource.^[16]

The ‘othering’ of nature by labour law does not mean that environmental considerations necessarily fall outside the realm of labour law. It is a type of fetishism, by which we mean ‘masks, disguises and distortions of what is going on round us’.^[17] This is because labour and nature are mutually constituting — the labour process depends upon and is shaped by the environment as much as the environment is an object of labour. The othering of nature does not — cannot — abolish this deep relationship. What it does is characterise the relationship in a particular way (based on commodification and human domination of nature). The result is a fundamental contradiction where environmental considerations play out through labour law but in mystified ways.^[18]

We can depict labour law’s contradictory logic of de/commodification through three interacting dyads.

We now draw out the main ways in which this contradiction expresses itself in relation to Australian labour law: invariably to the displacement, diminution and detriment of environmental considerations, as well as to the enhancement of managerial prerogative and the commodification of labour. The preponderant weight is on the right-hand side of the contradiction.