4. Towards a Climate Conscious Australian Labour Law

It is an immense task to transform Australian labour law from climate indifference to climate consciousness — an Australian labour law that can be an effective vehicle for climate action. We begin this task by highlighting four pathways of potential change which emerge from our analysis above:

1. Integrate environmental objectives into Australian labour law.
2. Foreground green bargaining.
3. Invigorate democratic solidarity.
4. Explore post-growth (post-capitalist) futures.

4.1 Integrate Environmental Objectives into Australian Labour Law

Australian labour law might begin to overcome its othering of nature by integrating its social and economic objectives with environmental goals. Instructive here is the approach of the United Nations’ 2030 Agenda for Sustainable Development: People, Planet, Prosperity, Peace and Partnership, where sustainable development goals ‘are integrated and indivisible and balance the three dimensions of sustainable development: the economic, social and environmental’.^[1]

Such integration could be affected by enlarging the objects of the Fair Work Act to include specific climate objectives:

• the imperative to ensure that Australia advances an effective response to the urgent threat of climate change which draws on the best available scientific knowledge, as recognised in the objects of the Climate Change Act 2022 (Cth);^[2]
• Australia’s international obligations in respect of climate change (to accompany the reference to ‘Australia’s international labour obligations’ in s 3(a) of the Fair Work Act);^[3]
• explicit recognition that the longstanding labour law objective of securing the conditions for human wellbeing^[4] extend to present and future generations (with ‘Australians’ in s 3 of the Fair Work Act defined accordingly).

Another method of integration is to position work, health and safety laws as one of the core areas of labour law^[5] — a fact now recognised in the ILO’s Centenary Declaration for the Future of Work^[6] and Declaration on Fundamental Principles and Rights at Work.^[7]

Such integration does not, however, obviate these dilemmas nor remove the tensions and trade-offs between environmental, social and economic considerations. Australian labour law will always be a ‘mechanism of adjustment’.^[8] Sustainable development discourse, for instance, does not prescribe processes for how different goals of decent work, participatory decision-making, affordable and clean energy, and climate action should be prioritised.^[9] Expressly integrating environmental goals into Australian labour law enables its recurring dilemmas and any necessary trade-offs in the environmental-social-economic triangle to be openly navigated — and negotiated. Mechanisms are essential here to enable transparent negotiation for the fashioning of synergies through longer time horizons and effective worker representation.

Green collective bargaining should be understood as a key climate mechanism. An increased focus on just transition planning (anchored in an overriding recognition of the importance of phasing out fossil fuels) would be consistent with the approach encouraged by the ILO Guidelines for a Just Transition, as well as being a key feature of the European Union’s Green Deal.^[10] The UN High-Level Expert Group on Net Zero Emissions Commitments of Non-State Entities has also called for businesses to adopt net-zero transition plans, highlighting the importance of businesses partnering with workers, unions, communities and suppliers in developing just transition plans and the integration of the United Nations Declaration on the Rights of Indigenous Peoples into transition plans.^[11]

The mechanisms currently contained in the Net Zero Economic Authority Act 2024 (Cth), which provide for an ‘Energy Industry Jobs Plan’, could potentially be expanded to be consistent with Australia’s climate change obligations, and in a manner that deepens the participatory dimension of transition planning.^[12] At present, the legislation offers valuable transition mechanisms to workforces employed in coal-fired or gas-fired power stations, where a decision has already been made by owners to close all or part of the facility.^[13] They are, however, temporally and geographically circumscribed, and they do not attempt to enable meaningful and long-term consultative processes over climate change driven energy transitions more generally. They apply to a narrow category of worker (those in power generation and working in coalmines that are connected to domestic energy generation, rather than export) and commence at a late stage (only applying after a decision to close has already been made). If similar measures were available to all workers involved in coal, oil or gas extractive industries, and were capable of being triggered by different parties well in advance of any final decision to cease extraction or terminate a licence, this would be valuable in enabling workforces and individual workers to plan futures over longer time horizons and in a coordinated manner.

The integration of environmental objectives into Australian labour law should recognise the distinctive role of Indigenous workers. Both the Net Zero Economy Authority Act 2024 and the Future Made in Australia Act 2024 respectively lay down the goals ‘to support Indigenous persons to participate in, and benefit from, Australia’s transition to a net zero emissions economy’,^[14] and support ‘First Nations communities and traditional owners to participate in, and share in the benefits of, the transition to net zero’.^[15] In line with the ILO Indigenous and Tribal Peoples Convention 1989, recognition of the distinctive role of Indigenous workers should be grounded in the specific climate threats faced by Indigenous communities and how, ‘as agents of change, indigenous peoples are essential to the success of policies and measures directed towards mitigating and adapting to climate change, especially their sustainable economic model and traditional knowledge’.^[16]

4.2 Foreground Green Bargaining

Green collective bargaining is not only essential for effective climate workplace measures, it is also a concomitant of democracy at work and a tool for social justice.^[17] There are two minimum requirements for such bargaining to occur effectively across the Australian workforce. First, the Fair Work Act should be amended so that ‘permitted matters’ include energy-efficiency and waste management measures, net-zero planning, emissions targets and governance, and corporate accountability for the environmental impact of employers (including investment decisions). Second, multi-employer bargaining (together with industrial action) should be permitted in relation to these areas.

Such amendments would be in line with the opinion of the European Economic and Social Committee that green collective bargaining should extend to:^[18]

1. the impact of companies’ activity on the environment;
2. the protection of workers from the effects of the environment and climate change;
3. the impact of the green transformation on a company’s activity as regards work organisation, changing occupational profiles and the skills of employees;
4. internal monitoring of the implementation of points a, b, and c.

