Pity poor old Bob Cratchit. Slaving away from year’s end to year’s end in the counting-house (whatever that is) of his miserly and rather charmless boss, Ebenezer Scrooge, and the old curmudgeon deigns to allow him to take Christmas Day off – on pay!  When Bob has the temerity to note it is only once a year, Scrooge shoots back: “A poor excuse for picking a man’s pocket every twenty-fifth of December!”

If Bob Cratchit had been working for a “national system employer” in Australia today, rather than in 1840s England in which Charles Dickens’s A Christmas Carol is set, he would not need to rely on the problematic goodwill of his employer. He would have a legal entitlement to paid leave on Christmas Day as well as the other seven listed national public holidays and any other applicable State ones. Additionally, he would be entitled to four weeks paid annual leave. These entitlements are provided under the National Employment Standards (NES) in Pt 2-2 of the Fair Work Act 2009  (Cth).

The NES, as part of Australia’s industrial relations framework, are considered to underpin the system of collective bargaining provided under the Fair Work Act 2009 and – it is understood – to thereby assist in giving effect to the human rights principle of the right of workers to collectively bargain: as enshrined in the Convention Concerning the Application of the Principles of the Right to Organize and to Bargain Collectively (1949) 96 UNTS 257; ILO C98; [1974] ATS 5.

A metaphysical sensibility imbues A Christmas Carol – not just with the spectral visitations endured by Scrooge, but with the philosophical response suggested by Dickens to addressing the poverty and hardship of contemporary England. For Dickens it is a matter of charity, good intentions and personal responsibility. Ultimately, Scrooge is redeemed through his own philanthropy.

This individualistic focus highlights the fundamental flaw in the liberal conception of human rights, premised as it is on a quasi-religious assumption of universal equality: it ignores the actual inequality of people and its socio-economic reality. We are familiar with Scrooge’s isolation, less so with Cratchit’s. As the seemingly sole employee of Ebenezer Scrooge in a world in which organised labour was still struggling to find its place (unions were illegal in England until 1871), Cratchit clearly had little bargaining power to assert any “right” to fair working conditions.

In Australia today, there are legal rights to form and join trade unions provided pursuant to the Fair Work (Registered Organisations) Act 2009 (Cth). However, in considering the practical effectiveness of these rights in terms of facilitating meaningful collective action by employees to protect existing – and secure better – pay and working conditions, they should be assessed against the limitations on when and what kinds of industrial action are “protected” from possible legal action, provided under Pt 3-3 of the Fair Work Act 2009.

And poor old Bob Cratchit? He did not need his employer’s benevolence. He needed a union to fight for him.

The right to collective bargaining is discussed in The Laws of Australia Subtitle 21.5 “Work”.

For more information about The Laws of Australia, click here.