Melbourne Law School - Research Publications

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    Submission to the Select Committee on Job Security
    McDonald, P ; Marston, G ; Hardy, T ; Charlesworth, S ; Mayes, R ; Williams, P ( 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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    Labour Law Enforcement and COVID-19’
    Hardy, T ; Amendola, S ; Tran, O (University of Melbourne, 2020)
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    Compliance Defiance: Reviewing the Role of Deterrence in Employment Standards Enforcement
    Hardy, T (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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    The (Omni)bus that Broke Down: Changes to Casual Employment and the Remnants of the Coalition’s Industrial Relations Agenda
    Hardy, T ; Stewart, A ; McCrystal, S ; Munton, JR ; Orifici, A (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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    Filling the Void? A Critical Analysis of Competition Regulation of Collective Bargaining Amongst Non-employees
    Mccrystal, S ; Hardy, T (KLUWER LAW INT, 2021-12-01)
    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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    The importance of competition and consumer law in regulating gig work and beyond
    Hardy, T ; McCrystal, S (SAGE PUBLICATIONS INC, 2022-01-21)
    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.
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    Digging Into Deterrence: An Examination of Deterrence-Based Theories and Evidence in Employment Standards Enforcement
    Hardy, T (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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    Unlawful Underpayment of Employees’ Remuneration: Submission
    Hardy, T (The Centre for Employment and Labour Relations Law, Melbourne Law School, 2020)
    Submission to the Senate Economics Committee Inquiry into Unlawful Underpayment of Employees’ Remuneration
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    Submission to the Senate Education and Employment Legislation Committee Inquiry into the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Bill 2020
    Stewart, A ; McCrystal, S ; Riley Munton, J ; Hardy, T ; Orifici, A ( 2021)
    Submission to the Senate Education and Employment Legislation Committee Inquiry into the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Bill 2020