Melbourne Law School - Research Publications
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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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ItemSubmission to the Select Committee on Job Security( 2021)Work is a central human activity, critical to social cohesion and social identity, future economic prospects and the fulfilment of human potential. Yet over successive decades, paid employment has become more precarious and insecure. Insecure work includes fixed-term contracts; seasonal work; marginal part-time, casual and on-call work; labour hire and temporary agency work; and ‘dependent’ or ‘disguised’ self employment. .
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ItemTo What Extent Should Lead Firms be Held Liable for Workplace Contraventions?(Australian National University, 2016)
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ItemThe Evolution of Enforcement under the Fair Work(AIRAANZ, 2019)
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ItemNo Preview AvailableLabour Law Enforcement and COVID-19’(University of Melbourne, 2020)
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ItemNo Preview AvailableCompliance Defiance: Reviewing the Role of Deterrence in Employment Standards Enforcement(The Hebrew University of Jerusalem, 2020)This paper begins by locating the concept of deterrence by first describing orthodox deterrence theory, before considering the extent to which deterrence principles are reflected in some of the most well-known models of employment standards enforcement, including responsive regulation and strategic enforcement. It then examines empirical research which seeks to test the regulatory power and potential of various deterrence-based mechanisms, including criminal prosecution, civil litigation, investigations and administrative sanctions. This paper argues that to better address the problem of compliance defiance, one must move away from the assumption that increasing the severity of the sanction will ‘supercharge’ deterrence in and of itself. Drawing on the preceding analysis, the paper then considers recent developments, and proposed reforms, in Australia to explore paths to possible expansion of the concept of deterrence, and innovative ways in which to shift the relevant compliance calculus.
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ItemNo Preview Available
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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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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.