John, Howe; Landau, Ingrid --- "Light Touch' Labour Regulation by State Governments in Australia" [2007] MelbULawRw 16; (2007) 31(2) Melbourne University Law Review 367
[∗] BA, LLB (Monash), LLM (Temple), PhD (Melb); Senior Lecturer, Faculty of Law, The University of Melbourne; Academic Staff Member, Centre for Employment and Labour Relations Law, The University of Melbourne; Secretary, Australian Labour Law Association; Reports Editor, Australian Journal of Labour Law.
[†] BA (Hons), LLB (Hons) (ANU); Research Fellow, Centre for Employment and Labour Relations Law; Centre for Corporate Law and Securities Regulation, The University of Melbourne. An earlier version of this article was presented at the Third Biennial Conference of the Australian Labour Law Association, Brisbane, 22–23 September 2006. The research presented in this article was funded by a grant from The University of Melbourne.
[1] Cynthia Estlund, ‘Rebuilding the Law of the Workplace in an Era of Self‑Regulation’ (2005) 105 Columbia Law Review 319, 321–3. For a discussion of other reasons why the analysis of formal rules has been reduced in importance: see Peter Gahan and Peter Brosnan, ‘The Repertoires of Labour Market Regulation’ in Christopher Arup et al (eds), Labour Law and Labour Market Regulation: Essays on the Construction, Constitution and Regulation of Labour Markets and Work Relationships (2006) 127.
[2] Estlund, ‘Rebuilding the Law of the Workplace’, above n 1, 350. Cynthia Estlund has discussed state innovation as a possible response to the ‘ossification’ of federal labour law in the US: see Cynthia Estlund, ‘The Ossification of American Labor Law’ (2002) 102 Columbia Law Review 1527.
[3] These perspectives are increasingly being used to evaluate labour regulation: see, eg, Hugh Collins, ‘Is There a Third Way in Labour Law?’ in Joanne Conaghan, Richard Michael Fischl and Karl Klare (eds), Labour Law in an Era of Globalization: Transformative Practices and Possibilities (2002) 449; David Weil, ‘Public Enforcement/Private Monitoring: Evaluating a New Approach to Regulating the Minimum Wage’ (2005) 58 Industrial and Labour Relations Review 238; Ralf Rogowski and Ton Wilthagen (eds), Reflexive Labour Law: Studies in Industrial Relations and Employment Regulation (1994). In relation to Australia: see generally Christopher Arup et al (eds), Labour Law and Labour Market Regulation: Essays on the Construction, Constitution and Regulation of Labour Markets and Work Relationships (2006). Of particular relevance to this article are the following: John Howe, ‘“Money and Favours”: Government Deployment of Public Wealth as an Instrument of Labour Regulation’ in Christopher Arup et al (eds), Labour Law and Labour Market Regulation: Essays on the Construction, Constitution and Regulation of Labour Markets and Work Relationships (2006) 167; Sean Cooney, ‘Exclusionary Self‑Regulation: A Critical Evaluation of the AMMA’s Proposal in the Mining Industry’ in Christopher Arup et al (eds), Labour Law and Labour Market Regulation: Essays on the Construction, Constitution and Regulation of Labour Markets and Work Relationships (2006) 187; Gahan and Brosnan, above n 1.
[4] Colin Scott, ‘Analysing Regulatory Space: Fragmented Resources and Institutional Design’ [2001] Public Law 329, 331.
[5] See Anthony Ogus, ‘New Techniques for Social Regulation: Decentralisation and Diversity’ in Hugh Collins, Paul Davies and Roger Rideout (eds), Legal Regulation of the Employment Relation (2001) 82; Terence Daintith, ‘The Techniques of Government’ in Jeffrey Jowell and Dawn Oliver (eds), The Changing Constitution (3rd ed, 1994) 209; Robert Baldwin, ‘Regulation: After “Command and Control”’ in Keith Hawkins (ed), The Human Face of Law: Essays in Honour of Donald Harris (1997) 65. In the US and European Union, scholars tend to use the term ‘new governance’ when considering alternative forms of state regulation: see Lester M Salamon (ed), The Tools of Government: A Guide to the New Governance (2002); Gráinne de Búrca and Joanna Scott (eds), Law and New Governance in the EU and the US (2006).
[6] Miguel Martinez Lucio and Robert Mackenzie, ‘“Unstable Boundaries?” Evaluating the “New Regulation” within Employment Relations’ (2004) 33 Economy and Society 77, 79. The collaborative nature of regulation is also emphasised by the new governance theorists: see, eg, Lester M Salamon, ‘The New Governance and the Tools of Public Action: An Introduction’ in Lester M Salamon (ed), The Tools of Government: A Guide to the New Governance (2002) 1, 8.
[7] See, eg, Ogus, ‘New Techniques for Social Regulation’, above n 5; Neil Gunningham, Peter Grabosky and Darrren Sinclair, Smart Regulation: Designing Environmental Policy (1998)
42–7; Cass Sunstein, After the Rights Revolution: Reconceiving the Regulatory State (1990) ch 3; Baldwin, above n 5; Terence Daintith, ‘Regulation’ in International Encyclopaedia of Comparative Law (1997) vol 17, ch 10; Ian Ayres and John Braithwaite, Responsive Regulation: Transcending the Deregulation Debate (1992); Christine Parker, The Open Corporation: Effective Self‑Regulation and Democracy (2002) 14–15.
