Research projects
LEAH group members are involved in several major research projects with collaborators from across the region and beyond. They are tackling complex issues ranging from labour regulation in the Asia-Pacific region, to the self-regulation of labour in Australian professional spot and international framework agreements and labour standards.
Current research projects
Australia's work/care supports
Summary
This DPhil project focuses on 'Australia's Regulatory Framework of Work/Care Supports and the Worker/Carer: A Gender Justice Perspective'.
Researchers
Amanda is a DPhil student and research assistant with Monash University's Business Law and Taxation department. She is interested in researching questions of legal reform that address issues of access to justice and equality using comparative and mixed methods approaches. Her research often involves feminist and interdisciplinary perspectives. She completed her Bachelor of Law (Honours) degree at Monash University where she was actively involved in research endeavours. This included an internship at the Australian Law Reform Commission (ALRC), serving as a research mentor with the Centre for Undergraduate Research and Excellence, presenting at the International Conference for Undergraduate Research, publishing on academic blogs and authoring an Honours Thesis.
She also has professional experience in law having undertaken traineeships in law firms in Melbourne and Kuala Lumpur. She completed her Practical Legal Training with the Australian National University and has been admitted as a lawyer in the Supreme Court of Victoria. Outside of her thesis, Amanda is currently working on several research projects as a research assistant and looks forward to further developing her research abilities and experience.
Project background and aims
While women's participation in Australia's workforce has seen steady increases, women continue to work on blatantly unequal terms. Women are more likely to work in part-time or casual roles, work fewer hours and feature disproportionately in lower-paying jobs and industries with much of these discrepancies arising due to women's disproportionate carer responsibilities.
Nancy Fraser was among the first scholars to identify the need for gender equal patterns of care and its role in achieving gender equality in the workplace. In light of this, Fraser and others proposed that the only acceptable gender equal society would be a universal caregiving society where the worker/carer is treated as the norm. As such, this thesis explores the extent to which Australia's relevant regulatory framework promotes a gender just, universal caregiving society through the provision of work/care supports that meet this thesis's original gender justice criteria of universal availability, enforceability, supportiveness and gender neutrality.
The thesis will assess Australia's present regulatory framework of work/care supports, the work/care supports currently being offered in workplaces, and workplace considerations when introducing work/care supports. These findings will offer contemporary insights as to the state of Australia's regulatory framework for work/care supports, highlight shortcomings, provide insight into the regulatory framework's influence on workplace practices and illuminate the drivers and barriers of corporate behaviour to inform how best to implement identified opportunities for reform.
Supervisors
- Professor Carolyn Sutherland
- Associate Professor Catrina Denvir
Methodology
The thesis uses doctrinal analysis to critically assess Australia's present regulatory framework in relation to work/care supports against this thesis's gender justice framework. It also includes a quantitative analysis of the work/care supports offered in nearly 5000 Australian workplaces using SPSS to provide descriptive statistics into the spread of work/care supports across the variables of company size, industry type and gender-dominance. Regression analyses will also be used to identify the extent to which these variables influence the provision of work/care supports.
The thesis will also feature semi-structured interviews with company representatives to illuminate other factors that may be influencing the provision of work/care supports, workplace perceptions around the need for a universal caregiving society and present drivers and barriers to implementing work/care supports.
Employment and social security
Summary
This research project analyses the relationship between employment and social security in the protection of vulnerable workers.
Researchers
Project background and aims
Recent events reveal the vulnerability of workers whose participation is low paid, precarious, intermittent or over-committed. That vulnerability is experienced both immediately, week to week, and longer-term, for instance in a crisis or in old age.
Calls are now being made to reset the legal provisions for employment and social security, in particular the alignment between private and public responsibilities to protect and support.
Methodology
This project has a policy perspective. It is socio-legal in the sense that it taps social research, analysis of discourses and legal studies to evaluate the biases of proposals for law reform. It is interested in how paradigms shift. A case study is the relationship between employment and unemployment protection in the gig economy.
Output
- Chris Arup, 'Liberty or Protection? Employment and Social Security Law Discourse in Australia' (working paper, December 2021).
- Anthony O'Donnell, Chris Arup, 'Income Support in a Time of Contagion', Australian Journal of Labour Law, forthcoming May 2021.
- Chris Arup, Anthony O'Donnell, 'The end of unemployment: toward a common working-age payment?', Social Security Reporter 5(9): 109-111, 2003.
- Anthony O'Donnell, Chris Arup, 'Social security and labour law: constructing the labour market subject', Working Paper no. 24, Centre for Employment and Labour Relations Law, University of Melbourne, December 2001, 32 pp.
Flexible working arrangements
Summary
The project investigates the impact of the direction to work from home during the COVID-19 pandemic on workers with family responsibilities and how employers responded to requests for flexibility.
Researchers
Project background and aims
In 2020, as part of the government’s response to the COVID-19 pandemic, many employees found themselves working from home. A large subset were also responsible for caring for and educating children while schools, kindergartens and child care facilities were shut intermittently throughout the year. This unusual situation heightened the work-family conflict for many workers. Women were disproportionately affected - they assumed additional caring responsibilities during the pandemic and needed flexible working arrangements to facilitate this.
The aim of this research is to generate more insight into the area of workplace flexibility and to contribute to the policy discussions and developments around the legal protections available to workers who seek flexibility.
Methodology
The project will draw upon traditional doctrinal analysis of the federal, state and territory laws relating to flexibility. Empirical data about the experience of workers with family responsibilities during the COVID-19 pandemic will be collected via an online survey.
Output
- Dominique Allen, Adriana Orifci, 'Home Truths: What did COVID-19 Reveal about Workplace Flexibility?' (2021) Australian Journal of Labour Law (forthcoming)
- Dominique Allen, Adriana Orifci, 'The Battle to Retain COVID's Flexible Working Arrangements', Monash Impact, (https://www2.monash.edu/impact/articles/legal/the-battle-to-retain-covids-flexible-work-arrangements)
- Dominique Allen, Adriana Orifci, 'What working-from-home lessons can be learned to protect fairness and flexibility?', Monash Lens (https://lens.monash.edu/2020/11/30/1381807/what-working-from-home-lessons-can-be-learned-to-protect-fairness-and-flexibility)
- Dominique Allen, 'What if flexibility became the new normal post COVID-19?' (Labour Law Down Under, 23 April 2020, https://labourlawdownunder.com.au/?p=832)
Historical concept of labour
Summary
This project examines the various ideas/concepts of labour as a socially and legally regulated concept since the beginning of stratified/hierarchical civilised states.
Researcher
- Professor Richard Mitchell
Project Background and Aims
Since the 1950s the sub-disciplinary field of law generally known as ‘labour law’ has largely been seen as an area of regulation relating to what are known as employment relationships (i.e. the relationship between those hiring labour and those offering labour in certain forms of contracts).
Overall, this line of investigation has tended to ignore the regulation of other forms of labour relationships and work. However, increasingly the confined nature of this ‘idea’ of labour law as a field of policy and academic inquiry has been brought into question.
Scholars are now pursuing many other types of ‘labour’ relationships, problems and issues as appropriate areas of inquiry in this legal sub-discipline.
The aim of the project is to learn about the extent of the continuity of the different ideas of ‘labour’ and how that labour was (and continues to be) perceived and regulated presently.
