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Anderson, Gordon & Gahan, Peter & MItchell, Richard & Stewart, Andrew, "The Evolution of Labor Law in New Zealand: a Comparative Study of New Zealand, Australia, and Five Other Countries", Comparative Labor Law & Policy Journal v. 33 no1 (Fall 2011) p. 137-187

The authors compare protective labor legislation in New Zealand and Australia from 1970 to 2010 using a “leximetric” index assigning numerical values to variable sets measuring the regulation of (1) alternative employment contracts; (2) working time; (3) dismissal; (4) employee representation; and (5) industrial action. They conclude that the 1991 Employment Contracts Act caused New Zealand’s precipitous decline from above to below Australia’s protective level. By abolishing compulsory arbitration and the awards system, the Act weakened employee representation, industrial action, and the regulation of alternative contracts and working hours. The 2000 Employment Relations Act partially rectified the decline, causing New Zealand and Australia to converge. The authors also compare Australia, New Zealand, France, Germany, India, the United Kingdom, and the United States to test the “legal origins” hypothesis, which holds that a country’s legal origins—common law or civil code—is the primary factor determining its mode of market constitution and regulation. It predicts that countries with common law origins produce “free market” regulatory regimes with superior outcomes, towards which countries will converge. Contrary to the legal origins hypothesis, the authors found that limited convergence was due to political factors, particularly partial legislative reversals of neoliberal policies.

Subjects: Australia, Comparative Labor Law
Newsletter: Vol 11, Issue 7
Full-text links: || WESTLAW || LEXIS-NEXIS || 
Anderson, Helen, "Phoenix Activity and the Recovery of Unpaid Employee Entitlements – 10 Years On", Australian Journal of Labour Law v. 2011 (August 2011) p. 141-162

This article discusses the effectiveness of several Australian programs designed to protect unpaid employee entitlements in the event of corporate insolvency; notably, the Corporations Law Amendment Act 2000 and the General Employee Entitlements and Redundancy Scheme (GEERS). The programs were designed to curb “phoenix activity” – where assets are removed from a failing company to avoid losing them to creditors in liquidation and the company subsequently emerges debt-free without having paid due employee entitlements. The article discusses how the non-payment of employee entitlements has been dealt with over the past decade and purports that the legislation has failed to adequately protect unpaid employee entitlements. For example, the Corporations Law Amendment’s requirement that a company’s executive possess the subjective intent to deprive employee benefits has predictably resulted in no prosecutions under the law. After discussing the limitations of several existing schemes, the article suggests new measures to improve the likelihood of recovery of unpaid employee entitlements.

Subjects: Australia, Case Studies: Country-Specific, Employment Law, Pensions
Newsletter: Vol 11, Issue 9
Full-text links: || LEXIS-NEXIS || 
Baird, Marian, "Orientations to Paid Maternity Leave: Understanding the Australian Debate", Journal of Industrial Relations v. 46 no3 (September 2004) p. 259-275

This article explores why there is no universal paid maternity leave provision in Australia despite the fact that one was recommended by the Human Rights and Equal Opportunity Commission (HREOC) in December 2002. The author suggests that a national maternity leave scheme has thus far been thwarted because of the influence of three different orientations in public policy: (1) a “welfare orientation,” based on the traditional notion of the male breadwinner, (2) a “bargaining orientation,” based on the view that paid maternity leave was an employment condition that should be treated at the bargaining table, and (3) a “business orientation,” based on the view that the benefits of paid maternity leave do not outweigh the costs to business of paying workers while on leave. All three orientations do not adequately address the needs of modern Australian working women. The author proposes the “new equity orientation” in the hopes of developing a different way of understanding how policy could and should be developed. Based on social feminism and equity, the author argues that paid maternity leave should be considered a fundamental entitlement for all working women. By providing security of employment through universal access to paid maternity leave, women will achieve real equality in the workplace as well as in society.