[8] John Braithwaite, ‘Neoliberalism or Regulatory Capitalism?’ (Occasional Paper No 5, Regulatory Institutions Network, Research School of Social Sciences, Australian National University, 2005) 1–2, referring to David Levi‑Faur, ‘The Global Diffusion of Regulatory Capitalism’ (2005) 598 Annals of the American Academy of Political and Social Science 12.
[9] Braithwaite, above n 8, 2.
[10] Ibid 8–12.
[11] Although the term ‘self‑regulation’ is frequently used to describe a wide range of regulatory practices, including government facilitation of self‑regulation, in this article the term refers to situations where an individual firm, industry or market sets its own standards and enforces them. It also applies to the voluntary adoption of socially responsible practices by corporations, sometimes in conjunction with, or under pressure from, non‑state regulators such as trade unions or other non‑government organisations: see Anthony Ogus, ‘Self‑Regulation’ in Boudewijin Bouckhaert and Gerriot de Geest (eds), Encyclopaedia of Law and Economics (1997) vol 5, 588.
[12] Gunningham, Grabosky and Sinclair, above n 7; Ayres and Braithwaite, above n 7.
[13] Gahan and Brosnan, above n 1; Keith Ewing, ‘The State and Industrial Relations: “Collective Laissez‑Faire” Revisited’ (1998) 5 Historical Studies in Industrial Relations 1; John Godard, ‘Institutional Environments, Employer Practices, and States in Liberal Market Economies’ (2002) 41 Industrial Relations 249.
[14] Anthony Ogus, ‘Rethinking Self‑Regulation’ (1995) 15 Oxford Journal of Legal Studies 97, 100.
[15] Ibid; Salamon, above n 5.
[16] Howe, ‘“Money and Favours”’, above n 3.
[17] This is sometimes referred to as ‘proceduralisation’ of regulation: see, eg, Julia Black, ‘Proceduralizing Regulation: Part I’ (2000) 20 Oxford Journal of Legal Studies 597; Julia Black, ‘Proceduralizing Regulation: Part II’ (2001) 21 Oxford Journal of Legal Studies 33.
[18] Janet A Weiss, ‘Public Information’ in Lester M Salamon (ed), The Tools of Government: A Guide to the New Governance (2002) 217.
[19] Ogus, ‘Rethinking Self‑Regulation’, above n 14, 100.
[20] Chris Arup, ‘Labour Law as Regulation: Promises and Pitfalls’ (2001) 14 Australian Journal of Labour Law 229, 235.
[21] For a discussion of the concept of ‘regulatory space’: see Scott, ‘Analysing Regulatory Space’, above n 4.
[22] Sean Cooney, John Howe and Jill Murray, ‘Time and Money under Work Choices: Understanding the New Workplace Relations Act as a Scheme of Regulation’ [2006] UNSWLawJl 12; (2006) 29 University of New South Wales Law Journal 215, 217–19.
[23] Ibid.
[24] Ibid. A similar classification is adopted in: Howe, ‘“Money and Favours”’, above n 3; Christopher McCrudden, ‘Social Policy Issues in Public Procurement: A Legal Overview’ in Sue Arrowsmith and Arwel Davies (eds), Public Procurement: Global Revolution (1998) 219.
[25] Daintith, ‘Regulation’, above n 7. This regulatory technique is used by some Australian states in combination with more command and control‑type regulation. For example, the Queensland government produces Prosecution News, which is accessible via its Department of Employment and Industrial Relations website. The available links generally provide the public with the identity of companies that have breached industrial relations legislation, and details of the nature of the breach and the sanction imposed: see Department of Employment and Industrial Relations, Queensland Government, Queensland Workplace Prosecutions (2007) Department of Employment and Industrial Relations <http://www.deir.qld.gov.au/publications/workplaceprosecutions/
2005/index.htm>.
[26] See, eg, Neil Gunningham and Richard Johnstone, Regulating Workplace Safety: Systems and Sanctions (1999); Richard Johnstone, Occupational Health and Safety Law and Policy: Text and Materials (2nd ed, 2004); Richard Johnstone, ‘Regulating Occupational Health and Safety in a Changing Labour Market’ in Christopher Arup et al (eds), Labour Law and Labour Market Regulation: Essays in the Construction, Constitution and Regulation of Labour Markets and Work Relationships (2006) 617.
[27] See, eg, Belinda Smith, ‘A Regulatory Analysis of the Sex Discrimination Act 1984 (Cth): Can It Effect Equality or Only Redress Harm?’ in Christopher Arup et al (eds), Labour Law and Labour Market Regulation: Essays in the Construction, Constitution and Regulation of Labour Markets and Work Relationships (2006) 105; Christine Parker, ‘How to Win Hearts and Minds: Corporate Compliance Policies for Sexual Harassment’ (1999) 21 Law and Policy 21, 29–31.
[28] See, eg, Shelley Marshall, ‘An Exploration of Control in the Context of Vertical Disintegration, and Regulatory Responses’ in Christopher Arup et al (eds), Labour Law and Labour Market Regulation: Essays in the Construction, Constitution and Regulation of Labour Markets and Work Relationships (2006) 542; Michael Rawling, ‘A Generic Model of Regulating Supply Chain Outsourcing’ in Christopher Arup et al (eds), Labour Law and Labour Market Regulation: Essays on the Construction, Constitution and Regulation of Labour Markets and Work Relationships (2006) 542; Shelley Marshall, ‘Legal Protection of Workers’ Human Rights: Regulatory Changes and Challenges’ (Paper presented at the International Institute for the Sociology of Law, Oñati, Spain, May 2006); Igor Nossar, Richard Johnstone and Michael Quinlan, ‘Regulating Supply‑Chains to Address the Occupational Health and Safety Problems Associated with Precarious Employment: The Case of Home‑Based Clothing Workers in Australia’ (2004) 17 Australian Journal of Labour Law 137.