Methodology
The current methodology utilised in the project is in the form of a search of secondary materials.
Human rights due diligence and worker protection
Human rights due diligence is emerging as a new global orthodoxy for responsible corporate behaviour. This includes in the area of workers’ human rights, with the concept now found in numerous transnational and national regulatory instruments that deal in whole or in part with labour issues, as well as in the discourse and practices of business, non-governmental organisations and the international trade union movement.
This project examines the implications of this development for the protection and promotion of labour rights. It considers the strengths and weaknesses of human rights due diligence as a tool of transnational labour regulation, and explores how the meaning of human rights due diligence, understood as an emerging transnational norm, is being contested and by whom. It also considers how regulatory frameworks can maximise the potential of the concept as a tool of transnational labour regulation.
In exploring these issues, the project draws on a diverse body of scholarly literature, as well as on extensive analysis of documents and qualitative interviews with actors in Australia, North America and Western Europe.
Researcher
Publications
- I Landau, ‘Human Rights Due Diligence and the Risk of Cosmetic Compliance’ (2019) 60(2) Melbourne Journal of International Law 221-247.
- I Landau, S Marshall, ‘Should Australia be Embracing the Modern Slavery Model of Regulation?’ (2018) 46(2) Federal Law Review 313-339.
- Ingrid Landau, ‘Game Changer? Human Rights Due Diligence and Corporate Respect for Workers’ Rights in the Global Economy’ in J. Howe, A. Chapman and I. Landau (eds) The Evolving Project of Labour Law (Federation Press, 2017).
Indirect sex discrimination
Summary
This MPhil project focuses on ‘Indirect Sex Discrimination under Australian discrimination law - Assessing the Onus of Proof and the Reasonableness Test’.
Researcher
Quynh is currently a Master of Philosophy student in Business Law and Taxation Department. Her interests lie in employment law, sex discrimination law in the workplace and human resources management. She completed her Bachelor’s Degree in Law at Ho Chi Minh City University of Law, Vietnam with a thesis relating to zeroing methodology in the United States’ anti-dumping law and a research project regarding virtual properties in online games under Vietnamese civil law. She also has professional experience as a Human Resources Management Executive for a foreign bank in Vietnam. She is looking forward to working and developing herself in the professional environment focusing on employment matters in Australian and Vietnamese regulations.
Supervisors
Project background and aims
In Australia, the introduction of the sex discrimination laws can be traced back to the 1970s with the adoption of legislation prohibiting sex discrimination in South Australia, New South Wales and Victoria. However, it was not until 1984 that Australian Federal Sex Discrimination Act 1984 (Cth) (SDA) was enacted to implement the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). Although this legislation has undeniably created a positive impact on the promotion of gender equality, especially in the workplace, there are concerns about its effectiveness in achieving its legislative aims. The heavy onus of proof borne by the complainant and the broad interpretation of ‘reasonableness’ as the respondent’s defence are those attracting much attention.
The thesis firstly aims to critique the effectiveness of the SDA in achieving its legislative aims after 34 years in practice focusing on the burden of proof. The thesis will evaluate the current requirements to prove indirect sex discrimination under the SDA as well as assess judicial interpretations of the ‘reasonableness’ of the facially neutral requirements that are imposed by employers and which have a disadvantageous effect on employees. From this basis, it aims to suggest for the design of a mechanism that could assist complainants to gather and assess evidence to prove indirect discrimination claims. Additionally, proposes legislative reforms to provide additional guidance about the meaning of ‘reasonableness’. These reforms would provide greater clarity to the parties and assist the court in interpreting the indirect discrimination provisions.
Methodology
This project is conducted using doctrinal legal analysis. It looks at the provisions of the Australian Sex Discrimination Act 1984 (Cth) with a reference to other State and Territory discrimination laws. The project will also draw attention to the practice of the United Kingdom’s questionnaire procedure and its impacts on reducing the burden of proof. Findings from analysing this procedure will be used as a reference for legislative reform proposals of the Sex Discrimination Act 1984 (Cth).
Output
Introduction of the project and the historical review on sex discrimination laws in Australia have been presented at the Monash Business School Doctoral Colloquium on 28-29 November 2018.
Innovative discrimination laws
Summary
This project evaluates the effectiveness of new mechanisms in the Equal Opportunity Act 2010 (Vic) which were designed to target systemic discrimination and promote substantive equality.
Researcher
Project background and aims
The Equal Opportunity Act 2010 (Vic) is the most modern anti-discrimination law in Australia and contains a number of innovative mechanisms including a focus on substantive equality, simplified definitions of direct and indirect discrimination, positive obligations on duty holders to address discrimination, a focus on early dispute resolution, direct access to the tribunal, and powers for the statutory agency to encourage compliance with the law. This project will evaluate the effectiveness of those mechanisms in addressing systemic discrimination and promoting substantive equality. The project is being funded by the Victorian Legal Services Board.
Methodology
The effectiveness of the new mechanisms in the Equal Opportunity Act 2010 (Vic) will be examined through a combination of doctrinal analysis, documentary analysis and empirical legal research. Interviews will be conducted with staff at the Victorian Equal Opportunity and Human Rights Commission, and barristers and solicitors practising in Victoria.
Output
Research report
- Dominique Allen, Addressing Discrimination Through Individual Enforcement: A Case Study of Victoria (2019, Monash Business School, Monash University, Victoria)
Journal articles
- Dominique Allen, 'An Evaluation of the Mechanisms Designed to Promote Substantive Equality in the Equal Opportunity Act 2010 (Vic)' (2020) 44(2) Melbourne University Law Review 459-501
- Dominique Allen, '"Thou Shalt Not Discriminate" Moving from a Negative Prohibition to Imposing a Positive Obligation on Business to Tackle Discrimination' (2020) 26(1) Australian Journal of Human Rights
- Dominique Allen, Alysia Blackham, 'Under Wraps: Secrecy, Confidentiality and the Enforcement of Equality Law in Australia and the UK' (2019) 43(2), Melbourne University Law Review 385.
- Dominique Allen, 'Confidentiality Hides the Extent of Sexual Harassment in Australian Workplaces' (2019) 3 Revue de Droit comparé du Travail et de la Sécurité sociale (Comparative Labour and Social Security Law Review).
Conference presentations
- Dominique Allen, The Challenges of Enforcing Anti-Discrimination Law, ‘Equality Law Forum’, University of Melbourne, 28 November 2019
- Dominique Allen, Positive and Proactive: A New Model for Enforcing Anti-Discrimination Law, Monash University, 22 August 2019 (with Belinda Smith)
- Dominique Allen, Proactive Approaches to Addressing Discrimination and Inequality by Business: Mapping the Current Approach, ‘Innovate Rights’ Academic Workshop, UNSW, Sydney 14 May 2019
- Dominique Allen, The Challenges of Addressing Workplace Discrimination – A Case Study of Victoria, ‘Global Work, Quality Work’, 33rd Annual AIRAANZ Conference, RMIT University, 12-14 February 2019
- Dominique Allen, Victoria’s Equal Opportunity Act – Does it Contain the Best Tools for the Job?, ‘The Persistence of Inequity at Work: Examination of the Impact of Almost 50 Years of Anti-discrimination and Equity Law, Policy and Practices’, Macquarie University, 15 November 2018
- Dominique Allen, A New Approach to Tackling Workplace Discrimination in Victoria: Findings from an Empirical Study, the Australian Labour Law Association’s Biannual Conference, Broadbeach, 9-10 November 2018
- Dominique Allen, The Troubling State of Anti-Discrimination Law in Australia, the Society of Legal Scholars’ Annual Conference, London 6-7 September 2018
- Dominique Allen, Direct Access to Court for Discrimination Claimants: Evaluating a Unique Victorian Innovation, Monash Courts and Tribunals Research Roundtable, Melbourne, 18 September 2017
Podcast
- Why Discrimination at Work Still Happens (August 2019)
Judicial reasoning in Australian labour law cases
Summary
This project examines two aspects of judicial reasoning in Australian labour law cases: (1) the ways in which judges use social science information; and (2) the use of ‘common-sense’ reasoning to resolve contested issues.
