Cooney, Sean; Howe, John; Murray, Jill --- "Time and Money under WorkChoices: Understanding the new Workplace Relations Act as a Scheme of Regulation" [2006] UNSWLawJl 12; (2006) 29(1) UNSW Law Journal 215
[*] Law School, University of Melbourne.
[**] Law School, University of Melbourne.
[***] Law School, Latrobe University.
[1] This Act amends the Workplace Relations Act 1996 (Cth) (‘WRA’).
[2] ‘Regulation’ has a variety of meanings: Julia Black, ‘Decentring Regulation: Understanding the Role of Regulation and Self-Regulation in a ‘Post-Regulatory World’’ (2001) 54 Current Legal Problems 103, 128-142. In this paper, we generally use the term to refer to state-based law, including law produced by the courts and by legislatures.
[3] On the propensity for law to fail in these ways, see Christine Parker et al (eds), Regulating Law (2004) 10.
[4] See generally Joellen Riley, Employee Protection at Common Law (2005).
[5] And indeed such regulation predates the application to work relationships of modern private law doctrines: Richard Johnstone and Richard Mitchell, ‘Regulating Work’ in Parker et al, above n 3, 101, 103-108.
[6] Andrew Stewart, ‘Redefining Employment? Meeting the Challenge of Contract and Agency Labour’ (2002) 15 Australian Journal of Labour Law 235.
[7] This is not to suggest that work performed outside the employment relationship should not be acknowledged in a discourse on workplace rights. For example, volunteer workers who attend a workplace should receive full health and safety protection, and should be protected against unlawful discrimination.
[8] The Australian Bureau of Statistics reported in August 2005 that there were 8 526 000 Australians in an employment relation: Australian Bureau of Statistics, Employee Earnings, Benefits and Trade Union Membership (6310.0) (2006) Australian Labour Market Statistics <http://www.abs.gov.au/AUSSTATS/abs@.nsf/ProductsbyReleaseDate/99E5614783415356CA25713E000F92B1?OpenDocument> at 3 November 2005. The Bureau reported in April 2006 that there were 10,041,000 Australians in paid work: Australian Bureau of Statistics, Australian Labour Market Statistics (6105.0) (2006) <http://www.abs.gov.au/AUSSTATS/abs@.nsf/ProductsbyCatalogue/E699A367D4B29EADCA256D16007DA2D8?OpenDocument> at 5 April 2006.
[9] Job creation now forms the most significant rationale for minimum wage fixing under the Australian Fair Pay Commission. The Chairman recently said that ‘[a] key focus of the Fair Pay Commission’s work will be to ensure that minimum wages in Australia, as far as is practicable and over time, do not impede unemployed people from gaining employment and do not induce employers to shed low-paid workers.’: Ian Harper, ‘Ensuring Fair Pay: the First Steps’ (Press Release, 16 February 2006). See also WRA ss 21, 23.
[10] Guy Standing, Global Labour Flexibility: Seeking Distributive Justice (1999).
[11] Ibid 3–4.
[12] Ibid 9. Standing notes that in the 1 9th century, to be ‘in employment’ was ‘a term if not of abuse, at least regret’. See also Anthony O’Donnell, ‘Reinventing Unemployment: Welfare Reform as Labour Market Regulation’ in Chris Arup et al (eds), Labour Law and Labour Market Regulation: Essays on the Construction and Regulation of Labour Markets and Work Relationships (forthcoming).
[13] Standing, above n 10, 394.
[14] See, eg, Jill Murray, ‘The Legal Regulation of Volunteer Work’ in Chris Arup et al, above n 12.
[15] Simon Deakin and Frank Wilkinson, The Law of the Labour Market: Industrialization, Employment and Legal Evolution (2005) 284. On this analysis, the living conditions of those not in paid employment should be supported by the state, and their capacity to participate in the labour market must be developed by state action in relation to education, housing, transport and so on.