[29] For consideration of the concept of ‘corporate social responsibility’ with respect to labour management issues: see Meredith Jones, Shelley Marshall and Richard Mitchell, ‘Corporate Social Responsibility and the Management of Labour in Two Australian Mining Industry Companies’ (2007) 15 Corporate Governance: An International Review 57.
[30] Sue Arrowsmith, ‘National and International Perspectives on the Regulation of Public Procurement: Harmony or Conflict?’ in Sue Arrowsmith and Arwel Davies (eds), Public Procurement: Global Revolution (1998) 3.
[31] McCrudden, ‘Social Policy Issues in Public Procurement’, above n 24.
[32] Robert Howse describes public procurement as a form of economic incentive‑based regulation: see Robert Howse, ‘Retrenchment, Reform or Revolution? The Shift to Incentives and the Future of the Regulatory State’ (1993) 31 Alberta Law Review 455. It is also often described as a form of ‘consensual constraint’ on enterprise behaviour, as it involves the control of activity through contractual or other agreements with government: Christopher Hood, The Tools of Government (1983) 42.
[33] There is, however, a dearth of academic literature within Australia on the use of public procurement as a regulatory mechanism. An exception is Howe, ‘“Money and Favours”’, above n 3. Comparatively more attention has been paid to the subject in Europe and North America: see, eg, Gillian Morris, ‘The Future of the Public/Private Labour Law Divide’ in Catharine Barnard, Simon Deakin and Gillian Morris (eds), The Future of Labour Law (2004) 159; Christopher Bovis, ‘A Social Policy Agenda in European Public Procurement Law and Policy’ (1998) 14 International Journal of Comparative Labour Law and Industrial Relations 137, 140–8; Michael Orton and Peter Ratcliffe, ‘“Race”, Employment and Contract Compliance: A Way Forward for Local Authorities?’ (2004) 19 Local Economy 150; Andrew Erridge and Ruth Fee, ‘Towards a Global Regime on Contract Compliance’ (1999) 27 Policy and Politics 199; Andrew Erridge and Ruth Fee, ‘The Impact of Contract Compliance Policies in Canada — Perspectives from Ontario’ (2001) 1 Journal of Public Procurement 51; Christopher McCrudden, ‘Using Public Procurement to Achieve Social Outcomes’ (2004) 28 Natural Resources Forum 257.
[34] WRA s 16; New South Wales v Commonwealth [2006] HCA 52; (2006) 231 ALR 1.
[35] This is a limitation which deserves further exploration. For example, could Australian states manage these limitations by having two public procurement programmes: one applicable to employers under state jurisdiction and one applicable to employers under federal jurisdiction? The Canadian federal government has two programmes based on a similar distinction: see Erridge and Fee, ‘The Impact of Contract Compliance Policies in Canada’, above n 33.
[36] See, eg, Department of Public Works, Queensland Government, State Purchasing Policy Review: Policy Paper — November 2006 (2006) 8.4.
[37] The courts have generally taken a narrow view of what constitutes ‘carrying on a business’, with the result that many government activities, including procurement, are immune from the effects of the TPA: see, eg, J S McMillan Pty Ltd v Commonwealth (1997) 77 FCR 227. This includes TPA s 45E, which prohibits ‘contracts, arrangements or understandings affecting the supply or acquisition of goods and services’. See generally Nicholas Seddon, Government Contracts: Federal, State and Local (3rd ed, 2004) ch 6.
[38] Australian Procurement and Construction Council, National Code of Practice for the Construction Industry (1997).
[39] Department of Employment and Workplace Relations, Australian Government, Implementation Guidelines for the National Code of Practice for the Construction Industry (2006).
[40] See Building and Construction Industry Improvement Act 2005 (Cth) ch 7 pt 2.
[41] A recent example of the tension between the federal and state approaches is the warning issued by the federal government to Multiplex that if it signs a state‑based project award in NSW (in compliance with the NSW government’s public procurement guidelines for the construction industry), it will no longer be eligible for federal government contracts: see M Skulley, ‘Canberra Adamant on Building Code’, The Australian Financial Review (Melbourne), 6 April 2006, 8.
[42] New South Wales Treasury, Procurement Policy: Policy and Guidelines Paper (2004); Queensland Government, State Purchasing Policy (2nd ed, 2004); Victorian Government Purchasing Board, VGBP Policies (2002) Victorian Government Purchasing Board <http://www.vgpb.vic.gov.au> . Although all three states maintain different procurement practices, in general terms procurement is normally divided between central and departmental procurement. That is, some goods and services are procured ‘centrally’ through a relatively transparent tender process, while many other goods and services will be procured by departments on an ‘as required’ basis, so long as the purchases are within the area of their responsibility, with less information available about how this purchasing operates.
[43] Victorian Government, Ethical Purchasing Policy — Mandatory Safety Net for Nominated Sectors (2007) BusinessVictoria <http://www.business.vic.gov.au/BUSVIC.5111956/STANDA
RD//PC_61975.html>.
[44] Department of Employment, Training and Industrial Relations, Queensland Government, Queensland Code of Practice for the Building and Construction Industry (2000); Department of Employment and Industrial Relations, Queensland Government, Queensland Government Code of Practice for Call Centres (2001); Department of Employment, Training and Industrial Relations, Queensland Government, Queensland Government Code of Practice on Employment and Outwork Obligations: Textile, Clothing and Footwear Suppliers (2000).
