Melbourne Law School - Research Publications
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ItemProtection of Employees in a Transmission of Business: What is Left in the Wake of Work Choices and Subsequent Statutory Amendments(Centre for Employment and Labour Relations Law, 2007)Regulation of the employment relationship in the context of a transmission of business has undergone substantial revision as a result of the Workplace Relations Amendment (WorkChoices) Act 2005 (Cth), and more recently, the Workplace Relations Amendment (A Stronger Safety Net) Act 2007 (Cth). The first part of this paper reviews the statutory treatment of transmission of business in the past and considers the traditional justification for regulatory intervention in this area. The focus then turns to a detailed examination of the new statutory provisions and analyses the possible impetus for the changes, as well as identifying potential shortcomings. Finally, it looks at recent amendments relating to the application of duress in connection with Australian Workplace Agreements. It is argued that, despite the growing body of case law in this area, statutory intervention was necessary in order to ensure that, in a transmission of business, the obligations of employers were clearly prescribed and the market position of employees was properly protected.
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ItemLeft Out in the Cold: Homelessness and Anti-Discrimination Law(Council of Homeless Persons, 2005)Anti-discrimination legislation has long been accepted as an integral part of Australian law and culture. However, the current legal framework at both Commonwealth and State levels fails to adequately protect people who are homeless, unemployed or in receipt of social security benefits. (1) This omission in the law masks the fact that discrimination against these groups is deeply ingrained and currently lawful. Not only does this seem to indicate a lack of awareness on the part of the legislature, it also seems to demonstrate ignorance of the fact that homeless people, although impoverished, possess basic human rights.
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ItemA Changing of the Guard: Enforcement of Workplace Relations Laws Since Work Choices and Beyond(The Federation Press, 2009)
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ItemPartners in Enforcement? The New Balance between Government and Trade Union Enforcement of Employment Standards in Australia(LexisNexis Butterworths, 2009)Historically, Australian trade unions played a significant role in the monitoring and enforcement of minimum employment standards, an important aspect of unions’ regulatory function under the conciliation and arbitration system. In contrast, federal government enforcement was historically under-resourced, a situation that was sometimes justified on the ground that unions and the government inspectorate were ‘partners in enforcement’. Under the Howard Coalition Government, legal support for trade unions’ enforcement functions was significantly undermined, while Work Choices heralded an unprecedented emphasis on federal government enforcement. The Fair Work Act 2009 (Cth) maintains this emphasis on government enforcement, to be undertaken by the Fair Work Ombudsman, and restores some of the protections for trade unions lost during the Howard years. However, the new emphasis on good faith enterprise bargaining and the continuation of restrictions on right of entry suggest that unions may become the junior partner in the new enforcement regime, making a more tripartite and collaborative approach to enforcement less viable.