[16] International Labour Organisation, Decent work – the heart of social progress (2004) <http://www.ilo.org/public/english/decent.htm> at 17 April 2006. See also Rosemary Owens, ‘Decent Work for the Contingent Workforce in the New Economy’ (2002) 15 Australian Journal of Labour Law 1, 7-12.
[17] Hugh Collins, Justice in Dismissal: the Law of Termination of Employment (1992) 16.
[18] Ibid 18. See also Hugh Collins, ‘Justifications and Techniques of Legal Regulation of the Employment Relation’ in Hugh Collins, Paul Davies and Roger Rideout, Legal Regulation of the Employment Relation (2000) 3.
[19] The following discussion refers to individual employment contracts. Collective private ordering is an important form of regulation, but it is frequently found not to have legal effect: see below n 56.
[20] Riley, above n 4, 40-49.
[21] Hugh Collins, ‘Market Power, Bureaucratic Power and the Contract of Employment’ (1986) 15 Industrial Law Journal 1.
[22] Mahmud v Bank of Credit and Commerce International SA [1997] UKHL 23; [1998] AC 20; Eastwood v Magnox Electric plc [2004] UKHL 35.
[23] Johnstone v Bloomsbury Health Authority [1992] 1 QB 333 (Browne-Wilkinson and Stuart-Smith LJJ).
[24] Although there has been some qualified support by a number of Australian judges: Burazin v Blacktown City Guardian Pty Ltd [1996] IRCA 371; (1996) 142 ALR 144; Thomson v Orica Australia Pty Ltd [2002] FCA 939; (2002) 116 IR 186; Heptonstall v Gaskin (No 2) [2005] NSWSC 30. Also, analogous employer obligations may sometimes be able to be derived from Australian tort law: State of NSW v Seedsman [2000] NSWCA 119.
[25] See, eg, Mayer v Australian Nuclear Science and Technology Organisation [2003] FMCA 209.
[26] See, eg, State of Victoria v Schou (No 2) [2004] VSCA 71; (2004) 8 VR 120; Song v Ainsworth Game Technology [2002] FMCA 31. For discussion, see Jill Murray, ‘Work and Care: New Legal Mechanisms for Adaptation’ (2005) 15 Labour and Industry 67-71.
[27] Riley, above n 4, 43-45.
[28] See, eg, Sidney Webb and Beatrice Webb, Industrial Democracy (1897).
[29] Simon Deakin and Frank Wilkinson, ‘Rights vs Efficiency? The Economic Case for Transnational Labour Standards’ (1994) 23 Industrial Law Journal 289, 291.
[30] Lucy v Commonwealth [1923] HCA 32; (1923) 33 CLR 229, 237; Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 428.
[31] Similar controversy exists around termination of employment.
[32] Deirdre McCann, Working Time Laws: A Global Perspective (2005) 1.
[33] Colin Scott, ‘Analysing Regulatory Space: Fragmented Resources and Institutional Design’ (2001) (Summer) Public Law 329.
[34] John Howe, ‘“Deregulation” of Labour Relations in Australia: Towards a More “Centred” Command and Control Model’ in Chris Arup et al, above n 12.
[35] For further discussion of ‘command and control’ regulation, see Robert Baldwin, ‘Regulation after ‘Command and Control’’ in Keith Hawkins (ed), The Human Face of Law: Essays in Honour of Donald Harris (1997) 65.
[36] These problems are discussed extensively in Eugene Bardach and Robert Kagan, Going by the Book: The Problem of Regulatory Unreasonableness (1982).
[37] See, eg, Neil Gunningham and Peter Grabosky, Smart Regulation: Designing Environmental Policy (1998) 50-56.
[38] The major source for this conception of regulation is Ian Ayres and John Braithwaite, Responsive Regulation: Transcending the Deregulation Debate (1992). For a discussion in the employment context, see Cynthia Estlund, ‘Rebuilding the Law of the Workplace in an Era of Self-regulation’ (2005) 105(2) Columbia Law Review 319, 356-3 66.
