Melbourne Law School - Research Publications

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    Regulating Gig Work in Australia: The Role of Competition Regulation and Voluntary Industry Standards
    Hardy, T ; Forsyth, A ; McCrystal, S (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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    A Balancing Act: The Difficulties of Detecting Labour Violations and the Implications for Employer Compliance and Deterrence
    Hardy, T ; Cooney, S ; Howe, J (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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    Collective Bargaining in Fissured Work Contexts: An Analysis of Core Challenges and Novel Experiments
    Forsyth, A ; Hardy, T ; McCrystal, S (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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    Unfair Dismissal in Franchise Networks: A Regulatory Blind Spot?
    Hardy, T ; Kelly, C (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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    Criminal Liability for "Wage Theft": A Regulatory Panacea?
    Hardy, T ; Howe, J ; Kennedy, M (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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    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)