Researcher
- Carolyn Sutherland (Department of Business Law and Taxation, Monash)
Project background and aims
The first aspect of the project is an examination of judicial use of social science information. This is an under-explored issue, especially in labour law, yet historical, economic and other information from the social sciences will frequently be relevant to labour law disputes. This part of the project analyses selected court decisions where reliance on judicial intuition has resulted in controversial outcomes, and rare cases in which social science studies have informed judicial reasoning. As a consequence of this analysis, two preliminary steps are suggested that should precede any proposal to reform litigation practices. First, an expansion in the scope of legal education is necessary to ensure law students, advocates and judges are equipped to evaluate social science research methods and perspectives. Second, labour law scholars could increase their engagement with social science information to demonstrate its relevance to contentious issues that arise in this field.
The second aspect of the project is an exploration of judicial findings that are based on ‘common-sense’ reasoning, particularly in cases about the status of workers. These findings are typically drawn from the judges’ general knowledge or intuition and may be presented as ‘obvious’ or ‘well-known’ commercial or social realities. Given the consequences that flow from the categorisation of a worker as either an entrepreneurial independent contractor or as an employee entitled to a safety net of statutory protections, it is important that these ‘common-sense’ assumptions represent an understanding of workplace relationships that is both contemporary and socially inclusive.
This part of the project will draw on judicial decisions about worker status from the courts and tribunals of the UK, Australia and New Zealand. The analysis of these decisions identifies three examples of ‘common-sense’ assumptions that influence judicial approaches to the categorisation of workers across the three jurisdictions. It is argued that these assumptions reflect historically and culturally contingent understandings of workplace relationships that fail to account for the lived experience of a diverse workforce.
Methodology
The approach of the project is consistent with, but diverges from, traditional doctrinal analysis which is concerned with coherence in judicial reasoning and outcomes. Instead, a form of discourse analysis is used which involves examination of the language of judgments to draw out underpinning assumptions and to consider whether social science evidence and/or greater attention to the narratives of workers (as expressed in the cases) might challenge these assumptions.
Output
- Sutherland C, 'Interdisciplinarity in Judicial Decision-Making: Exploring the Role of Social Science in Australian Labour Law Cases' (2018) 42 Melbourne University Law Review 232
Labour disputes in Southeast Asia
Summary
This project examines the ‘Formal and Informal Regulation of Collective Labour Disputes in Indonesia, the Philippines and Vietnam’. It is funded by a three-year ARC Discovery Grant.
Researchers
- Professor Carolyn Sutherland
- Professor Richard Mitchell
- Dr Petra Mahy
- Ingrid Landau
- Professor John Howe (University of Melbourne School of Government)
- Dr Wayne Palmer
- Trang Thi Kieu TRAN (PhD candidate)
- Amanda Darshini Selvarajah (Research Assistant)
Project Background and Aims
This project is funded by a three-year Australian Research Council Discovery Grant (2019-2021) (#DP190100821).
The project will investigate the formal and informal mechanisms of collective labour dispute resolution in three Southeast Asian countries: Indonesia, the Philippines and Vietnam. The project is based on the important observation that formal (state-based) labour laws and institutions often play only a limited role in these countries. That is to say, Southeast Asian legal systems, and state-based labour law and industrial relations systems more specifically, are generally characterised by limited effectiveness, while non-state regulation and the activities of unofficial actors may complement, substitute or conflict with the law.
The project will address three sets of questions regarding collective dispute resolution in Indonesia, the Philippines and Vietnam:
- How are collective labour disputes defined and regulated under the formal legal systems of each country?
- How effectively do these systems operate in practice and what are the major conditions contributing to the relative success or failure of such systems?
- What role is played by informal institutions and actors in dispute resolution and settlement in each country; how does such informal regulation interact with formal labour law; and what are the effects of such alternative mechanisms in practice?
Methodology
This project will use a combination of doctrinal legal analysis and empirical qualitative research methods. The project is also comparative and examines three country contexts in Indonesia, the Philippines and Vietnam, and will focus on the manufacturing sector in each country. The project will involve a systematic and sustained study of the laws and formal institutions that regulate collective labour disputes in conjunction with empirical interview-based research on actual dispute resolution and the identification of informal norms and processes also used by actors and institutions (i.e., how law interacts with other forms of regulation or normative ordering).
Publications Related to this Project
- Petra Mahy (2022), ‘Indonesia’s Omnibus Law on Job Creation: Legal Hierarchy and Responses to Judicial Review in the Labour Cluster of Amendments,’ Asian Journal of Comparative Law, 17(1)
- Petra Mahy (2021) 'Indonesia's Omnibus Law on Job Creation: Reducing Labour Protections in a Time of COVID-19', Labour Equality and Human Rights (LEAH) Research Group, Working Paper no. 23, Monash University.
- Petra Mahy (2020) 'COVID-19 and Labour Law: Indonesia', Italian Labour Law E-Journal, v. 13(1S)
- Petra Mahy, Richard Mitchell, John Howe and Maria Azzurra Tranfaglia, (2019) ‘What is Actually Regulating Work? A Study of Restaurants in Australia and Indonesia’ in Re-Imagining Labour Law for Development: Informal Work in the Global North and South, edited by Diamond Ashiagbor (Hart Publishing).
- Ingrid Landau and Fang Lee Cooke (2018) ‘Employment Regulation and Industrial Relations in Indonesia, Malaysia, the Philippines, Thailand and Vietnam’ in Routledge Handbook of Human Resource Management in Asia, edited by Fang Lee Cooke and Sunghoon Kim (Routledge).
- Petra Mahy, Richard Mitchell, Sean Cooney and John Howe (2017) The Plural Regulation of Work: A Pilot Study of Restaurant Workers in Yogyakarta Indonesia(Centre for Employment and Labour Relations Law, University of Melbourne).
- Petra Mahy (2016) ‘The Functional Approach in Comparative Socio-Legal Research: Reflections Based on a Study of Plural Work Regulation in Australia and Indonesia’, International Journal of Law in Context 12(4): 47-67.
- Ingrid Landau, Petra Mahy and Richard Mitchell (2015) ‘The Regulation of Non-Standard Forms of Employment in India, Indonesia and Viet Nam’ (ILO INWORK Working Paper no. 63).
