Our researchers publish in a wide range of national and international publications, and regularly contribute to public commentary on key law issues.
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The Labour, Equality and Human Rights (LEAH) Research Group focuses on collaborative research in the fields of labour relations and employment law, equality law, and human rights, particularly in relation to the impact of business on human rights.
Our aim is to undertake high quality research and work collaboratively with colleagues around the world in law, business and other social science disciplines to develop cross-disciplinary research that builds scholarly knowledge in the field and contributes to legal and policy debate. We employ a number of mechanisms to achieve this including:
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.
This DPhil project focuses on 'Australia's Regulatory Framework of Work/Care Supports and the Worker/Carer: A Gender Justice Perspective'.
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.
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.
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.
This research project analyses the relationship between employment and social security in the protection of vulnerable workers.
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.
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.
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.
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.
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.
This project examines the various ideas/concepts of labour as a socially and legally regulated concept since the beginning of stratified/hierarchical civilised states.
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.
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.
This MPhil project focuses on ‘Indirect Sex Discrimination under Australian discrimination law - Assessing the Onus of Proof and the Reasonableness Test’.
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.
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.
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).
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.
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.
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.
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.
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.
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.
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.
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:
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).
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.
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.
The approach presently taken in this project is a review of secondary sources.
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?
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.
The analysis will be traditional legal doctrinal with an underpinning of philosophical analysis, particularly in the more speculative final section.
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.
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.
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.
How can public procurement initiatives be designed effectively to promote and secure better working conditions in transnational supply chains?
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?
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.
Preliminary findings from this research have been presented at the following academic and practitioner workshops:
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.
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.
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.
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.
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.
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.
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.
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.
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.
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:
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.
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.
Keiji Kawai and Matt Nichol
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.
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.
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.
The project is funded by a three-year Australian Research Council Discovery Grant (DP0987637).
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.
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.
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.
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'.
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.
This Series is designed to provide researchers with the opportunity to gain feedback on ‘work in progress’ papers from a broad audience, prior to final submission to a peer-reviewed journal.
We invite the submission of papers for publication in our Working Paper Series in the following areas:
You can submit 'work in progress' papers to receive feedback from a broad audience, prior to final submission of your paper for publication in a refereed journal. For example, conference and seminar papers, papers arising from higher degree by research studies, and high-quality undergraduate and postgraduate student essays will be considered for publication in the LEAH Working Paper Series.
Papers can be submitted by email to Professor Carolyn Sutherland
Working Paper No 22
The Evolution of the Idea of a Labour Law Subject In Australian Legal Scholarship: (and What was Regulating 'Labour' or 'Work' before Labour Law as we know it)? (pdf, 256 kb)
Working Paper No 19
Evolution of the corporate form in Indonesia: an exploration of legal innovation and stagnation (pdf, 470 kb)
Working Paper No 18
The evolution of labour law in India: an overview and commentary on regulatory objectives and development (pdf, 395 kb)
Richard Mitchell, Petra Mahy and Peter Gahan
Working Paper No 17
The impact of 'good faith' obligations on collective bargaining practices and outcomes in Australia, Canada and the USA (pdf, 255 kb)
Working Paper No 16
Where are we going in labour law? Some thoughts on a field of scholarship and policy in process of change (pdf, 131 kb)
Working Paper No 15
The evolution of the joint stock company to 1800: a study of institutional change (pdf, 272 kb)
Working Paper No 14
Continuous disclosure: testing the correspondence between state enforcement and compliance (pdf, 139 kb)
Working Paper No 13
Third party intervention reconsidered: new roles for Australian industrial tribunals (pdf, 289 kb)
Anthony Forsyth & Holly Smart
Working Paper No 12
Workplace agreement-making: legal rules and institutional processes (pdf, 136 kb)
Working Paper No 11
Directors' liability for corporate faults and defaults – an international comparison (pdf, 461 kb)
Working Paper No 10
A history of company law in colonial Australia: legal evolution and economic development (pdf, 227 kb)
Working Paper No 9
Insolvency law: a comparative analysis of the preference tests in the Hong Kong Special Administrative Region (HKSAR) and Australia (pdf, 128 kb)
Working Paper No 8
Worker representation in Australia: moving towards overseas models? (pdf, 226 kb)
Dr Anthony Forsyth
Working Paper No 7
The use of civil sanctions for breaches of corporate law (submission to the Department of Treasury's review of sanctions in corporate law) (pdf, 82 kb)
Working Paper No 6
Criminal risk in corporate practice - balancing duties and risk while ensuring corporate compliance as an in-house lawyer (pdf, 104 kb)
Leon Zwier and Lucy Kirwan
Working Paper No 5
Social responsibility, machiavellianism and tax avoidance: a study of Hong Kong tax professionals (pdf, 150kb)
William Shafer and Richard Simmons
Working Paper No 4
Corporate social responsibility in Australia - a review (pdf, 141kb)
Associate Professor Helen Anderson and Ingrid Landau
Working Paper No 3
Corporate accountability, third parties and class actions (pdf, 160kb)
Associate Professor Vince Morabito
Working Paper No 2
Australia's spam legislation: a modern-day King Canute? (pdf, 200kb)
Working Paper No 1
The new corporate law (pdf, 223kb)
Professor Stephen Bottomley and Dr Anthony Forsyth
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