[45] Victorian Government, Building and Construction Code (1999) BusinessVictoria <https://
www.business.vic.gov.au/BUSVIC/STANDARD/1001/PC_50510.html>; Industrial Relations Victoria, Department of Innovation, Industry and Regional Development, Victorian Government Call Centre Code (2007).
[46] NSW Government, NSW Government Code of Practice for Procurement (2005).
[47] For a more detailed conceptual framework: see McCrudden, ‘Social Policy Issues in Public Procurement’, above n 24.
[48] Ibid.
[49] Victorian Government Purchasing Board, Procurement and Ethical Employment (Standard) (2004) Victorian Government Purchasing Board <http://www.vgpb.vic.gov.au/CA256C4500168
50B/0/8F95B4FEC7321C99CA256E0D001BC8F2?OpenDocument>.
[50] Department of Employment and Industrial Relations, Queensland Code of Practice for the Building and Construction Industry, above n 44.
[51] This can also be characterised as a sanction imposed on suppliers that fail to comply with the social criteria through deprivation of the opportunity to bid for contracts in the future.
[52] Victorian Government, The Victorian Government’s Ethical Purchasing Policy: Supporting Fair and Safe Workplaces: Process Guidelines for Government Buyers (2003) 9–11.
[53] Howe, ‘“Money and Favours”’, above n 3, 173; McCrudden, ‘Using Public Procurement to Achieve Social Outcomes’, above n 33, 259.
[54] Howe, ‘“Money and Favours”’, above n 3, 173.
[55] Ibid.
[56] See Queensland Government, State Purchasing Policy, above n 42; NSW Government, NSW Government Code of Practice for Procurement, above n 46, pt 5 app A; Victorian Government Purchasing Board, State Purchase Contracts Policy (2007) Victorian Government Purchasing Board <http://www.vgpb.vic.gov.au/CA256C450016850B/0/686DA5B53FD13348CA256FC00
01B05CC?OpenDocument>.
[57] See, eg, Environmental Protection Agency, Queensland Government, Standard Conditions of Contract for Goods and Services (Including Consultancy Services and Standing Offers to Supply) (2004) <http://www.epa.qld.gov.au/publications?id=1171> .
[58] Industrial Relations Victoria, Code of Practice for the Building and Construction Industry — Victoria Industrial Relations Principles (2002) [1.1].
[59] Ibid.
[60] Ibid [2.1].
[61] Department of Employment and Industrial Relations, Queensland Government Code of Practice for Call Centres, above n 44, art 3.
[62] John Howe and Ingrid Landau, Using Public Procurement to Promote Better Labour Standards: A Case Study of the Victorian Government Schools Contract Cleaning Program (2007) Australian Policy Online <http://www.apo.org.au/linkboard/results.chtml?filename_num=143933> .
[63] Department of Education and Early Childhood Development, Victorian Government, School Contract Cleaning — Panel Status (2007) Department of Education and Early Childhood Development, Victorian Government <http://www.education.vic.gov.au/management/schoolopera
tions/schoolcleaning/panelstatus.htm>.
[64] Ibid.
[65] Department of Education and Early Childhood Development, Victorian Government, School Contract Cleaning — Application for Panel Status (2007) Department of Education and Early Childhood Development, Victorian Government, <http://www.education.vic.gov.au/manage
ment/schooloperations/schoolcleaning/faq.htm>.
[66] Howe and Landau, above n 62, 13.
[67] Department of Education and Early Childhood Development, School Contract Cleaning — Application for Panel Status, above n 65.
[68] While the focus of this article is on state governments, it should be noted that a number of local councils in NSW have signed memoranda of understanding with the NSW Labor Council on procurement issues. These include Holroyd City Council, Leichardt Municipal Council and Cessnock City Council.
[69] NSW Government, NSW Government Code of Practice for Procurement, above n 46, 14–16, 21–5.
[70] Ibid 22.
[71] In a memorandum of understanding between the NSW Department for Public Works and Services and the Labor Council of NSW in 2002, the government agreed to pursue a number of objectives that included, but went beyond, simply requiring contractors to conform to their existing legal obligations. The memorandum of understanding noted that ‘membership and active participation in unions through proper and lawful means is encouraged’. This commitment does not seem to be formally incorporated into the NSW Government’s public procurement framework. See Memorandum of Understanding between the Minister for Public Works and Services and the Labor Council of New South Wales for Goods and Services Procurement (April 2002).
[72] Erridge and Fee, ‘The Impact of Contract Compliance Policies in Canada’, above n 33. Interestingly, the Canadian programme combines requirements for contractors to comply with Equal Employment Opportunity policies with a rewards programme, which recognises those companies who have achieved ‘outstanding’ equity programmes that exceed the contract compliance requirements.
[73] See Thorsten Schulten, Bundesrat Rejects Law on Collectively Agreed Pay in Public Procurement (2002) European Industrial Relations Observatory On‑Line <http://www.eiro.eurofound.ie/
about/2002/08/inbrief/de0208201n.html>. The German government’s efforts to pass this legislation, however, were stymied in the Bundesrat (Germany’s second chamber of Parliament).
[74] The Labour Clauses (Public Contracts) Convention 1949, opened for signature 29 June 1949, ILO C94, art 2(1) (entered into force 20 September 1952). Article 2(2) notes that:
Where the conditions of labour referred to in the preceding paragraph are not regulated in a manner referred to therein in the district where the work is carried on, the clauses to be included in contracts shall ensure to the workers concerned wages (including allowances), hours of work and other conditions of labour which are not less favourable than (a) those established by collective agreement or other recognised machinery of negotiation, by arbitration, or by national laws or regulations, for work of the same character in the trade or industry concerned in the nearest appropriate district; or (b) the general level observed in the trade or industry in which the contractor is engaged by employers whose general circumstances are similar.