Labour law research methods
Summary
This project examines the various methodologies used in examining labour law – including traditional/doctrinal analysis and empirical legal research. It also considers the potential for interdisciplinary work, and what the implications of this approach might be for both law and the related disciplines.
Researcher
- Professor Richard Mitchell
Project background and aims
Generally speaking research methodology in labour law is assumed rather than stated. The traditional doctrinal approach underlies most labour law text and exposition, but is often intermixed with contextual content from other disciplines.
Complicating this arrangement is the fact that many studies from social science disciplines invoke law without properly examining its methodological significance (i.e. law is treated unproblematically as data). Methodology is, therefore, a problem from both perspectives.
The implications of these kinds of issues are apparent in work which is essentially interdisciplinary in nature but unrecognised as such, and the failures to clearly identify the roles which the legal discipline can play in closely related fields such as industrial/employment relations.
Methodology
The approach presently taken in this project is a review of secondary sources.
Legal liability for AI
Summary
The rise of artificial intelligence raises new issues for the law in relation to harm caused by algorithms and artificial intelligence. Who will be responsible if things go wrong?
Researchers
Project background and aims
The project aims to explore liability issues involving algorithms and artificial intelligence looking at a number of areas where such issues might arise, how existing laws may be applied in common law countries including Australia and where such developments may take us in the future.
Methodology
The analysis will be traditional legal doctrinal with an underpinning of philosophical analysis, particularly in the more speculative final section.
Pregnancy discrimination at work in Victoria
Pregnancy discrimination at work in Victoria: A snapshot
Summary
This project investigates pregnancy discrimination in Victorian workplaces using qualitative and quantitative research methods. Its significance includes addressing a marked information gap regarding the experiences of pregnant women at work in Victoria. The project involves collaboration with the leading employment rights legal centre in Victoria, JobWatch Inc.
Researchers
Project background and aims
Pregnancy discrimination continues to be prevalent in Australian workplaces. A 2014 report by the Australian Human Rights Commission (‘AHRC’) found that 49% of new mothers experienced discrimination in the workplace on at least one occasion and of them, 55% reported experiencing discrimination more than once. Women who experienced discrimination during pregnancy are likely to be younger women aged 18-24.
Despite the prevalence of pregnancy discrimination in the workplace, very little is known about it. Few people who experience pregnancy discrimination go on to lodge a formal claim. Most discrimination claims that are lodged are settled confidentially or withdrawn, and the equal opportunity commissions (which investigate claims) do not publish any data about the nature of the pregnancy discrimination complaints they receive. There is also a lack of scholarly understanding about the characteristics of women who experience pregnancy discrimination, their experiences and what they might choose to do about discriminatory treatment.
This project therefore has three key aims. The first is to identify the demographic characteristics of women who experience pregnancy discrimination in Victoria. The second is to identify how pregnancy discrimination manifests itself at work and how those Victorian women who are exposed to pregnancy discrimination experience and respond to it. The third aim is to examine whether the manifestations of pregnancy discrimination identified in the data are reflected in cases determined by courts and tribunals.
Methodology
The project uses legal and empirical research methods to collect data about the nature of pregnancy discrimination in Victorian workplaces. Data is drawn from three sources: literature about the prevalence of pregnancy discrimination in Victorian organisations; decided cases; and relevant de-identified data from JobWatch drawn from records of telephone calls to its advice line.
Promoting better working conditions in global supply chains through public procurement
Summary
How can public procurement initiatives be designed effectively to promote and secure better working conditions in transnational supply chains?
Researchers
- Ingrid Landau
- Professor John Howe (University of Melbourne School of Government)
Project background and aims
Recent years have seen a resurgence of interest in the potential and actual use of public procurement as a means of promoting respect for labour rights. At the transnational level, there is growing interest in leveraging the purchasing power of the state to augment existing public and private efforts to address labour and human rights violations in global production networks. Scholarly and activist attention to date, however, has focused largely on the desirability or legality of such measures. Some efforts have also been made to map existing initiatives globally. This project focuses on questions of regulatory design - and more specifically of compliance and enforcement – which we suggest remain under-examined in either the domestic or international context.
This project explores questions such as: How can public procurement initiatives be designed in a way that take into account the complexity and fragmented nature of transnational production? How are procuring authorities, without expert knowledge or expertise of labour rights issues, to monitor any labour-related obligations imposed upon suppliers in public contracts? How can and should public procurement authorities respond to cases of supplier non-compliance with any such contractual obligations?
Methodology
Drawing on insights from transnational labour governance and the normative model of responsive regulation, this project seeks to theoretically and empirically evaluate selected responsible procurement initiatives from a number of different jurisdictions around the world, with a view to better understanding the potential of such programmes to bring about effective and positive changes in working conditions.
Output
Preliminary findings from this research have been presented at the following academic and practitioner workshops:
- Workshop on Public Procurement and Modern Slavery, Worskhop organised by Plus Alliance Partners, King’s College London and the University of NSW, in collaboration with the Business, Human Rights and the Environment Research Group at the University of Greenwich, London, UK,29 November 2019.
- 4th Labour Law Research Network (LLRN) Conference, Valparaíso, Chile, 25 June 2019.
- Innovate Rights: New Thinking in Business and Human Rights Academic Consultation, Australian Human Rights Institute, University of New South Wales, Sydney, Australia, 14 May 2019.
- Socially Responsible Public Procurement: An Exploration of the Role of the State in Labour Governance in Global Production Networks, Workshop at Queen Mary University of London, London, UK, 16 November 2018.
Worker protection index
Summary
The Worker Protection Index (WPI) has been developed as a new measure for quantitative cross-national comparison of the strength of worker protection provided by law.
Researchers
- Dr Petra Mahy (Department of Business Law and Taxation, Monash University)
- Professor Carolyn Sutherland (Department of Business Law and Taxation, Monash University)
- Professor Richard Mitchell (Department of Business Law and Taxation, Monash University)
- Professor Peter Gahan (Department of Management and Marketing, University of Melbourne)
- Anthony O’Donnell (La Trobe University Law School)
- Professor Sean Cooney (Melbourne Law School)
- Professor Gordon Anderson (Faculty of Law, Victoria University of Wellington)
- Professor Andrew Stewart (Adelaide Law School)
- Dr Jonathan Sale (University of South Australia)
- Dr Ha Hai Do (Melbourne Law School)
- Tvisha Shroff (Faculty of Law, University of Cambridge)
- Elisa Solomon (Independent Researcher)
Project background and aims
This project has developed the Worker Protection Index (WPI), a new measure for quantitative cross-national comparison of the strength of worker protection provided by law. Although there are a number of similar existing indices available, the Worker Protection Index includes some conceptual and methodological innovations. The WPI is wider in scope than many other comparable indices and arguably is more sensitive to variance in labour regulation systems around the world. The WPI rests explicitly on a conceptualisation of ‘worker protection’ such that its variables have been selected based on their functional role in providing economic and social security to workers across their life course. The WPI also utilizes some additional conceptual and methodological innovations to try to make the results more validly comparable across developing and developed states. In particular, it takes account of coverage of the law for particular groups of workers, and also utilises a proxy measure for legal effectiveness.