Subjects: Australia, Women’s Rights
Newsletter: Vol 4, Issue 3
Full-text links: || WWW || 
Bluff, Elizabeth & Johnstone, Richard & McNamara, Maria & Quinlan, Michael, "Enforcing Upstream: Australian Health and Safety Inspectors and Upstream Duty Holders", Australian Journal of Labour Law v. 25 no1 (March 2012) p. 23-42

This article reports on an empirical study about the enforcement of Australia’s occupational health and safety (OHS) legislation against suppliers and designers of products used in workplaces. In the last 30 years, Australia has broadened its OHS legislation to cover suppliers and designers of substances and systems that affect the safety of workers. These suppliers and designers, referred to as ‘upstream duty holders,’ are subject to inspections and penalties for the workplace risks their products create. The authors examined compliance reports, workplace documents, and OHS statistics collected from 2003-2007 in four Australian states: Victoria, Queensland, Tasmania, and Western Australia. They also observed and interviewed OHS inspectors. The researchers found that the inspectors noted upstream duty violations less frequently than other types of violations. When they did find violations for upstream duty holders, they focused on supplier violations rather than design-related violations. Moreover, prosecution of design-related risks generally only occurred after major workplace accidents that resulted in injury or death. However, the authors note that even if OHS inspectors begin to systematically pursue upstream violations related to design, the international nature of many supply chains pose likely jurisdictional problems for their prosecution.

Subjects: Australia, Case Studies: Country-Specific, Health and Safety
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Brown, Michelle & Minson, Rowan & O'Connell, Ann & Ramsay, Ian, "Employee Participation in Employee Share Ownership Plans: The Law, Company Objectives and Employee Motives", Australian Journal of Labour Law v. 25 no1 (May 2012) p. 1-51

This article discusses the history of Employee Share Ownership Plans (ESOPs) in Australia and compares the public policy rationale behind allowing these programs with the employee motives for participating in the share ownership plans. The article finds that there is a mismatch between the employee motivations and the government’s policy rationales and discusses the implications of this mismatch. The current Federal Government supports ESOPs on the grounds that are seen to have the capacity to align employer and employee interests, thereby promoting workplace productivity. The Federal Government also cites greater involvement by employees in the business as rationale behind supporting ESOPs. In contrast, this article shows that employees most commonly view ESOPs as a way to share in company profits, a savings plan, or an element of a reward package. It also finds that involvement in company decision-making is less important to ESOP-participating employees than the financial value of ESOP participation. The results of this study can assist companies in designing ESOPs that appeal to employees. The results also suggest that the government pay close attention to the financial implications for employees of policy initiatives intended to increase the level of employee participation in ESOPs.

Subjects: Australia, Case Studies: Country-Specific
Newsletter: Vol 11, Issue 9
Full-text links: || LEXIS-NEXIS || 
Cameron, Craig, "Oxymoronic or Employer Logic? Preferred Hours Under the Fair Work Act", Australian Journal of International Law v. 25 no1 (March 2012) p. 43-64

In Australia, preferred hours clauses allow workers to elect to work, different or additional hours at their standard rate of pay. These clauses are controversial; many unions and politicians believe that the clauses undermine the Fair Work Act by relieving employers of the obligation to pay overtime. Employers counter that the Fair Work act acknowledges the need for flexibility so that business can run efficiently and individual workers can be accommodated. The author examines case law relating to preferred hours clauses and finds that employers often pressure workers into agreeing to them in order to save on labor costs. The author argues that this exploitation that is, on balance, more detrimental to the labor force as a whole than beneficial to the workers who request preferred hours arrangements. To preserve flexibility for workers who desire it, the author recommends that employers should be required to either show they have a genuine need for a preferred hours agreement, or that the employee engaged in the agreement genuinely needs or benefits from the arrangement.