[75] Department of Employment and Industrial Relations, Queensland Code of Practice for the Building and Construction Industry, above n 44, [1.5].
[76] Department of Employment and Industrial Relations, Queensland Government Code of Practice on Employment and Outwork Obligations: Textile, Clothing and Footwear Suppliers, above n 44, s 4.3.
[77] Ibid.
[78] Industrial Relations Victoria, Victorian Government Call Centre Code, above n 45, 13–15.
[79] Ibid 14.
[80] Department of Education and Early Childhood Development, Victorian Government, Department Cleaning Panel Agreement 2005 (2005) cl 9.1.
[81] NSW Government, NSW Government Code of Practice for Procurement, above n 46, cl 6.2.
[82] See NSW Treasury, Procurement Policy: Policy and Guidelines Paper, above n 42, 17–18.
[83] Victorian Government, Ethical Purchasing Policy, above n 43. For further detail: see Victorian Government Purchasing Board, The Victorian Government’s Ethical Purchasing Policy: Supporting Fair and Supportive Workplaces: Process Guidelines for Government Buyers (2003).
[84] Ibid.
[85] Victorian Government Purchasing Board, The Victorian Government’s Ethical Purchasing Policy, above n 83.
[86] Ibid.
[87] Industrial Relations Victoria, Code of Practice for the Building and Construction Industry — Victoria Industrial Relations Principles, above n 58, [7.3].
[88] South Australian Government, SA Government Contracting Policy (2006) cl 1.
[89] See Peter Jean, ‘NSW: Will Make Contractors’ [sic] Look after Workers: Della Bosca’, Australian Associated Press, 11 June 2006. An AWA is an individual statutory agreement which operates to the exclusion of collective instruments such as awards and certified agreements.
[90] On the reservations expressed by the NSW Government: see Anne Davies and Phillip Coorey, ‘Call for Workplace Ban Falters’, The Sydney Morning Herald (Sydney), 14 June 2006.
[91] The new requirements are set out in NSW Government, New South Wales Government Procurement Policy — Industrial Relations Requirement (2006) NSW Office of Industrial Relations <http://www.industrialrelations.nsw.gov.au/action/project/index.html.> .
[92] Industrial Relations Act 1996 (NSW) s 35(1)(b).
[93] NSW Government, New South Wales Government Procurement Policy, above n 91.
[94] Victorian Minister for Industrial Relations and Victorian Minister for Finance, ‘Bracks Government Puts the Brakes on Workchoices’ (Press Release, 20 September 2006).
[95] Victorian Government, Ethical Purchasing Policy, above n 43.
[96] Ibid; Victorian Minister for Industrial Relations and Victorian Minister for Finance, above n 94.
[97] See below Part III(C)(2).
[98] Victorian Minister for Industrial Relations and Victorian Minister for Finance, above n 94.
[99] Department of Public Works, State Purchasing Policy Review, above n 36; Department of Public Works, Queensland Government, Purchasing Update — Volume 68 June 2007 (2007) 5.
[100] For discussions of financial incentives as a form of regulatory technique: see, eg, Howse, above n 32; Howe, ‘“Money and Favours”’, above n 3; Anthony Ogus, ‘Nudging and Rectifying: The Use of Fiscal Instruments for Regulatory Purposes’ (1999) 19 Legal Studies 245.
[101] See also Ches Baragwanath and John Howe, ‘Corporate Welfare: Public Accountability and Industry Assistance’ (Discussion Paper No 34, The Australia Institute, Canberra, 2000).
[102] For recent consideration: see Michael Keating, Who Rules? How Government Retains Control of a Privatised Economy (2004) 51–4. The Productivity Commission has estimated that Commonwealth industry assistance and tax concessions alone amounted to over $4 billion in
2003–04: Productivity Commission, Commonwealth Government, Trade and Assistance Review 2003–2004 (2004).
[103] Workplace Express, Aldi AWAs Set New Retail Industry Pay Standard (1 February 2001) Workplace Express <http://www.workplaceexpress.com.au/> . See also ABC Television, ‘Industrial Relations Tipped to Be Significant Election Issue’, The 7.30 Report, 8 June 2004.
[104] See, eg, Good Jobs First <http://www.goodjobsfirst.org> Good Jobs First New York <http://www.goodjobsny.org/index.html> Centre for Policy Alternatives <http://www.cfpa.org/
issues/issue.cfm/issue/CorporateAccountability.xml>.
[105] See, eg, Anna Purinton et al, The Policy Shift to Good Jobs: Cities, States and Counties Attaching Job Quality Standards to Development Subsidies (2003).
[106] These states include Illinois, Washington, South Dakota, Maine and Minnesota.
[107] See, eg, Good Jobs First, Examples of Clawback Provisions in State Subsidy Programs (2005).
[108] See Good Jobs First, Reform #2: Clawbacks, or Money‑Back Guarantees (2007) Good Jobs First <http://www.goodjobsfirst.org/accountable_development/reform2.cfm> .
[109] Department of Employment and Industrial Relations, Queensland Government, Pay Equity Grants Program (2006) Department of Employment and Industrial Relations <http://www.deir.qld.gov.au/industrial/grants/payequity/> .