Output
- Petra Mahy, Richard Mitchell, Carolyn Sutherland, Peter Gahan, Anthony O’Donnell, Sean Cooney, Gordon Anderson, Lingfeng Mao and Andrew Stewart, ‘Measuring Worker Protection using Leximetrics: Illustrating a New Approach in Four Asia-Pacific Countries’, American Journal of Comparative Law, v. 67, 2019.
- Petra Mahy, Ha Hai Do, Jonathan Sale and Arlene Sale, ‘The Comparative Evolution of Worker Protection Regulation in Southeast Asia: A Quantitative Approach’ presented at Labour Law Research Network (LLRN) Conference, Valparaiso Chile, 23-25 June 2019, and presented at ‘Global Challenges and Local Responses: Transformation of Labour Relations and Legal Framework in Vietnam and Emerging Economies’, Ho Chi Minh City University of Law, 14-16 July 2019.
- Gordon Anderson, Sean Cooney, Peter Gahan, Petra Mahy, Richard Mitchell, Anthony O’Donnell, Andrew Steward and Carolyn Sutherland, ‘The Worker Protection Index (WPI): Coding for Australia, China, Indonesia and New Zealand’, SSRN.
Workplace investigations: Interactions with regulation and pathways for reform
Workplace investigations are an essential management tool for employers, including to address allegations of employee misconduct and discharge statutory obligations. In addition, conducting workplace investigations has, over the last decade, become a burgeoning industry. Little is known, however, about the actual practices of workplace investigations and the interface of investigations with public regulation.
This project will be the first detailed analysis of the law and policy dealing with workplace investigations in Australia. It will include empirical research on the process and outcomes of workplace investigations, which will explore the experiences of employers, employees, investigators and advisors.
As well as examining the history of regulation of workplace investigations, and the current regulatory framework covering this growing field, this project will canvass what might be done in the future to improve the protections for employees, and others, who are involved in workplace investigations.
Researcher
Publications
- A Orifici, ‘Unsystematic and Unsettled: A Map of the Legal Dimensions of Workplace Investigations in Australia’ (2019) 42(4) University of New South Wales Law Journal 1075
Past projects
Strike ballots in Australia
Summary
This project examines the impact of the ballot requirement and statutory process on decision-making by bargaining representatives and subsequent employee access to industrial action in Australia.
Researchers
- Dr Catrina Denvir (Department of Business Law and Taxation, Monash University)
- Professor Shae McCrystal (University of Sydney)
- Professor Breen Creighton (RMIT)
- Professor Richard Johnston (QUT)
- Dr Alice Orchiston (University of Sydney)
Project background and aims
Under the Fair Work Act 2009 (Australia) (Cth), employees wishing to take lawful industrial action in support of collective bargaining must first have authorised the action in a secret ballot. This mixed method empirical research project explores the effect of the statutory process by which a bargaining representative seeks permission from the Fair Work Commission to conduct a ballot. It examines the impact of the ballot requirement and statutory process on decision-making by bargaining representatives and subsequent employee access to industrial action. The first study of its kind, this Australian Research Council funded project involves researchers from Sydney University, Queensland University of Technology and RMIT. The work provides much needed insight into the effect of the regulatory scheme on enterprise bargaining behaviour.
Methodology
This research adopts an empirical (quantitative and qualitative components) and traditional/doctrinal analytical methods. The quantitative component involves descriptive and inferential statistical analysis of information contained in a database developed by the authors. The database captures information relating to all PABO applications submitted to the FWC during the period 1 July 2015 to 30 June 2016 (n = 1302). Qualitative data was drawn from 74 in-depth semi-structured interviews undertaken with applicants and respondents to PABO applications submitted to the FWC during July 2015-June 2016.
Outputs
- Orchiston, A., Creighton, B., Denvir, C., Johnston, R. and McCrystal S. (In Press) Pre-Strike Ballots and Enterprise Bargaining Dynamics: An Empirical Analysis. Melbourne Law Review;
- Creighton, B., Denvir, C., Johnston, R. McCrystal S., and Orchiston, A. (In Press) Pre-strike Ballots and Collective Bargaining: The Impact of Quorum and Ballot Mode Requirements on Access to Lawful Industrial Action. Industrial Law Journal;
- Creighton, B., Denvir, C., Johnston, R. McCrystal S., and Orchiston, A. (In Press) The role of the ‘genuinely try to reach agreement’ requirement in the protected industrial action regime under the fair work act 2009. Australian Journal of Labour Law;
- Creighton, B., Denvir, C., Johnston, R. and McCrystal S. (2018) Protected Industrial Action Ballots – An Empirical View. Journal of Industrial Relations, 60(1) 53-76;
- Creighton, B., Denvir, C. and McCrystal S. (2017) Defining Industrial Action. Federal Law Review, 45(3), 383-414;
- Creighton, B., Denvir, C. and McCrystal S. (2016) Strike Ballots and the Law in Australia. Australian Journal of Labour Law, 29 (2016), 154-170).
- Denvir, C. and McCrystal S. ‘Researching Labour Law in Practice: Assessing the Impact of Protected Industrial Action Ballot Procedures on Enterprise Bargaining Processes’, in Howe, J., Chapman, A., and Landau, I. (2017) The Evolving Project of Labour Law. Melbourne: Federation Press
Collective bargaining, good faith bargaining and union recognition
The Rudd Government's 'Fair Work' legislation promotes collective bargaining over wages and other conditions of employment, ending the primacy accorded to individualised forms of agreement-making under the former Coalition Government. The Fair Work Act 2009 (Cth) establishes a new system of collective bargaining based on the principles of 'majority employee support' and 'good faith bargaining'. It also provides unions with increased rights of involvement in bargaining processes.
This project examines the content, operation and interpretation of these new collective bargaining rules, with a particular focus on the good faith bargaining obligations, and Fair Work Australia's role in overseeing the legislation (for example, through the making of bargaining orders, serious breach declarations, majority support determinations, scope orders and workplace determinations).
The project also considers the new Australian legislation in comparative perspective, by examining the relevance of US, Canadian, UK and NZ collective bargaining laws and practices.
Researcher
- Anthony Forsyth
Publications
- Anthony Forsyth, ''Good Faith Bargaining: Australian, United States and Canadian Comparisons", Chairman's Lunchtime Seminar, United States National Labor Relations Board, Washington, DC, USA, 4 November 2009.
- Anthony Forsyth, ''Exit Stage Left', now 'Centre Stage': Collective Bargaining under Work Choices and Fair Work', in Anthony Forsyth and Andrew Stewart (eds), Fair Work: The New Workplace Laws and the Work Choices Legacy, The Federation Press, Sydney, 2009, 120-140.
- Anthony Forsyth, 'Worker Representation in Australia: Moving Towards Overseas Models?' (2007) 33:1 Australian Bulletin of Labour 1-33.
- Anthony Forsyth, Peter Gahan, Marco Michelotti, Andreas Pekarek and Renee Saibi, Collective Bargaining and Union Recognition Rights: Policy Issues for Australia, Research Report for the Australian Institute of Employment Rights, April 2006, i-xvii, 116 pages.
- Anthony Forsyth and Carolyn Sutherland, 'Collective Labour Relations under Siege: The Work Choices Legislation and Collective Bargaining' (2006) 19:2 Australian Journal of Labour Law 183-197.
