Melbourne Law School - Theses
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ItemThe dynamics of legal transplantation: regulating industrial conflicts in post-Đổi mới Vietnam( 2016)The economic reforms (Đổi mới) initiated from the late 1980s in Vietnam led to the introduction of a new regulatory framework for industrial conflicts, which was built extensively on transplanted legal concepts. This thesis investigates how state actors borrowed, interpreted, adapted and implemented these concepts and the factors that impacted these processes. This investigation adopts systems theory as the general theoretical framework and discourse analysis as a methodological tool. This thesis finds that despite its extensive reliance on imported legal concepts, the regulatory framework for industrial conflicts in post-Đổi mới Vietnam was a unique system, with mixed features of socialist, capitalist and international labour laws. Further, state actors regularly retranslated and disregarded capitalist and international legal concepts and their underlying ideas while remaining substantially loyal to Marxist-Leninist notions and traditional perspectives. This resulted in the marginalisation of legal mechanisms, which were transplanted from capitalist and international labour laws, and the emergence of alternative mechanisms, which essentially replicated Marxist-Leninist and traditional regulatory means and principles. Notwithstanding this, there was limited but growing reception of legal transplants from capitalist market economies and international labour laws. Moreover, the thesis shows that several factors shaped the borrowing, adaptation, reception and marginalisation of foreign legal concepts. The most important factors include the continual but eroding impact of Marxist-Leninist political and economic ideas, the emergence of new modes of political and economic thought, the persistence, decentralisation and liberalisation of the Leninist political system after Đổi mới, and changes in economic policy and practice following this transition. Other influential factors include the frequent emphasis on moral values and perspectives, pre-Đổi mới and newly emerged legal ideas and principles, dialogical contestation between the actors involved, and their technical knowledge and communicative strategies.
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ItemTransplanting social partnership: can Australia borrow from European law to improve employee participation rights in business restructuring?( 2005)This thesis examines a deficiency in Australian law - the limited legal rights of employees to information, consultation and negotiation over business restructuring issues. This problem has been highlighted by many recent instances of company collapses and restructuring, in which thousands of workers have lost their jobs with little warning or opportunity for involvement in major decisions affecting them. This deficiency is explored through a detailed historical survey of the Australian legal position, which shows that mechanisms for worker participation have not featured prominently in Australia. Experimentation with industrial democracy and related concepts increased from the early 1970s, especially under the federal Labor government between 1983 and 1996. Overall, however, factors including the traditionally adversarial nature of Australian industrial relations; the limits on award regulation imposed by the 'managerial prerogatives' doctrine; and the attitudes of unions, employers and members of industrial tribunals, inhibited the widespread development of cooperative processes for resolving workplace issues generally and, specifically, restructuring issues. In response to this deficiency, the thesis poses and answers two main questions. First, it considers whether the laws of Germany, the European Community and the United Kingdom provide a stronger basis for employee influence in business restructuring situations. The thesis finds that: • under German law, employees are entitled to information, consultation and negotiation about a broad range of employer reorganisation initiatives, through the comprehensive statutory framework for the operation of works councils; • EC and UK laws provide workers with information and consultation rights over collective redundancies and business transfers, and the capacity to address these and other restructuring proposals through European Works Councils and national-level information and consultation bodies; • the German, EC and UK laws enable workers to exercise varying degrees of influence over restructuring decisions, including delaying, altering the outcome of, or obstructing management proposals, or ameliorating their adverse effects on workers. The thesis concludes that the EC, UK and (especially) German laws constitute desirable models for law reform in Australia. Secondly, the thesis explores whether the overseas laws can be adopted in Australia, drawing upon the 'legal transplantation' debate in comparative law and comparative labour law literature. It adopts Teubner's theory of the connection between law and other social systems as a basis for analysing the major factors affecting the transplantability of the German, EC or UK laws. The thesis finds that: • major differences in industrial relations and economic systems - primarily the Anglo-Australian tradition of adversarial industrial relations and 'single channel' employee representation, and shareholder-centred corporate governance arrangements, compared with the German/EC 'social partnership' and 'stakeholder' approaches - create significant impediments to Australian adoption of the overseas laws; • the prospects for transplantation are enhanced by certain similarities in the respective industrial relations systems; past Australian 'borrowing' from overseas labour law; the UK's importation of the EC directives into a vastly different labour relations environment; and the breakdown of the Australian union movement's traditional resistance to European-style workplace consultation structures; • overall, there is considerable potential for importing the concepts and institutions of European social partnership into the Australian industrial relations system. The thesis concludes that Australia can borrow from German, EC or UK law to improve the participation rights of Australian workers in business restructuring decisions.
