Melbourne Law School - Theses
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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.