Labour Law - Reading Week 1

Perspectives on Workplace Law and Approaches to Legal Regulation

• Labour law has become its own academic and professional field.

Defining Labour Law

• Professor H Arthurs defines labour law can be defined in two ways.
• Labour law can be seen as the norms, processes, and institutions used by states to regulate employer-employee relations; this excludes aspects without state involvement.
• Labour law can also refer to the subject taught in law schools or practiced by lawyers.
• Arthurs notes labour law must focus on the relationship between workers and employers
• Professor J J Donohue III (Yale Law) defines labour law as a broad set of rules governing workers' lives and economic welfare.
• These rules vary greatly, from humanist views in Brazil to lax rules in the US.

Evolution in Australia

• Australia's labour laws have evolved rapidly, shown by system changes in the 2000s
• The 2005 Work Choices reforms replaced conciliation and arbitration with individual and collective bargaining.
• The 2009 Fair Work Act and the 2022 Fair Legislation Amendment Act returned more labour standards protections.
• Studying Australian labour law involves examining the legal regulation of worker-employer relationships.
• Labour law aims to balance the power dynamic between 'dependent' workers and capital enterprises.
• A central goal of Australian labour law has been re-balancing the power dynamic, protecting vulnerable workers.
• Laws now have to consider unstable work arrangements like casual and labour hire.

Modern Challenges

• Jurisdictions face difficulties classifying workers and often label them as company owners.
• Some scholars want to broaden labour law to include labour markets and social/economic objectives.
• Trade unions have weakened, increasing reliance on statutory mechanisms and dispute resolution processes.
• Changing labour markets, regulation, COVID, and technology have challenged how labour law is analyzed.

Workplace and Industrial Relations

• The employer-worker relationship has both economic and legal aspects.
• Unlike family or the military, employment offers freedom of choice, which affects the relationship.
• Unions are a result of workplace issues not the cause.
• Industrialisation requires worker discipline, changing work from tradition to industrial logic.
• Industrialism led to a new class that depends on selling their labour for a living.

Employment as a Social Construct

• Employment involves cooperation and shapes culture and quality of life.
• Reintegrating ex-offenders into employment decreases recidivism and eases their return to normal life.

Society Influence

• Labour law reflects the economy and society and industrial tribunals help balance economic interests with individual needs.
• Actions exist to both provide protection to employers from financial harm, and protect the supply chain.

Politics Influence

• The Howard government's Work Choices reforms shifted the labour relations system to be more individualistic.
• It was regarded as a dramatic policy shift
• The Rudd government restored rights lost in the Howard government such as unfair dismissal laws.
• Political and social activity shapes labour law, particularly in Australia where parliament is more influential in shaping the laws other than common law.

State and Government Control

• Individual parties are rarely permitted to wholly determine their legal relationship without some form of state intervention
• State intervention includes independent tribunals, legislated standards, and courts.
• These fluctuate over time

Historical Analysis

• Australia uses tribunals to ensure unions bargain collectively and fairly.
• Rothman J in 2006 noted that industrial action was heavily penalized in the 1800s, which lead to the need for Federation of Australia.
• Unions believed the introduction of compulsory arbitration would limit their negotiating power for higher wages.
• The strikes of the 1890s led to labour law-making power being given to commonwealth.
• Naughton (2017) noted enduring qualities are: independent tribunals role, accounting for public interest, protecting the vulnerable, and trade unions balancing both sides.
• Ensuring fairness has been an emphasis for over a century.

New Federal Regulation (1904)

• Australian labour law was dominated by conciliation, arbitration, and awards for a century.
• Since 1993 collective agreements came into effect
• Conciliation, Arbitration and Awards were Dominant as parties could not contract out of awards, industrial actions were created, the act facilitated state industrial policy, and industrial tribunals perpetuated it.

ABS Data

• According to the ABS, 80% of the workforce were award covered in 1990
• In 1995 it dropped to 35%
• The most recent figure puts this at 23%
• Union registration helped unions but also brought internal regulation.

Modern Flexibility

• Australian labour law has had more changes in the last 30 years than at any other point since the 20th century.
• Australia is one of the most regulated systems in the world.
• It is felt that business needs outweigh regulatory policy, and all attempts at social justice are below cost objectives.
• It's important to find a balance decentralised bargaining, and protecting vulnerable workers.

Deregulation

• Australia has had deregulation since the 1990’s because of neoliberalism
• The dismantling of awards has had a big shift towards the US style model
• In the 1980’s Think tanks, businesses, academics and others supported deregulation.

Employer Based Bargaining

• The most radical initiatives have been at the state level, but most radical impact has been from the federal shift towards employers.
• Casualisation has benefitted casual employees but been hard on employees.
• Reforms during Work Choices led to individual agreements known as AWA’s between bosses and employees, and had to be checked and signed off by anAuthority.
• The aim of FW Act’s was to set up a system for collective bargaining similar to the one before work Act’s

Key Changes

• Changes contained collective bargaining, restoration of dismissal protection, and right to strike.
• The focus of reforms initiated by the Albanese Government are fairness, Gender equity, and flexible agreements.

Gender and Social Justice

• Most atypical workers are women, however labour law scholarship has not focused on their plight
• Focus has grown on equal pay, with attention bought to equal pay.
• Social inclusion has become a factor when considering framework of labour and employment law.
• Emphasis placed on generating jobs and participation. Labour laws are related together in Europe.

Based on chapter 1 of the text book