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ItemA changing of the guard: a critique of the federal enforcement agency since work choices( 2009)“In the past year, we moved from being a traditional time and wages inspectorate, and repositioned Workplace Inspectors as fearless, independent, effective protectors of workplace rights, not afraid to use the full range of powers available to them, including using the courts for penalties or deterrence.”1 Soon after the Howard Government announced its industrial relations policy in 2005, concerns were raised that the ‘deregulation’2 of workplace relations brought about by the Workplace Relations Amendment (Work Choices) Act 2005 (Cth) (Work Choices)3 would lead to exploitation of employees.4 In an attempt to silence the unions and reassure the public in respect of the new laws, the federal government raised the profile of the federal enforcement agency. Amongst other things, it changed the agency’s institutional structure, boosted its funding and strengthened its prosecution policy. The then Minister for Employment and Workplace Relations commented at the time that the revitalized inspectorate establishers ‘the most significant industrial compliance and enforcement regime ever introduced by an Australian government’.5 In addition to the changed emphasis on enforcement, as a result of Work Choices, State regulatory enforcement bodies were sidelined, and the powers of the Australian Industrial Relations commission (AIRC) significantly curbed.6 There was also a further fall in unionization.7 Together, this has meant that, in practice, the federal inspectorate is now the main enforcement body for a significant majority of employers and employees in all States and Territories. While State enforcement agencies are still in operation and the State industrial tribunals continue to largely have the same powers to conciliate and arbitrate, at least 75% of the workforce now fall within the federal system of regulation.8 At the same time, the range of investigation and prosecution responsibilities significantly broadened under Work Choices. The inspectorate was no longer solely concerned with the enforcement of minimum labour standards. Rather, it was charged with the responsibility of ensuring that the burgeoning regime of civil remedy provisions under the Workplace Relations Act 1996 (Cth) (WR Act), the Workplace Relations Regulations 2006 (Cth) (WR Regulations) and the Independent Contractors Act 2006 (Cth), were complied with and enforced. While the Pre-Reform Act had some civil penalty provisions, their number substantially increased under Work Choices, in no small part due to the prescriptive and complex amendments brought about by Work Choices. The increased funding and subsequent rise in prosecutions, combined with the heated debate surrounding Work Choices, a wave of advertising, 9 and the controversial ‘use of the federal enforcement agency to “fire fight” media reports of exploitation’,10 also raised the profile of the federal inspectorate in the post-Work Choices period. In comparison, the ‘traditional time and wages inspectorate’, as it is described by the Workplace Ombudsman in the opening quote to this thesis, was largely perceived as being ineffective and maintained a relatively low profile. In the earlier years of operation, resources were so scarce and penalties so low that investigation and prosecution of miscreant employers was perceived as having little deterrent effect. While legislative deficiencies were slowly rectified and penalties significantly increased, the weak persuasive compliance approach – which dominated enforcement strategies in the pre-Work Choices era – was seen to implicitly condone employer non-compliance.11 It is clear from this summary that the role of the federal enforcement agency has changed since Work Choices. It is not entirely apparent, however, whether inspectors have been positively ‘repositioned’ to the extent suggested by the Workplace Ombudsman in the opening quote – this thesis will explore this question in the context of the shifting legislative and political landscape since Work Choices. (From Introduction)