Melbourne Law School - Research Publications
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ItemRegulating Gig Work in Australia: The Role of Competition Regulation and Voluntary Industry Standards(Competition Policy International Inc., 2022-07-20)This article surveys two recent Australian regulatory developments which highlight the critical role of competition law and voluntary industry standards in regulating gig work. In particular, the class exemption for small business collective bargaining that was recently introduced by the federal Australian Competition and Consumer Commission (“ACCC”) presents important opportunities for platform workers to enhance working conditions via collectively bargaining with platform companies. Complementing this development, the state government of Victoria is planning to introduce a set of Fair Conduct and Accountability Standards for the platform economy, which include provisions to encourage platforms to engage collectively with workers. We consider how the introduction of these voluntary industry standards may interact with federal competition laws and reflect on the impact these standards may have for gig workers on the ground.
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ItemA Balancing Act: The Difficulties of Detecting Labour Violations and the Implications for Employer Compliance and Deterrence(LexisNexis Australia, 2023-07-01)The detection of legal violations is a critical element of regulation and is central to delivering deterrence, and yet it has frequently been overlooked in existing scholarship on labour standards enforcement. Combining a summary of the literature on information-gathering and monitoring with a detailed examination of Australia’s main labour inspectorate, the Office of the Fair Work Ombudsman (‘FWO’), we critically analyse the tools and techniques used to identify breaches of wage and hour regulation. Building on literature concerned with the model of ‘strategic enforcement’, we argue that reliance on complaints alone is inadequate. To ensure resources are funnelled towards the most pressing issues, the most concerning employers and the most vulnerable workers, proactive detection methods are essential. Our study of the FWO reveals however, that in shifting away from a complaint-centred model and implementing alternative detection strategies, labour inspectorates may have to overcome a series of practical and political challenges.
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ItemCollective Bargaining in Fissured Work Contexts: An Analysis of Core Challenges and Novel Experiments(Sage journals, 2023)Facilitating access to effective and meaningful collective bargaining is at the heart of the most recent set of reforms to the Fair Work Act 2009 (Cth) (‘FW Act’) enacted in the Fair Work Legislation Amendment (Secure Jobs, Better Pay) 2022 (Act). In the shadow of these reforms, this article explores who can engage in collective bargaining in Australia and under what conditions. While there are a range of issues impeding the effectiveness of the collective bargaining system under the FW Act, this article focuses on the question of bargaining access under both labour and competition laws and reveals some of the formidable challenges facing employed and non-employed workers alike. It examines how the rise in dependent contractors and the disaggregation of firms—through labour hire, subcontracting, franchising and/or digital platforms—has destabilised the binary conception of employment. The decline in formal employment and the growth of the ‘fissured workplace’ have not only perpetuated the problem of ‘wage theft’, they have altered the way in which wages are set in the first place. Moreover, these factors have exposed the tensions that lie between the regulation of mainstream labour markets through worker-orientated labour legislation and the regulation of product markets and business relationships under consumer-orientated competition legislation. The discussion explores the limitations created by the siloing of regulatory approaches to enabling collective bargaining for workers covered by different statutory regimes. We identify that in both labour and competition laws, meaningful access to collective bargaining in fissured work contexts has been frequently stifled by misplaced assumptions about the nature of the regulatory target and the power distribution in business networks. The article contends that a regulatory response to fissuring (or the problem of ‘the networked firm’) would straddle the labour/competition law divide in various ways, to ensure fissured workers are no longer excluded from exercising collective power by both legal domains.
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ItemUnfair Dismissal in Franchise Networks: A Regulatory Blind Spot?(Sydney Law School, 2022)The unfair dismissal provisions of the Fair Work Act 2009 (Cth) provide a critical safeguard against arbitrary termination of employment. While the federal unfair dismissal regime has been in place for more than three decades, there has been little consideration of how these protections apply in the context of franchise networks. Franchises defy easy legal classification given that they blur entrenched distinctions between responsibility and control, markets and hierarchies, and small and large business. Our analysis of the case law in this domain reveals that many franchise workers are left without proper protection from unfair dismissal. We argue that these regulatory blind spots cannot be readily justified or sustained. In conclusion, we advance some possible paths to reform, which seek to take a more nuanced approach to the hybrid features of, and unique regulatory challenges presented by, franchise networks.
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ItemCriminal Liability for "Wage Theft": A Regulatory Panacea?(Monash University, 2021)In response to concerns over the growing problem of ‘wage theft’, the federal government, as well as various state governments, have committed to introducing criminal sanctions for underpayment contraventions. While policymakers and the public have largely assumed that criminal sanctions will address a perceived deterrence gap and promote employer compliance with basic employment standards, there has been far less scholarly appraisal of how this regulatory shift might shape enforcement decisions and affect compliance outcomes. Drawing on literature from criminology, as well as regulation and governance, this article evaluates a range of conceptual justifications put forward in support of criminalising certain forms of wage theft. It also considers key practical issues which may arise in a dual track system where both criminal and civil sanctions are available for the same or similar contraventions. This article concludes with some suggestions on how criminal offences might be framed in the federal system so as to optimise employer compliance and reduce regulatory tensions.