[110] See Desley Boyle, Minister for Environment, Local Government, Planning and Women, ‘Groups Urged to Apply for Grants before December 31 Cut‑Off’ (Press Release, 10 December 2004).
[111] Department of Innovation, Industry and Regional Development, Victorian Government, 2004/05 Annual Report (2005) 160. A list of grant recipients during 2004–05 is available: at 160–1.
[112] BusinessVictoria, Victorian Government, Partners at Work Grants (2006) BusinessVictoria <http://www.business.vic.gov.au/BUSVIC/STANDARD/1001/PC_60915.html> .
[113] In the financial year 2004–05, grants totalling over $630 000 were spent through the Partners at Work programme: Department of Innovation, Industry and Regional Development, above n 111, 160–1. For a more detailed discussion of this programme: see Schneider Australia Consulting, Evaluation of Partners at Work and Better Work and Family Balance Programs (2006); John Howe, ‘The Role of Light Touch Labour Regulation in Advancing Employee Participation in Corporate Governance’ (Paper presented at the Corporate Governance and the Management of Labour: Australian Perspectives Workshop, Faculty of Law, The University of Melbourne, 7–8 December 2006).
[114] BusinessVictoria, Partners at Work Grants, above n 112.
[115] BusinessVictoria, Victorian Government, Workplace Excellence Awards (2006) BusinessVictoria <http://www.business.vic.gov.au/BUSVIC/STANDARD/1001/PC_60877.html> .
[116] Ibid.
[117] For a discussion of the main advantages and disadvantages of this regulatory technique: see, eg, David Beam and Timothy J Conlan, ‘Grants’ in Lester M Salamon (ed), The Tools of Government: A Guide to the New Governance (2002) 340; Gunningham, Grabosky and Sinclair, above n 7; United Kingdom Better Regulation Commission, Imaginative Thinking for Better Regulation (2003) <http://www.brc.gov.uk/publications/imaginativeregulation.aspx> .
[118] Luis Abugattas Majluf, Domestic Regulation and the GATS: Challenges for Developing Countries (2005) 15–16.
[119] Parker, The Open Corporation, above n 7, 2–3.
[121] Johnstone, ‘Regulating Occupational Health and Safety in a Changing Labour Market’, above n 26.
[122] See, eg, Industrial Relations Victoria, Department of Innovation, Industry and Regional Development, Victorian Government Call Centre Code, above n 45, 5, which is mandatory (a command and control-type instrument) for all government agencies; operates as an economic incentive‑based instrument for parties wishing to contract with government agencies; and operates as a promotional instrument for private sector agencies generally, which are encouraged to voluntarily abide by its provisions. We focus on the second and third types of code usage.
[123] Industrial Relations Victoria, Department of Innovation, Industry and Regional Development, Victorian Government Call Centre Code, above n 45, 4.
[124] BusinessVictoria, Building and Construction Code, above n 45.
[125] Department of Employment and Industrial Relations, Queensland Government Code of Practice for Call Centres, above n 44.
[126] Department of Employment and Industrial Relations, Queensland Government Code of Practice on Employment and Outwork Obligations: Textile, Clothing and Footwear Suppliers, above n 44, Foreword, [1], [7.4].
[127] Department of Employment and Industrial Relations, Queensland Code of Practice for the Building and Construction Industry, above n 44, [1.1], [1.4].
[128] Industrial Relations Victoria, Department of Innovation, Industry and Regional Development, Report of Inquiry: Owner Drivers and Forestry Contractors: Report and Recommendations (2005) vol 1.
[129] Ibid 117.
[130] The report noted that the voluntary nature of the Code (requiring parties to sign up to the Code and agree to comply without enforcement by the state) inhibited its effectiveness: ibid 19–20. In particular: there was limited take‑up; the Code failed to attract support from key industry associations; and the highly competitive nature of the industry would deter companies from signing up to any regulations that would potentially make the operator less competitive than others.
[131] Ibid 117–18.
[132] Ibid 118.
[133] Owner Drivers and Forestry Contractors Act 2005 (Vic) s 27.
[134] Owner Drivers and Forestry Contractors Act 2005 (Vic) ss 55(1), 58(1).
[135] Owner Drivers and Forestry Contractors Act 2005 (Vic) ss 55(3), 58(3).
[136] The Owner Drivers and Forestry Contractors Act 2005 (Vic) is exempted from the Independent Contractors Act 2006 (Cth): see Independent Contractors Act 2006 (Cth) s 7(2)(b)(ii).
[137] Owner Drivers and Forestry Contractors Act 2005 (Vic) ss 56, 59.
[138] Industrial Relations Victoria, Department of Innovation, Industry and Regional Development, Owner Drivers and Forestry Contractors Code of Practice (2006).
[139] Workplace Rights Advocate Act 2005 (Vic). While there is now also a Workplace Rights Advocate in the Northern Territory, a key difference between the two is that the VWRA is an institution created by statute, whereas the Northern Territory Workplace Advocate is created by an administrative act. In NSW, following a parliamentary inquiry into the impact of Work Choices, the Standing Committee on Social Issues has recommended that the NSW government follow the Victorian example and establish a NSW Office of Workplace Rights, as an independent statutory body: see Standing Committee on Social Issues, Parliament of New South Wales, Impact of the Workchoices Legislation (2006) 54–5. The Western Australian government has recently announced its intention to appoint a ‘Fair Employment Advocate’: see Alan Carpenter, Premier of Western Australia and John Bowler, Western Australian Minister for Employment Protection, ‘A Fair Employment Advocate for Western Australians’ (Press Release, 30 November 2006).