[39] Ayres and Braithwaite, above n 38, 54-100.
[40] Ibid 101-132.
[41] The internationalisation of compliance is discussed comprehensively in Christine Parker, The Open Corporation: Efective Self-regulation and Democracy (2002).
[42] Clarence Wilfred Jenks, Social Justice in the Law of Nations: the ILO ’s Impact after Fifty Years (1970) 76.
[43] See, eg, Keith Ewing (ed), Working Life: A New Perspectives on Labour Law (1996) 21. Ewing proposes five underpinning principles for labour law: equality of opportunity, social justice, workplace democracy, protection of civil liberties, fairness and work.
[44] Scott, above n 33, 331.
[45] Howe, above n 34, 7.
[46] For a comprehensive account of the system in place prior to the WorkChoices amendments, see Breen Creighton and Andrew Stewart, Labour Law (4th ed, 2005).
[47] States systems were also significant, but are being overridden by WorkChoices: WRA sch 8.
[48] See, eg, Attorn ey-General for the State of Queensland v Riordan (1997) 192 CLR 1 (Kirby J).
[49] Jill Murray, ‘The AIRC’s Test Case on Work and Family Provisions: The End of Dynamic Regulatory Change at the Federal Level?’ (2005) 18 Australian Journal of Labour Law 325.
[50] Laura Bennett, Making Labour Law in Australia: Industrial Relations, Politics and Law (1994) 131-143.
[51] Creighton and Stewart, above n 46, 153-156.
[52] Byrne v Australian Airlines Ltd (1995) 185 CLR 410.
[53] Ryan v Textile Clothing & Footwear Union Australia [1996] VicRp 67; (1996) 130 FLR 313.
[54] WRA (as in force prior to 27th March 2006) s 89A.
[55] WRA (as in force prior to 27th March 2006) s 170XA prohibited the certification of agreements which disadvantaged employees ‘in relation to their terms and conditions of employment.’ Section 1 70XA(2) stated that ‘disadvantage’ occurred where the agreement would result, on balance, in a reduction in the overall terms and conditions of employment’ of the worker.
[56] Richard Mitchell et al, ‘What’s Going on with the “No Disadvantage Test”? An Analysis of Outcomes and Processes under the Workplace Relations Act 1996 (Cth)’ (2005) 47(4) Journal of Industrial Relations 393.
[57] The following section draws on work originally from Murray, above n 49, 325.
[58] Marion Baird, ‘Parental Leave in Australia: The Role of the Industrial Relations System’ (2005) 23 Law in Context 45.
[60] Carer’s leave and parental leave are not longer ‘allowable award matters’: Compare WRA (prior to 27th March 2006) s 89A(2)(g) and (h) with the current WRA s 513.
[61] See generally information about the proceedings: Australian Industrial Relations Commission, Family Provisions Case (2005) <http://www.e-airc.gov.au/familyprovisions/> .
[62] Howe, above n 34.
[63] See Higher Education Legislation Amendment (Workplace Relations Requirements) Act 2005 (Cth).
[64] See conditions of employment offered at Department of Employment and Workplace Relations: DEWR, Salary and Benefits (2006) <http://www.dewr.gov.au/dewr/WorkingInDEWR/AboutWorkingInDEWR/Salaryandbenefits.htm> .
[71] WRA s 172(2).
[72] WRA s 173.
[73] An additional default entitlement is to meal breaks (WRA pt 12 div 1). These can be displaced by awards or workplace agreements.
[75] WRA s 513.
[76] WRA pt 10 div 5. In most cases, a substantive variation of an award will be permissible only if it is essential to maintain a minimum safety net of standards: s 553.
[77] WRA ss 513(1)(a), (c), (f), (g), (i), (j).
[78] WRA ss 349, 399(3)(b).
[79] WRA ss 354, 399(3)(b).
[82] WRA s 719. Damages are recoverable in the case of AWAs.
[83] The default dispute resolution clause for workplace agreement contains no such mechanism: WRA s 353, pt 13.
