Judicial reasoning in Australian labour law cases
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.
- 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.
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.
- 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 http://www5.austlii.edu.au/au/journals/MelbULawRw/2018/19.html