[140] For the powers and functions of the VWRA: see Workplace Rights Advocate Act 2005 (Vic) s 5.
[141] Workplace Rights Advocate Act 2005 (Vic) s 13.
[142] Workplace Express, Victoria’s New Workplace Advocate Flags New Employment Codes of Practice (29 May 2006) Workplace Express <http://www.workplaceexpress.com.au/> .
[143] Owner Drivers and Forestry Contractors Act 2005 (Vic) s 55.
[144] Owner Drivers and Forestry Contractors Act 2005 (Vic) s 55.
[145] See, eg, Sandra Fredman and Gillian S Morris, The State as Employer: Labour Law in the Public Services (1989); Bob Carter and Peter Fairbrother, ‘The Transformation of British Public‑Sector Industrial Relations: From “Model Employer” to Marketized Relations’ (1999) 7 Historical Studies in Industrial Relations 119.
[146] See Office of Industrial Relations, NSW Department of Commerce <http://www.industrialrelations.nsw.gov.au/> Department of Employment and Industrial Relations, Queensland Government <http://www.deir.qld.gov.au/industrial/index.htm> BusinessVictoria <http://www.business.vic.gov.au> .
[147] See BusinessVictoria, Victorian Government, High‑Performance Workplaces (2006) BusinessVictoria <http://www. business.vic.gov.au/BUSVIC/STANDARD//PC_60932.html> .
[148] BusinessVictoria, Victorian Government, Managing a High Performance Workplace (2006) BusinessVictoria <http://www.business.vic.gov.au/BUSVIC/STANDARD//PC_60870.html> .
[149] Industrial Relations Victoria, Department of Innovation, Industry and Regional Development, The High Performance Toolkit: Workplace Flexibility: Helping Supervisors ‘Think Outside the Square’ (2003).
[150] BusinessVictoria, Grant Recipients (2006) BusinessVictoria <http://www.business.vic.gov.au/
BUSVIC/STANDARD//PC_60934.html>.
[151] BusinessVictoria, Award Winners (2004) BusinessVictoria <http://www.business.vic.gov.au/
BUSVIC/STANDARD//PC_60936.html>.
[152] BusinessVictoria, Grant Recipients (23 November 2006) BusinessVictoria <http://www.busi
ness.vic.gov.au/BUSVIC/STANDARD/1001/PC_50644.html>; BusinessVictoria, Workplace Excellence Awards (23 November 2006) BusinessVictoria <http://www.business.vic.gov.au/
scripts/nc.dll?BUSVIC:STANDARD:1001:pc=PC_60877.html>.
[153] Victorian Government, Action Agenda for Work and Family Balance (November 2003) 7.
[154] See ibid.
[155] See BusinessVictoria, Quality Part‑Time Work Guidelines (2006) BusinessVictoria <http://www.business.vic.gov.au/BUSVIC.1376492/STANDARD//PC_60956.html> .
[156] Department of Employment and Industrial Relations, Queensland Government, Work, Family and Lifestyle (2007) Department of Employment and Industrial Relations <http://www.deir.qld.gov.au/industrial/family/index.htm> .
[157] Department of Employment and Industrial Relations, Queensland Government, Government Initiatives on Work, Family and Lifestyle (2007) Department of Employment and Industrial Relations <http://www.deir.qld.gov.au/industrial/family/overview/govtinitiatives/> .
[158] Office of Industrial Relations, NSW Department of Commerce, Introducing Workplace Flexibility (2005).
[159] Gillian Whitehouse and Di Zeitlin, ‘Family Friendly Policies: Distribution and Implementation in Australian Workplaces’ (1999) 10 Economic and Labour Relations Review 221, 224.
[160] See Andrew Dungan, ‘Work Choices — The Challenge for State Governments’ (Paper presented at the Third Biennial Conference of the Australian Labour Law Association, Brisbane, 22–23 September 2006).
[161] ‘Fair Go’ advisory services are now operating in most Australian states: see, eg, Office of Industrial Relations, NSW Department of Commerce, Fair Go Advisory Service (29 November 2006) Office of Industrial Relations, NSW Department of Commerce <http://www.industrial
relations.nsw.gov.au/workplace/fair+go+advisory+service.html>; BusinessVictoria, Victorian Government, Workplace Rights Information Line (2007) BusinessVictoria <http://www.bus
iness.vic.gov.au/BUSVIC.2097390/STANDARD//PC_61274.html>.
[162] The 2006–07 budget allocated $500 000 to the Smart Workplaces initiative: Department of Employment and Industrial Relations, Queensland Government, Budget Highlights 2006–07 (2006) Department of Employment and Industrial Relations <http://www.dir.qld.gov.au/
corporate/publications/reports/budget0607/index.htm>. See also Dungan, above n 160, 15.
[163] Arup, ‘Labour Law as Regulation’, above n 20, 231. See also Parker, The Open Corporation, above n 7, 14.
[165] This conception of regulation was developed by Ayres and Braithwaite, above n 7, 4. For a recent application of the concept of responsive regulation to Australian labour law: see Cooney, Howe and Murray, above n 22.
[166] Cooney, Howe and Murray, above n 22, 223.
[167] Gahan and Brosnan, above n 1.
[168] Cooney, Howe and Murray, above n 22, 224. See also Colin Scott, ‘Accountability in the Regulatory State’ (2000) 27 Journal of Law and Society 38.
[169] See, eg, Ayres and Braithwaite, above n 7; Gunningham, Grabosky and Sinclair, above n 7.
[170] The notion of an ‘enforcement pyramid’ was developed by Ayres and Braithwaite, above n 7, 4.