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ItemThe (Omni)bus that Broke Down: Changes to Casual Employment and the Remnants of the Coalition’s Industrial Relations Agenda(LexisNexis Australia, 2021)The Morrison Government saw the COVID-19 crisis as an opportunity to reset the debate over Australia’s industrial relations system. Its ‘Omnibus Bill’ was the product of an unusually constructive process of dialogue with the labour movement. Yet the reforms it proposed to the Fair Work regime largely reflected both its own and employer groups’ previous concerns. Having abandoned tripartism, it encountered familiar resistance in the Senate. After a chaotic debate, the version which passed as the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021 (Cth) dealt only with the topic of casual employment. We examine the changes made on this important issue, which have replaced one set of problems with another. We also outline the proposals (including on award flexibilities, enterprise agreements, and compliance and enforcement) jettisoned by the government from the original Bill, some of which could easily have been enacted. We assess where all this leaves the Liberal/National Coalition’s reform agenda and lament what we see as a missed opportunity to address pressing problems in the labour market.
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ItemFilling the Void? A Critical Analysis of Competition Regulation of Collective Bargaining Amongst Non-employees(KLUWER LAW INT, 2021-12)The rise of the gig economy, and the expansion of self-employment more generally, have magnified pre-existing concerns about how to address the risk of exploitation of non-employees, including franchisees, freelance journalists and owner-driver transport workers, amongst others. In a bid to fill relevant regulatory gaps, and correct destructive power imbalances, many are turning their attention to the power and potential of collective bargaining.
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ItemThe importance of competition and consumer law in regulating gig work and beyond(SAGE PUBLICATIONS INC, 2022-11-01)Much ink has been spilt on why gig workers should be brought into the protective fold of mainstream employment law. Much less time has been spent considering the advantages and disadvantages of regulating gig work through alternative regulatory frameworks, such as via competition and consumer laws. In part, this is because we generally understand this jurisdiction to be inherently anti-collective. However, significant changes within competition and consumer regulation in Australia challenge our pre-existing assumptions about the potential role and utility of this jurisdiction for protecting the rights of the self-employed, including gig workers. The High Court decision in Workpac v Rossato, emphasising contractual formalism, also impels some reconsideration of the utility of commercial law solutions given that there is unlikely to be any expansion of labour law protections any time soon. In this short paper, we summarise two key developments in this space. First, we discuss the provisions relating to unfair contract terms under the Australian Consumer Law, which are about to be substantially enhanced. Second, we explore a class exemption introduced by the Australian Competition and Consumer Commission, which effectively permits collective bargaining by small businesses, including those engaged in platform work. This article will critically examine each of these developments and weigh up their potential in addressing some of the most pressing issues facing non-employed workers in the gig economy and beyond. Keywords
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ItemDigging Into Deterrence: An Examination of Deterrence-Based Theories and Evidence in Employment Standards Enforcement(Kluwer Law International, 2021-06-01)In a bid to curb employer non-compliance with wage and hour regulation, policy-makers across many different jurisdictions are seeking to deliver greater doses of deterrence. This trend stems from a series of common assumptions. In particular, it is often assumed that introducing stiffer sanctions, such as criminal penalties for wage theft, will automatically amplify the relevant deterrence effects. This article seeks to unpack these assumptions to better understand: a) how deterrence is conceptualized and understood in the context of wage underpayment; and b) which tools or approaches are likely to be most powerful in enhancing deterrence and promoting compliance. Drawing on recent developments in Australia, the article argues that alternatives to enforcement litigation – such as voluntary agreements or undertakings – may hold critical, albeit under-appreciated, deterrence value. This analysis also reveals that the perceived risk of detection, the speediness of the relevant sanction and the publicity it ultimately generates may all serve to heighten deterrence in ways that encourage and entrench employer compliance with wage and hour laws.
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ItemEmerging Business Models and the Evolving Regulatory Response: Perspectives from Australia and Beyond(LexisNexis Australia, 2019)This Special Issue contains a selection of articles presented at a workshop, ‘Emerging Business Models and the Evolving Regulatory Response: Perspectives from Australia and Beyond’. This workshop brought together a group of scholars, policymakers and graduate students actively working on, or otherwise interested in, the broad themes of labour and employment regulation and enforcement. The workshop was held in July 2018, with the generous support of the Centre for Employment and Labour Relations Law at the University of Melbourne.