Australian regulation of economic dismissals
This project involved a detailed study of the 'genuine operational reasons' exclusion from federal unfair dismissal claims introduced by the former Coalition Government's 'Work Choices' legislation. All decisions involving application of the exclusion between March 2006 and July 2007 were examined. The research found that the operational reasons exclusion was interpreted very broadly by the Australian Industrial Relations Commission, extending beyond redundancy-related dismissals, and thereby contributed to reduced levels of job security for Australian workers.
A later stage of the research found that Australian regulation of economic dismissals under Work Choices ranked towards the 'weaker' end of the spectrum of protection when compared to five other OECD countries. However, changes introduced by the Rudd Government's 'Fair Work' legislation (including a narrower 'genuine redundancy' exclusion from unfair dismissal, and new rights for employees to severance pay) mean that Australian law now ranks at the stronger end of this spectrum of protection.
Researcher
- Anthony Forsyth
Publications
- Anthony Forsyth, 'Protection Against Economic Dismissals: How Does Australian Law Compare with Five Other OECD Countries?' (2009) 50 Journal of Industrial Relations (forthcoming; accepted for publication).
- Anthony Forsyth, 'Australian Regulation of Economic Dismissals: Before, During and After 'Work Choices'' (2008) 30:3 Sydney Law Review 506-536.
- Anthony Forsyth, Protection Against Economic Dismissals: How Does Australian Law Compare with ILO Standards and Five Other OECD Countries?, Supplementary Report for the Victorian Office of the Workplace Rights Advocate/Department of Innovation, Industry and Regional Development, November 2007, 45 pages.
- Anthony Forsyth, Freedom to Fire: Economic Dismissals under Work Choices, Report for the Victorian Office of the Workplace Rights Advocate/Department of Innovation, Industry and Regional Development, August 2007, 79 pages.
Workplace dispute resolution and dispute prevention
Institutional arrangements for the resolution of workplace disputes in Australia have been in a constant state of change since the early 1990s. This project examines the changing role of the federal industrial tribunal, monitoring its transformation from the Australian Industrial Relations Commission, the significant reduction in that body's role and powers under the Coalition Government's 'Work Choices' legislation, through to the AIRC's replacement by Fair Work Australia under the Rudd Government's Fair Work Act 2009 (Cth).
The project also explores the innovative, dispute prevention roles that have increasingly been assumed by industrial tribunals in the UK, Ireland, the US and Canada in recent years - and explores the capacity for Fair Work Australia and the Office of the Fair Work Ombudsman to take on similar functions, to assist workplace relations parties to build more productive relationships.
Researcher
- Anthony Forsyth
Publications
- Anthony Forsyth and Holly Smart, 'Third Party Intervention Reconsidered: Promoting Cooperative Workplace Relations in the New 'Fair Work' System' (2009) 22 Australian Journal of Labour Law 117-146.
- Anthony Forsyth, Promoting Cooperative Workplace Relations in the New 'Fair Work' System, Policy Discussion Paper for the Business Council of Australia, June 2009, 21 pages; released as BCA, Embedding Workplace Collaboration: Preventing Disputes, 9 August 2009, 16 pages.
- Anthony Forsyth, 'Dispute Resolution under Work Choices: The First Year' (2007) 18:1 Labour and Industry 21-46.
- Anthony Forsyth, 'Arbitration Extinguished: The Impact of the Work Choices Legislation on the Australian Industrial Relations Commission' (2006) 32:1 Australian Bulletin of Labour 27-44.
Regulating for workplace cooperation: Assessing the implementation of a reform
Promoting cooperative and harmonious workplaces is stated as a key objective of the Rudd Government's 'Fair Work' legislation (the Fair Work Act 2009 (Cth)). Some aspects of the legislation clearly have the capacity to contribute to greater levels of cooperation in Australian workplaces - for example, the new 'good faith bargaining' provisions and requirements for consultation over workplace change.
This project explores the extent to which the stated objective of workplace cooperation is achieved (in practice) in the legislation's early years of operation, through an examination of:
- the legislative and administrative framework for workplace cooperation under the Fair Work Act and associated regulatory instruments/arrangements
- how the new law is implemented and operationalised by regulatory agencies, including Fair Work Australia and the Office of the Fair Work Ombudsman
- how employment relations parties (employees, unions, employers, employer organisations) implement the legislation 'on the ground' in Australian businesses and other workplaces.
Researchers
- Chris Arup, Anthony Forsyth, Richard Mitchell (Monash Dept of BLT)
- Peter Gahan (Monash Dept of Management)
- John Howe (University of Melbourne)
- Richard Johnstone (Griffith University)
Publications
- Anthony Forsyth and Holly Smart, 'Third Party Intervention Reconsidered: Promoting Cooperative Workplace Relations in the New 'Fair Work' System' (2009) 22 Australian Journal of Labour Law 117-146.
- Anthony Forsyth, Promoting Cooperative Workplace Relations in the New 'Fair Work' System, Policy Discussion Paper for the Business Council of Australia, June 2009, 21 pages; released as BCA, Embedding Workplace Collaboration: Preventing Disputes, 9 August 2009, 16 pages.
- Peter Gahan and Donna Buttigieg, 'High Performance Work Systems and the Social Context of Work: The Role of Workplace Climate' (2008) 19 Labour and Industry 1-23.
- Anthony Forsyth and John Howe, Current Initiatives to Encourage Fair and Cooperative Workplace Practices: An International Survey, Report for the Victorian Office of the Workplace Rights Advocate/Department of Innovation, Industry and Regional Development, June 2008, 119 pages.
- Peter Gahan, David Taft, Richard Mitchell and Kathryn Bion, The Impact of Fair and Cooperative Employment Practices on Business Performance: A Review of the International Evidence, Work and Employment Rights Research Centre, Monash University, June 2008.
Assessing the impact of labour and employment law
This project is designed to make an assessment of the impact of the labour law policies of the Coalition government over the period 1996 to 2007. It also seeks to examine the way researchers in labour law go about their work, and the difficulties of engaging in interdisciplinary research of an empirical nature.
Researchers
- Richard Mitchell, Anthony Forsyth, Carolyn Sutherland, Chris Arup, David Taft (Department of BLT)
- Peter Gahan (Department of Management)
- Marco Michelotti (ESC Rennes, France)
Publications
- Richard Mitchell, David Taft, Anthony Forsyth, Peter Gahan and Carolyn Sutherland, 'Assessing the Impact of Employment Legislation: The Coalition Government's Labour Law Program 1996-2007' (2010) 23 Australian Journal of Labour Law 274.
Regulating labour in professional baseball in the US, Japan and Australia
Over recent decades baseball has been experienced globalisation, in turn expanding the labour market in professional baseball. This research examines labour mobility in baseball’s two largest and highest paying professional leagues: Major League Baseball (‘MLB’) in the United States and Nippon Professional Baseball (‘NPB’) in Japan. This research analyses labour mobility by looking at how it is regulated within each league through league agreements, by-laws, collective bargaining and uniform player contracts. To varying degrees in each league, this internal regulation is shaped by and engages with external regulation, notably labour law, contract law and competition law. Both the internal and external regulation of labour mobility is now shaped by globalisation and labour markets that now expand beyond the United States and Japan. Baseball is evidence that the globalisation of labour markets can be embraced, as is the case in MLB, or resisted in a protectionist manner, as occurs in NPB.