[171] Parker, The Open Corporation, above n 7. For consideration in the context of labour law: see Margaret Lee, ‘Regulating Bargaining and Contracting Systems in Australia’ in Christopher Arup et al (eds), Labour Law and Labour Market Regulation: Essays on the Construction, Constitution and Regulation of Labour Markets and Work Relationships (2006) 67.
[172] Canadian scholars have observed that the evidence on the impact of contract compliance is ‘inconclusive’: Erridge and Fee, ‘Towards a Global Regime on Contract Compliance’, above n 33. In another publication, the authors concluded that the employment equity scheme in Canada, while it ‘looked good on paper’, was underfunded and therefore incapable of meeting its objectives: Erridge and Fee, ‘The Impact of Contract Compliance Policies in Canada’, above n 33. A limited attempt to evaluate the effectiveness of public procurement policies in the West Midlands of the UK concluded that whilst the programme had a positive impact on the employment practices of contractors, there was considerable scope for improvement of the programme: Orton and Ratcliffe, above n 33.
[173] A recent exception is an evaluation of the Victorian Partners at Work, and Better Work and Family Grants programmes commissioned by Industrial Relations Victoria and carried out by a private consulting firm: Schneider Australia Consulting, Evaluation of Partners at Work, above n 113. However, the evaluation is of limited value in assessing the true impact of these programmes: Howe, ‘The Role of Light Touch Labour Regulation’, above n 113.
[174] Mike Terry and Jill Smith, ‘Evaluation of the Partnership at Work Fund’ (Employment Relations Research Series No 17, UK Department of Trade and Industry, 2003) 85.
[175] There is evidence to suggest that this is often the case: see, eg, Janet Walsh and Janine O’Flynn, ‘Managing through Contracts: The Employment Effects of Compulsory Competitive Tendering in Australian Local Government’ (2000) 31 Industrial Relations Journal 454.
[176] See, eg, Industrial Relations Victoria, Department of Innovation, Industry and Regional Development, Victorian Government Call Centre Code, above n 45; Industrial Relations Victoria: Department of Innovation, Industry and Regional Development, Owner Drivers and Forestry Contractors Code of Practice, above n 138; BusinessVictoria, Quality Part‑Time Work Guidelines, above n 155.
[177] This observation is made by Belinda Smith in the context of anti‑discrimination legislation: Smith, above n 27.
[178] This observation is made in an appraisal of ‘Third Way’ ideology and labour law in the UK and European Union: see Sandra Fredman, ‘The Ideology of New Labour Law’ in Catharine Barnard, Simon Deakin and Gillian S Morris (eds), The Future of Labour Law: Liber Amicorum Bob Hepple QC (2004) 9, 18.
[179] See generally Seddon, above n 37; Administrative Review Council, The Contracting Out of Government Services: Report to the Attorney‑General (1998); Kernaghan Webb, ‘Thumbs, Fingers and Pushing on String: Legal Accountability in the Use of Federal Financial Incentives’ (1993) 31 Alberta Law Review 501; Terence Daintith, ‘Regulation by Contract: The New Prerogative’ (1979) 41 Current Legal Problems 41; Scott, ‘Accountability in the Regulatory State’, above n 168; Kenneth Woodside, ‘Comments on: Thumbs, Fingers and Pushing String: Legal Accountability in the Use of Financial Incentives’ (1993) 31 Alberta Law Review 536.
[180] See, eg, Memorandum of Understanding between the Minister for Public Works and Services and the Labor Council of New South Wales for Goods and Services Procurement, above n 71; Owner Drivers and Forestry Contractors Act 2005 (Vic) ss 55(1), 58(1).
[181] For example, implementation of Victoria’s Quality Part‑Time Work Guidelines is largely the responsibility of a single departmental officer.
[182] Ayres and Braithwaite, above n 8. For an overview of the literature: see Parker, above n 8, 8–12.
[183] The Queensland Workplace Rights Ombudsman was appointed in June 2007: see Queensland Workplace Rights Ombudsman <www.workplacerights.qld.gov.au>. In NSW, the Parliamentary Inquiry into Work Choices recommended that the NSW government establish an Office of the Workplace Rights Advocate similar to that in Victoria: Standing Committee on Social Issues, Legislative Council, NSW Parliament, Inquiry into the Impact of the Commonwealth’s WorkChoices Legislation (2006) recommendation 3. This recommendation, however, was rejected by the NSW government on the basis that it believed that many of the tasks that would be undertaken by such an office were already being adequately performed by the Office of Industrial Relations: NSW Government, NSW Government Response to the Final Report from the Standing Committee on Social Issues: Inquiry into the Impact of the Work Choices Legislation (2007) 2.
[184] Michael Quinlan, ‘Contextual Factors Shaping the Purpose of Labour Law: A Comparative Historical Perspective’ in Christopher Arup et al (eds), Labour Law and Labour Market Regulation: Essays on the Construction, Constitution and Regulation of Labour Markets and Work Relationships (2006) 21, 27–8, referring to Mark Goodwin, The Great Wage Robbery: Enforcement of Minimum Standards in Australia (PhD Thesis, University of New South Wales, 2004), a study of the federal industrial relations inspectorate.
[185] See, eg, Davies and Coorey, above n 90; Peter Jean, State to Avoid AWA Contractors (11 June 2006) couriermail.com <http://www.news.com.au/couriermail/story/0,23739,19437802-5003402
,00.html>; Jean, ‘NSW: Will Make Contractors Look after Workers’, above n 89; Department of Public Works, State Purchasing Policy Review, above n 36, 44–5.