Subjects: Australia, Case Studies: Country-Specific, Comparative Labor Law, Working Hours
Conaghan, Joanne, "Labour Law and New Economy Discourse", Australian Journal of Labour Law v. 16 no1 (March 2003) p. 1-49

This article explores the emergence of narratives and counter-narratives of the New Economy and the implications of these narratives for labor law, with particular reference to recent developments in Australian labor law and elsewhere. First, the author discusses the shifting theoretical characteristics of labor law, noting the contentious and evolving role of the New Economy discourse in this process. Second, the author examines the impact that this discourse is having on the scope and content of labor law. The author concludes by cautioning labor law scholars to approach the idea of the New Economy with caution and skepticism so as to prevent competing discourses from being eclipsed by any one super-narrative.

Subjects: Australia, Labor Rights in General (Misc.)
Newsletter: Vol 2, Issue 10
Cooney, Sean, "A Broader Role for the Commonwealth in Eradicating Foreign Sweatshops?", Melbourne University Law Review v. 28 (August 2004) p. 290-342

This article examines the link between Australian firms and foreign sweatshop labor and suggests potential legislative strategies that could be taken to combat these substandard working conditions. The author describes how Australian firms are most commonly linked to sweatshop labor through supply chains that operate in the labor markets of developing countries where competition to secure production contracts drives factories to impose long hours, low wages, and dangerous working conditions. The article reviews several forms of regulation that are currently used in Australia to combat sweatshop labor: obligations imposed by common law and statute, self-regulatory initiatives in the private sector, and voluntary multi-stakeholder initiatives involving non-governmental organizations ('NGOs') and international agencies. The author argues that none of these regulatory approaches has more than a marginal effect in encouraging Australian firms to eradicate sweatshop labor conditions in their supply chains. The author proposes that to combat sweatshop labor, firms producing overseas should be divided into two groups. The first group, Australian firms with "egregious" labor conditions in their supply chains, should be subject to sanctions for not taking appropriate measures to eradicate sweatshop conditions in their overseas suppliers. The second group, firms with "poor conditions," should be required to report their efforts to eliminate these conditions in their supply chains. If firms in the second group either do not report or report fraudulently, they should be sanctioned. The article also suggest that a new government agency be formed to work collaboratively with firms, NGOs, and trade unions to develop common strategies, principles, and metrics for establishing uniform reporting and evaluation methods. The article concludes by stressing that these legislative measures would need to be worked out in detail and put into practice in an experimental and revisable way.

Subjects: Australia, Case Studies: Country-Specific, Corporate Accountability, Labor Rights in General (Misc.)
Newsletter: Vol 7, Issue 2
Full-text links: || WESTLAW || LEXIS-NEXIS || WWW || 
Filosa, Gregory, "International Pension Reform: Lessons for the United States", Temple International and Comparative Law Journal v. 19 (2005) p. 133-184

The problems of the US Social Security system -- a pay-as-you-go system sustainable only through 2042 -- are common throughout the world. The author uses international reforms to illuminate US options. Part II outlines the history and problems of the US social security system. Part III explains the World Bank's role in promoting worldwide reform since 1980, and its three-part model that includes (1) a pay-as-you-go defined benefit program; (2) a privatized defined contribution program; and (3) a voluntary savings pillar. Detailed case studies of Chile, Britain, Poland, Kazakhstan and Australia show variations of this model. Parts IV and V discuss US reform proposals and advocate a mandatory, fully-funded, defined contribution pillar in addition to extant minimum-protection and voluntary savings pillars. Chile is the key exemplar. Part VI, an author's note, uncritically describes Bush-Cheney reform proposals.

Subjects: Australia, Case Studies: Country-Specific, Pensions
Newsletter: Vol 5, Issue 8
Full-text links: || WESTLAW || LEXIS-NEXIS || 
Gardiner, Mary, "His Master's Voice - Work Choices as a Return to Master and Servant Concepts", Sydney Law Review v. 31 no1 (March 2009) p. 53-81