Researcher
- Matt Nichol
Publications
- Globalisation, Labour Mobility and Sports Law: The Case of Professional Baseball in the United States and Japan, Edward Elgar Publishing (forthcoming 2018).
- PhD titled ‘The Global Regulation of Labour in Professional Baseball: A Search for Labour Mobility?’ (March 2017).
- ‘Making Sense of Labour Regulation in Major League Baseball: Some Insights from Regulatory Theory’ in Michael Barry, James Skinner and Terry Engelberg, Research Handbook of Employment Relations in Sport (2016) 69.
- ‘Searching for the Holy Grail in Professional Sport: Valuing Players in Professional Japanese Baseball’ (2012) 17(33) Journal of Japanese Law 119.
Researchers
Keiji Kawai and Matt Nichol
Publications
- ‘Labor in Nippon Professional Baseball and the Future of Player Transfers to Major League Baseball’ (2015) 25(2) Marquette Sports Law Review 491.
- ‘The Transfer of Japanese Baseballers to Major League Baseball: Have Japanese Baseball Players been Internationalised?’ in (Breaden, Steele and Stevens eds) Internationalising Japan as Discourse and Practice (Routledge: London, 2014) 180.
The self-regulation of labour in Australian professional sport
Sport is viewed through many lenses but rarely is regulatory theory used. This article uses autopoietic theory and self-regulation to create a construct of how Australian sport is regulated. In the context of labour regulation this internal autopoietic system rarely enforces external regulation. In fact, most Australian sports when conducting collective bargaining operate outside the framework of Australian labour law. This research looks at when external regulation and regulatory actors have intervened in the regulation of labour in Australian sport and also current examples where there is a need for the enforcement of external regulation.
Researchers
- Matt Nichol
- Keiji Kawai
The wages of minor league baseball players and access to justice
In the world of professional baseball Major League Baseball (‘MLB’) annually generates US$9 billion in revenue. The average Major League salary is nearly US$4 million and some players earn over US$20 million per year. Minor League Baseball (‘MiLB’) is also lucrative and teams can generate millions of revenue. Yet Minor League players are paid as little as US$1,100 per month in Class Rookie and A leagues and as much as US$2,150 per month at the Class AAA level. These players are not paid for training or offseason work and are only paid during the championship seasons.
This research examines the plight of Minor League players in accessing a fair wage or a ‘living’ wage through the use of antitrust law and federal labor law on minimum wages and overtime. There are currently two class actions using both of these areas of law to challenge the Minor League pay system and class actions will be viewed in the context of access to justice.
Researcher
- Matt Nichol
Workers, their know-know and the relationships that support them
This project is a study from an Australian perspective of the distribution between employers, employees and consultants of rights to exploit intellectual property and to utilise know-how. It aims to build on theoretical debates and findings from research within economics, management, science policy, law, sociology and socio-legal studies.
The research starts with the policy of the law (which is predominantly freedom of contract with some default principles). This legal framework matters, but its impact will also depend on how its options are taken up. Take-up will involve a range of practices, such as formal contract documents, firm policies and procedures, informal relations and professional norms. In practice, distributions might be settled at various points: on hiring, during work, on the generation of knowledge, the outsourcing of work or workers, on exiting employment, or post-employment, for example in litigation.
The research will seek evidence from the participants. The management economics literature would suggest that the take-up varies with the nature of the parties (employers, employees and consultants) and the work that they are doing. Nonetheless, a useful socio-legal idea to pursue is that of 'local institutional entrepreneurs', who produce and promote models of IP management policies/contracts for adoption within a sector or community. Silicon Valley research is suggestive: could similar agents be found here and what models might they be supporting? They could be law firms, management consultants, industry associations or government agencies, for instance.
Contracts might be 'sub-optimal', so the project will propose ways the law can add to the creativity and innovation that comes from these relationships. It aims to identify policies that best suit the new conditions under which (much) knowledge is produced and utilised - mobile workers, network industries and regional clusters. It will compare the experience with legal policies in different jurisdictions overseas.
Researchers
- Chris Arup (Faculty of Business and Economics, Monash University)
- Chris Dent (Intellectual Property Research Institute, University of Melbourne),
- John Howe (Centre for Employment and Labour Relations Law, University of Melbourne)
- William van Caenegem (Faculty of Law, Bond University).
The project is funded by a three-year Australian Research Council Discovery Grant (DP0987637).
Publications
- C. Arup, "What/Whose Knowledge? Restraints of Trade and Concepts of Knowledge" (2012) 36(2) Melbourne University Law Review 369-414.
Complexity and simplicity in enterprise agreements
This project maps the evolution of enterprise agreements in Australia through the lens of complexity/simplicity. Drawing on Peter Schuck's four features of complexity - technicality, density, differentiation and uncertainty - the project develops a multi-dimensional framework to categorise the complexity of enterprise agreements.
The empirical study uses content analysis techniques to assess enterprise agreements made within the federal workplace relations system between 1993 and 2011 in the higher education and fast food sectors. The aim is to evaluate the effectiveness of the policy of simplicity by examining the extent to which these enterprise agreements have changed over the period of enterprise bargaining across the four categories of complexity. The study also explores some of the legislative and non-legislative factors that have contributed to the shifts in complexity and simplicity in these agreements.
Researcher
- Carolyn Sutherland
Publications
- Carolyn Sutherland, ‘Enterprise bargaining as a tool to reduce regulatory layering: A content analysis study’ (2014) 42 Federal Law Review 559
- Carolyn Sutherland, ‘Streamlining enterprise agreements to reduce complexity: An empirical assessment' (2016) 29 Australian Journal of Labour Law 25
- Carolyn Sutherland, ‘The problem of uncertainty: An empirical analysis of indeterminate language and ambiguous provisions in enterprise agreements’ (2016) 44 Federal Law Review 111
- Carolyn Sutherland, 'Mapping Complexity in Australian Enterprise Agreements: A Multi-Dimensional Approach' (2013) 26 Australian Journal of Labour Law 50.
- Carolyn Sutherland, 'The Elusive Quest for Simplicity: Measuring and Assessing the Readability of Enterprise Agreements, 1993 to 2011' (2013) 35 Sydney Law Review 149.
- Carolyn Sutherland, 'Making the 'BOOT' Fit: Reforms to Agreement-making from Work Choices to Fair Work' in Anthony Forsyth and Andrew Stewart (eds), Fair Work: The New Workplace Laws and the Work Choices Legacy (Federation Press, Sydney, 2009) 99.
- Carolyn Sutherland, 'All Stitched Up? The 2007 Amendments to the Safety Net' (2007) 20 Australian Journal of Labour Law 245.
- Carolyn Sutherland, 'First Steps Forward (with Fairness): A Preliminary Examination of the Transition Legislation' (2008) 21 Australian Journal of Labour Law 137.
- Carolyn Sutherland, 'Agreement-making under Work Choices: The Impact of the Legal Framework on Bargaining Practices and Outcomes' (Report for the Victorian Office of the Workplace Rights Advocate, Department of Innovation, Industry and Regional Development, September 2007).
