Summary

This research project analyses the relationship between employment and social security in the protection of vulnerable workers.

Researchers

• Chris Arup

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

• 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.

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

• Associate Professor Dominique Allen
• Ms Adriana Orifici

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)

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 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

• Ingrid Landau

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).

Summary

This MPhil project focuses on ‘Indirect Sex Discrimination under Australian discrimination law - Assessing the Onus of Proof and the Reasonableness Test’.

Researcher

• Quynh Ngoc Vu

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

• Dr Dominique Allen
• Professor Carolyn Sutherland

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.

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

• Dr Dominique Allen

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

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

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:

1. How are collective labour disputes defined and regulated under the formal legal systems of each country?
2. How effectively do these systems operate in practice and what are the major conditions contributing to the relative success or failure of such systems?
3. 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 (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).

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.

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

• Dr Michael Duffy
• Dr Han-Wei Liu
• Toan Le

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: 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

• Dr Dominique Allen
• Ms Adriana Orifici

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.

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.
• 4^th 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.

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 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

• Ms Adriana Orifici

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

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.

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

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.

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).

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.

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

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).

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.