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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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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ItemBargaining in a Vacuum? An Examination of the Proposed Class Exemption for Collective Bargaining for Small Businesses(Sydney Law School, 2020)The Australian Competition and Consumer Commission (‘ACCC’) is on the cusp of introducing a class exemption for collective bargaining for small businesses. This development is not just novel in the context of Australian competition law, it is important in terms of addressing entrenched imbalances of bargaining power in business-to-business transactions. By surveying the recent legislative history relating to collective bargaining in the commercial context, we show that the class exemption fills critical gaps in the ACCC’s existing authorisation and notification processes. The article outlines key features of the proposed class exemption. Drawing on labour and industrial relations theories, the article then critically examines the class exemption through a series of dimensions, including the status, agent, level, scope and coverage of bargaining. This analysis reveals that the failure to formalise the bargaining processes and outcomes, the emphasis on voluntarism and the absence of any right to take collective boycotts, will not only lead to uncertainty, it will ultimately limit the overall effectiveness of collective bargaining in this forum.
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ItemTrivial to Troubling: The Evolution of Enforcement under the Fair Work Act(Melbourne Law School, University of Melbourne, 2020)When the Fair Work Act 2009 (Cth) was first introduced, compliance issues were viewed as somewhat trifling and the enforcement framework generated very little discussion, let alone debate. Early reviews of the Office of the Fair Work Ombudsman (FWO) generally reached positive conclusions about the level of employer non-compliance and the FWO’s overall response. However, the tide turned in 2015 following the 7-Eleven underpayment scandal. Since this time, there has been, and continues to be, a sense that there is now an enforcement crisis. While the Fair Work Amendment (Protecting Vulnerable Workers) Act 2017 (Cth) introduced a number of far-reaching reforms, many believe more needs to be done. This article charts some of the most critical forces which have shaped compliance promotion and enforcement processes over the past 10 years and reflects on how this response may continue to evolve into the future.
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ItemWorking for the Brand: The Regulation of Employment in Franchise Systems in Australia(Thomson Reuters, 2020)In the past five years or so, there has been a never-ending stream of investigations and inquiries into so-called “wage theft” in franchise systems in Australia. This article seeks to go beyond these public accounts by considering key legislative provisions and recent case law that directly relates to the quality of franchise work and the regulatory behaviour of both franchisees and franchisors. In particular, the article considers three critical issues in this context: the legal classification of franchisees under the Fair Work Act 2009 (Cth), including their possible employment status; the application of collective bargaining arrangements to franchise networks; and the ascription of liability for contravention of the civil remedy provisions of the Act, including 2017 reforms expressly directed at franchise relationships. This analysis reveals that while the regulation of work and employment in franchise networks has attracted much attention, it remains uncertain in many key respects and continues to be in a state of flux.