Reconceptualising labour law
The project looks at the problems set within the labour law discipline, its evolution, its purposes etc. in a changing context of political economy and approaches to regulation. The overall ambition is to try to settle upon a reasonably stable group of problems and subject matters which deal with the concerns of labour in these changing contexts. There is an ongoing discussion about all of this at an international level, and our work has made a contribution to that debate. I imagine that there is scope for a further attempt to narrow down both the questions and purposes in the field in the future.
Researchers
- Richard Mitchell, Chris Arup (Department of BLT)
- Peter Gahan (Department of Management)
- Richard Johnstone (Griffith University)
- John Howe (University of Melbourne)
- Anthony O'Donnell (La Trobe University)
Publications
- Mitchell, R. Where Are We Going in Labour Law? Some Thoughts on a Field of Scholarship and Policy in Process of Change (2011) 24 Australian Journal of Labour Law pp. 274-301.
- Arup, C., Gahan, P., Howe, J., Johnstone, R., Mitchell, R. and O'Donnell, A. (eds.). Labour Law and Labour Market Regulation, (Federation Press, Sydney, 2006).
More recent contributions include:
- Arup, C. Updating the Labour Market Regulation Perspective on Labour Law, in Howe, J. Chapman, A. and Landau, I (eds.), The Evolving Project of Labour Law (Federation Press, Sydney, 2017) pp. 46-59.
- Mitchell, R. The Evolution of the Idea of a Labour Law Subject in Australian Legal Scholarship, in Howe, J. Chapman, A. and Landau, I (eds.), The Evolving Project of Labour Law (Federation Press, Sydney, 2017) pp.22-45.
- Howe, J. Chapman, A. and Landau, I. The Evolving Project of Labour Law in Australia, in Howe, J., Chapman A. and Landau, I. (eds.), The Evolving Project of Labour Law (Federation Press, Sydney, 2017) pp. 1-21.
International framework agreements and international labour standards
This PhD research project examines the development at the global level of international framework agreements.
The objective of this type of agreement is to secure multinational compliance with international labour standards. Their emergence has been located in the 'effectiveness crisis' of traditional regulatory methods and institutions such as the International Labour Organisation and the failure to establish a trade-labour link within the World Trade Organisation.
International framework agreements are the latest mechanism aimed at achieving multinational corporation compliance with labour standards. They are negotiated by Global Union Federations. They are viewed in the literature as a trade union created Code of Conduct and are often contrasted with NGO and corporate codes of conduct. They are presented as a superior and more legitimate instrument than codes of conduct specifically in relation to obtaining multinational adherence or compliance with international labour standards. However, only two academic studies have been undertaken on the application or effectiveness of these agreements.
This thesis aims to address the dearth of academic scholarship in this area by investigating the application of the agreements in Australian subsidiaries.
Researcher
- Anne O'Rourke
The formal and informal regulation of restaurant work in Indonesia and Australia
This project was initially funded by an Interdisciplinary Seed Grant from the University of Melbourne titled 'How are Low Protection Workers Regulated? A Pilot Study in Australia and Indonesia'. It has also been extended through funding from the Oxford University Press John Fell Fund. In-depth interviews with restaurant workers were conducted in three cities in Indonesia (Yogyakarta, Bandung and Manado) during 2013-2014. Similar interviews were also conducted in Melbourne in 2014.
The results of the project indicate the importance of collecting empirical evidence of informal regulation for gaining a complete picture of worker protection in different contexts. It also challenges assumptions about linear trajectories of progress towards the absolute dominance of state labour law and policies aimed at 'formalising the informal'.
Researchers
- Petra Mahy and Richard Mitchell (Department of Business Law and Taxation, Monash)
- Sean Cooney, John Howe, Maria Azzurra Tranfaglia (Melbourne Law School)
- Martina Boese (La Trobe University).
Publications
- P. Mahy, 'The Functional Approach in Comparative Socio-Legal Studies: Reflections Based on a Study of Plural Work Regulation in Australia and Indonesia', International Journal of Law in Context 12(4) (2016): 420-436.
- P. Mahy, R. Mitchell, S. Cooney and J. Howe, 'The Plural Regulation of Work: A Pilot Study of Restaurant Workers in Yogyakarta, Indonesia'. Research Report, (Centre for Employment and Labour Relations Law, University of Melbourne, 2017)
- P. Mahy, R. Mitchell, M. Boese, J. Howe and M.A. Tranfaglia, 'What is Actually Regulating Work? A Study of Restaurants in Indonesia and Australia' (forthcoming book chapter, 2017).
The origins and development of labour regulation in the Asia-Pacific region
This is a project employing both quantitative and qualitative methodological approaches. The first part of the project was completed utilising the quantitative ‘Labour Regulation Index’ developed by scholars at Cambridge University. The project has now been expanded with the development of a substantially revised index (titled the ‘Worker Protection Index’) which we believe is more adaptable to the measurement of worker protection across countries in the Asia-Pacific region. This second stage of the project is still ongoing, and will continue to be rolled out across a wider range of countries in this region. The project is also using qualitative legal history approaches to compare the evolution of labour law across different national contexts.
Researchers
- Richard Mitchell, Carolyn Sutherland, Petra Mahy (Department of Business Law and Taxation, Monash University)
- Sean Cooney (Melbourne Law School)
- Anthony O’Donnell (La Trobe); Peter Gahan (formerly Management at Monash, now Management and Marketing University of Melbourne)
- Gordon Anderson (Victoria University of Wellington, NZ)
- Andrew Stewart (Adelaide Law School)
- Lingfeng Mao (former Ph. D student, Department of Business Law and Taxation, Monash University).
Publications
- S. Cooney, P. Gahan and R. Mitchell, 'Legal Origins, Labour Law and the Regulation of Employment Relations' in M. Barry and A. Wilkinson (eds.), Research Handbook of Comparative Employment Relations, Edward Elgar, Cheltenham, 2011, pp. 75-97.
- M. Jones and R. Mitchell, 'Legal Origin, Legal Families and the Regulation of Labour in Australia' in S. Marshall, R. Mitchell and I. Ramsay (eds.), Varieties of Capitalism, Corporate Governance and Employees, Melbourne University Publishing, Melbourne, 2008, pp. 60-94.
- G. Anderson, P. Gahan, R. Mitchell and A. Stewart, 'The Evolution of Labor Law in New Zealand: A Comparative Study of New Zealand, Australia and Five Other Countries' (2011) 33 Comparative Labor Law & Policy Journal pp. 101-134.
- P. Gahan, R. Mitchell, S. Cooney, A. Stewart and B. Cooper, 'Economic Globalization and Convergence in Labor Market Regulation: An Empirical Assessment' (2012) 60 American Journal of Comparative Law pp.703-741.
- S. Cooney, P. Mahy, R. Mitchell and P. Gahan, ‘The Evolution of Labour Law in Three Asian Countries: An Introductory Comparative Study’ (2014) 36 Comparative Labor Law & Policy Journal pp. 23-68.
- R. Mitchell, P. Mahy and P. Gahan, 'The Evolution of Labour Law in India: An Overview and Commentary on Regulatory Objectives and Development' (2014) 1 Asian Journal of Law and Society pp 413-453.
- R. Mitchell, P. Gahan, A. Stewart, S. Cooney and S. Marshall, 'The Evolution of Labour Law in Australia: Measuring the Change' (2010) 23 Australian Journal of Labour Law pp. 61-93.