According to the author, the supplanted Australian Workplace Amendment Act of 2005 (“Work Choices”) was contradictory for both heralding the freedom of employers and employees to contract without state intervention and placing extensive prescriptions on the content of agreements that employers could enter. The author argues that we can resolve the apparent inconsistency by understanding the state’s regulation of employers as an attempt to amplify employers’ coercive power over labor by limiting the ability of unions to reach agreements favorable to employees. The author suggests that a feudal notion of status, a belief that the master-cum-employer had a natural right to dominate the work relationship, motivated both 19th century master and servant laws and Work Choices, and that both sought to curb a source of employee power on the basis of this antiquated belief. While master and servant laws targeted the employee’s rights to enter and exit the employment contract, a source of power under conditions of labor shortage, Work Choices targeted collective bargaining as the primary contemporary source of employee power. The author suggests that Work Choices’ restrictions on the content of employment agreements reflected the state’s understanding that it must “re-educate” employers in the use of their coercive power, following the 1980s and 90s unraveling of Australia’s 20th century employment relations system of centralized conciliation and arbitration. Work Choices enhanced employer coercion by restricting employee collective action, promoting individualized employment agreements, eliminating the test case function, and prohibiting employers from agreeing to any terms regarding collective bargaining. The author critiques the state’s competitive strategy entailed in labor coercion under Work Choices as incompatible with the development of the cooperative work relations necessary for Australia to compete on the basis of innovation and quality rather than cheap labor in the global economy.

Subjects: Australia, Case Studies: Country-Specific, Employment Law
Newsletter: Vol 10, Issue 8
Full-text links: || WESTLAW || LEXIS-NEXIS || PDF || 
McCallum, Ron, "Conflicts of Laws and Labour Law in the New Economy", Australian Journal of Labour Law v. 16 no1 (May 2003) p. 50-68

This article contends that Australia has become integrated into the new economy; that is, a global economy marked by a growth in the number of corporations doing business and employing workers across State and national borders and by an increase in the geographic mobility of workers. Part II argues that the integration of Australia into the global economy makes it imperative for labor law academics and practitioners to familiarize themselves with the Australian conflicts of laws rules because they have an impact upon the labor law obligations of transnational enterprises. Part III explains how the pertinent conflicts rules interact with other statutory and judge-made laws, both within Australia and beyond. Part IV explores the manner in which the most important of the conflicts rules operate when acts or transactions concerning employment matters bring into play the laws of two or more nations. Throughout the article, the author examines the operation of Australian conflicts of laws rules in employment situations through a survey of recent case law.

Subjects: Australia, Case Studies: Country-Specific, Conflict of Laws
Newsletter: Vol 3, Issue 3
McCallum, Ron, "Plunder Down Under: Transplanting the Anglo-American Labour Law Model to Australia" [GALS Working Paper Series #2-05 -- this paper was delivered as the 19th Annual Benjamin Aaron Lecture, Los Angeles, 11 October 2005]

This paper compares and contrasts the federal approaches to labour law in the three Common Law federations of the United States, Canada and Australia. In the United States, curial interpretations of the Constitution have lead to the Congress having national labour law powers. On the other hand, the legislative divide between the Canadian Government and the Provinces, has meant that it is the Provinces who have control over the vast bulk of labour law in the private sector. Throughout the twentieth century, the jurisdiction over labour law in Australia has been divided between the Australian and State Governments. Presently, the Australian Government is attempting to deregulate Australian federal labour law and to limit Australia’s traditional processes of conciliation and arbitration. Furthermore, the Australian Government is seeking to utilize its constitutional powers to create one deregulated national labour law system for Australia. If successful, this will mean that the five remaining separate State labour law systems will be diminished. If the Australian Government is successful in using its legislative power over corporations to create a national labour law regime, State controls will be minimized. Much will depend on the way the Australian High Court interprets the corporation’s power within the framework of the Australian Constitution.