[84] Senate Employment, Workplace Relations and Education Committee, Senate, Provisions of the Workplace Relations Amendment (Work Choices) Bill 2005 (2005) [1.1-3.88]. One week was allowed for public hearings.
[85] See WRA s 400(6).
[86] WRA ss 348(2), 349.
[87] Joel Fetter and Richard Mitchell, ‘The Legal Complexity of Workplace Regulation and Its Impact upon Functional Flexibility in Australian Workplaces’ (2004) 17(3) Australian Journal of Labour Law 276.
[88] Other than measures that might be taken (but are not required to be taken) by the Employment Advocate. However, unlike the AIRC, the Employment Advocate is not set up to provide for public deliberative processes.
[89] WRA pt 8 div 5.
[90] See, eg, Occupational Health and Safety Act 2000 (NSW).
[93] WRA s 226(3) deals with the situation where an employee agrees to an averaging period, but starts work during the time when the averaging period is already running at that firm. In such a case, ‘that averaging period is taken … not to include the period before the employee started to work for the employer’.
[94] This is defined in WRA s 226(4).
[95] Research into the content of AWAs supports this conclusion: see the submissions to the Senate inquiry into workplace agreements, the large majority of which were critical of AWAs: Senate Employment, Workplace Relations and Education Committee, Senate, Workplace Agreements (2005) <http://www.aph.gov.au/Senate/committee/eet_ctte/indust_agreements/submissions/sublist.htm> . The majority report itself was also highly critical of AWAs. The report was prepared by Senators from the Australian Labour Party and the Australian Democrats (the Committee was constituted prior to the Coalition taking control of the Senate).
[96] Workplace Relations Act 1996 (Cth) s 613.
[97] These are being reviewed by the Award Review Taskforce and are likely to be greatly reduced, possibly to a template of four levels (or some argue for one) for all industries.
[99] This can be contrasted with the criteria which the AIRC was required to have regard to under the WRA prior to WorkChoices. Section 88B of that legislation identified ‘the need to provide fair minimum standards’.
[100] WRA s 177. The ART, however, is not created by statute. It identifies itself as part of the executive branch of government: see ART, Terms of Reference (2005) <www.awardreviewtaskforce.gov.au>.
[101] See National Minimum Wage Act 1998 (UK) c 39, s 7, sch 1. The Blair Government in the UK consulted with both the Trades Union Congress and the Council of British Industry, Britain’s peak trade union and employer bodies respectively, in the appointment of commissioners. The nine commissioners forming the LPC are balanced between three people with a trade union background, three people with an employer background and three academic labour relations specialists: William Brown, ‘The Operation of the Low Pay Commission’ (2002) 24(6) Employee Relations 595.
[102] WRA s 38.
[103] WRA s 22.
[104] WRA s 24.
[105] See above n 9.
[106] See Australian Industrial Relations Commission, Safety Net Review – Wages (May 2003), PR002003; Kenneth Davidson, ‘Limited resources for low-wage earners as commission rides a tough timetable’, The Age (Melbourne), 21 February 2006, 1.
[107] In making these comments we must acknowledge that it is possible that the AFPC will evolve as an institution in ways that are not contemplated or provided for by WorkChoices. After all, the AIRC award-making and ‘test case’ process itself evolved over time without specific legislative authority or direction. Moreover, it is possible that the AFPC may come to accept that the maintaining job quality through the wage classification system can contribute to the attainment of economic prosperity.
[108] For example, the ‘tapestry’ acknowledged and rewarded differences in skill and educational levels on an industry specific balance – differences which would not necessarily be rewarded in an individual bargaining process.
[109] See, eg, The Centre for Employment and Labour Relations Law, Submission to the Senate Employment, Workplace Relations and Education Committee Inquiry into the Workplace Relations Amendment (WorkChoices) Bill 2005 (2005) <http://www.law.unimelb.edu.au/celrl/activities/reports.html> .
[110] Murray, above n 49, 325.