Whilst necessary, these amendments are unlikely to bring about effective green bargaining on a significant scale. Even in jurisdictions that provide wide scope for green bargaining, there have been few environmental clauses in collective agreements.^[19]

This highlights the significant changes required in the culture and practice of collective bargaining to enable widespread green bargaining. Amongst other things, managerialism and siloing in this context need to be broken down, so that bargaining parties view environmental matters as being within the purview of bargaining, and not simply as a matter of managerial prerogative or environmental laws. It will also be necessary to contemplate bargaining beyond the enterprise level to bargaining at the industry level and/or across supply chains. All this strongly suggests the need for facilitative provisions in relation to green bargaining. A facilitative approach is in line with Article 4 of the ILO Convention on Right to Organise and Collective Bargaining, which states that:^[20]

Measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or employers’ organisations and workers’ organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements.

Under the Fair Work Act, this approach could be implemented by the Fair Work Commission facilitating green bargaining, as described above or, alternatively, a stronger form that has been adopted in France and Spain, where bargaining parties are obliged to negotiate on certain environmental matters such as sustainable mobility.^[21]

4.3 Invigorate Democratic Solidarity

The profound insight that democracy in society and democracy at work are intertwined is all the more significant in the climate crisis. It stands as a powerful antidote to the managerialism that envelopes environmental workplace matters and the technocratic erosion of routines of participation in society more broadly.^[22] It also lays out the imperative of democratising the state, which underpins the principle in the ILO Declaration of Philadelphia that: ‘[T]he 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’.^[23] As Ewing has observed, social democracy implies ‘giving labour representation in government — not simply to manage labour but to empower and enable it’, thereby necessitating ‘alternative structures for policy-making, operating alongside parliamentary procedures in which governments consult and negotiate with the social partners’.^[24]

The imperative of democratising the state through labour law in a manner that reflects eco-social values is all the more compelling, given the dramatic expansion of scope suggested by a just transition agenda which places the state at its centre.^[25] Amongst the priority areas for inclusion are industrial policy (such as the Future Made in Australia Act 2024), job promotion and training, social protection and social policy (including pension funds)^[26] and environmental laws with workplace impact.^[27] This expansion has an affinity with the broadened scope of labour law urged by Dukes’ emphasis on ‘the labour constitution’^[28] and, separately, by the ‘labour market regulation’ approach to labour law.^[29]

The democratic imperative should be understood together with the principle of solidarity. Not only is solidarity a principle that can be found in labour law,^[30] it is emphatically a democratic principle. As the International Institute for Democracy and Electoral Assistance has explained, solidarity ‘refers to the ties in a society that bind different people to one another, expressing social bonds rather than autonomous individual ties’.^[31] Democratic solidarity is essential, given the widespread restructuring necessitated by the climate crisis — a point made decades ago by Raymond Williams:

It is no use simply saying to South Wales miners that all around them is an ecological disaster. They already know. They live in it. They have lived in it for generations. They carry it in their lungs … But you cannot just say to people who have committed their lives and their communities to certain kinds of production that this has all got to change. You can’t just say: come out of the harmful industries, come out of the dangerous industries, let us do something better. Everything will have to be done by negotiation, by equitable negotiation, and it will have to be taken steadily along the way.^[32]

Equitable negotiation here must mean scrupulous attention to ensuring effective social and job protection for workers adversely affected by climate disruptions, and their ability to take action, including industrial action, to defend and advance their interests within the context of an overall societal commitment to fossil fuel cessation. Even more challenging (revolutionary) than ensuring ‘equitable negotiation’ for workers most affected by climate transitions is establishing a solidaristic ethos that is broad and inclusive, and encompasses both intergenerational and intragenerational solidarity, as well as solidarity with nature.

4.4 Explore Post-Growth (Post-Capitalist) Futures

Treating the economy as an open system with limitless resources (ie capitalism with perpetual growth) will inevitably collide with a global ecosystem enclosed by planetary boundaries.^[33] In the words of the United Nations Framework Convention on Climate Change Secretariat, ‘a growth-oriented economy may not be compatible with a climate-safe economy’.^[34]

As Pope Francis put it forcefully:^[35]

[T]he idea of infinite or unlimited growth, which proves so attractive to economists, financiers and experts in technology … is based on the lie that there is an infinite supply of the earth’s goods, and this leads to the planet being squeezed dry beyond every limit.

This brings us to a ‘dangerous contradiction’ within capital accumulation — capital’s relation to nature. Always present within the accumulative logic of capital, this has reached ‘a key inflexion point’ with ‘the exponential growth rate of capitalist activity’, ‘having an exponential impact upon levels of environmental stress and distress within capital’s ecology’^[36] — the existential threat of climate change being the prime example.

This has prompted calls for steady state or zero-growth economies, and even degrowth economies — that is, societies based on ‘prosperity without growth’.^[37] These calls are being picked up by some trade unions^[38] and labour law scholars.^[39] They radically challenge the established purposes of labour law^[40] and seriously question the productivist or ‘treadmill of production’ paradigm underlying these purposes, as well as the anchoring of worker welfare in continuous (compound) economic growth.^[41]

The purposes of labour law are predicated upon a functioning system of capitalism (or at least one that can be aspired to). Zero-growth and degrowth societies are, however, incompatible with capitalism. As Streeck argues, capitalism is a ‘progressive society’, in the sense of having ‘coupled its “progress” to the continuous and unlimited production and accumulation of productive capital … [and] promis[ing] infinite growth of commodified material wealth in a finite world’.^[42] Given this, Harvey is surely right when he says:^[43]

Capital is about profit seeking. For all capitalists to realise a positive profit requires the existence of more value at the end of the day than there was at the beginning. That means an expansion of the total output of social labour. Without that expansion there can be no capital. A zero-growth capitalist economy is a logical and exclusionary contradiction. It simply cannot exist.