[Working Paper]
Subjects: Australia, Case Studies: Country-Specific
Newsletter: Vol 5, Issue 3
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McCallum, Ron, "American and Australian Labor Law and Differing Approaches to Employee Choice", ABA Journal of Labor & Employment Law v. 26 no2 (Winter 2011) p. 181-200

This article compares U.S. and Australian collective labor law through the lens of employee choice in order to identify the philosophical and legal differences between the two systems. The author argues that in Australia for most of the twentieth century the individual choices of employees have been subordinated to the collective social needs of the employees in the relevant industry. This is evidenced by Australian’s establishment of a system of compulsory conciliation and arbitration to settle labor disputes. After the extensive labor law deregulation of the last two decades, however, the choices of individual employees have been elevated above that of trade unions. By embedding collective bargaining rights in the individual worker, the role of trade unions has changed from that of acting as disputants in their own right to acting merely as bargaining agents for their members. The author argues that in the United States, by contrast, the preference for individual employee choice enshrined in the New Deal legislation of the 1930s has remained static. Trade unions in the U.S. are obliged to obtain majority support from the relevant employees. The author concludes that while the current Fair Work Act 2009 has enshrined collective bargaining as the centerpiece of labor relations public policy in Australia, the debate over the shape and scope of Labor laws has not yet concluded.

Subjects: Australia, Case Studies: Country-Specific, Comparative Labor Law
Full-text links: || WESTLAW || LEXIS-NEXIS || WWW || 
Mitlacher, Lars W. & Burgess, John, "Temporary Agency Work in Germany and Australia: Contrasting Regulatory Regimes and Policy Changes", International Journal of Comparative Labour Law and Industrial Relations v. 23 no3 (2007) p. 401-431

This paper looks at two nations with very different regulatory schemes related to temporary agency employment: Germany and Australia. Both nations have experienced growth, in the last ten years, of both the number of agency workers and the number of temporary agencies. However, the percentage of Australia’s workforce that is employed by agencies is more than double that of Germany’s. The authors surmise that this difference may be due to a combination of factors. First, while Germany’s temporary workforce is generally low skilled and concentrated in the industrial sector, Australia’s agency workers have a wide range of skills and can be found in all sectors. Second, Germany’s agency employment industry is highly regulated, while Australia has very little regulation in this area. German law requires that companies seeking to hire agency workers obtain a license through the public employment agency. And third, the German temporary help industry is covered by collective agreements with equal pay and length-of-assignment provisions. In contrast, Australia has extremely limited minimum standards for temporary workers, and does not require companies to report on, let alone obtain permission for, the engagement of temporary workers. The authors weigh the costs and benefits of each system and ultimately determine that though temporary agency employment offers flexibility to businesses, that benefit is often outweighed by the cost to the workers, who are engaged in precarious and insecure employment arrangements. The authors recommend that Australia adopt some aspects of the German system, particularly the licensing requirement and collective agreements.

Subjects: Australia, Comparative Labor Law, Flexibilization
Riley, Joellen & Sheldon, Peter, "Symposium on Remaking Industrial Relations in Australia", Economic and Labour Relations Review v. 18 no2 (2008) p. 1-6

In this Symposium, leading experts in Australian labor law present their proposals for labor law reform. Under the Liberal-Nationalist Coalition Government of John Howard, from 1995 - 2007, Australia's century-old labor law regulatory system was dismantled and an extreme deregulatory and antiunion regulatory system was put in place. In November, 2007, the Labour party defeated the Howard government, largely as a result of dissatisfaction with its labor legislation. Riley and Sheldon asked four prominent labor law academics -- Keith Hancock, John Niland, Ron McCallum, and Margeret Gardner -- each of whom had authored a major assessment of labor law reforms in the past, to evaluate the Howard era reforms and advise the new Prime Minister, Kevin Rudd, about what kinds of labor law reforms he should enact. Riley & Sheldon also asked a number of other labor law experts to discuss specific issues of labor law reform, including labor standards (Jill Murray), independent contractors (Andrew Stewart), trade unions (Shae McCrystal), women and work (Marian Baird), unfair dismissal (Murray Wilcox), and others.

Subjects: Australia, Case Studies: Country-Specific, Flexibilization, Labor Mobility
Newsletter: Vol 7, Issue 11