The Federation Press

Labour Law and Labour Market Regulation

Essays on the construction, constitution and regulation of labour markets

Overview

The traditional boundaries of labour law are becoming outmoded in a modern world in which active labour market participants vastly outnumber “employees”, and the world of work extends way beyond the workplace gate. There is convergence with labour market regulation. The contract of employment remains central but is no longer the sole object of study.

Labour Law and Labour Market Regulation is a state of the art presentation of the latest Australian scholarship and research surrounding this seismic change. Its 38 chapters reflect the dramatically different industrial, social, political and legislative contexts in which the law now operates and the intellectual revolution this is generating.

The latest theoretical thinking and empirical findings are gathered together in four parts:

  • the varying purposes of regulation;
  • the different institutions and technologies of regulation;
  • the active role regulation plays in constituting labour markets; and,
  • the regulation of the processes by which employment rights and obligations are determined.

Individual chapters contain studies of regulation within prescriptive government schemes, contract networks, specialist labour markets, the intersection between work and family, enterprise policies and practices, and the courts and tribunals.

For academics, the book provides much material to enliven and diversify their courses. It advocates fresh intellectual approaches which take account of international scholarship and, while mindful of the latest legislative changes, it adopts a long-range, multi-locational and pluralist view of Australian labour law.

For practitioners, the book provides insights into areas that are,as arbitration declines, becoming increasingly important to their clients’ interests. The most recent legislation and jurisprudence is discussed in many chapters including discrimination, dismissals, health and safety, immigration, social security, franchise, volunteer and contract law.

Reviews

Together this collection provides a comprehensive overview of the mechanisms through which paid work is regulated in Australia. In doing so it moves beyond a discussion of labour law in isolation and attempts to develop a broader understanding of the way in which legal regulation creates, facilities and encourages particular labour market activity. - Labour History, No 96, May 2009

...the book is comprehensive and up-to-date and will be of great interest to policy makers, students, academics and (to a slightly lesser extent) practitioners...the book makes a valuable contribution to labour law scholarship and how regulatory theory can provide a useful tool for a broader understanding of labour law. - (2008) 28 Qld Lawyer 193

The book is both concrete in its inquiry and theoretically sophisticated in it analysis. The contributors contemplate the relevance of such concepts as ’legal pluralism’ Luhmann’s system theory, and Sen’s work on human capabilities. At the same time the book offers theoretical contemplations, the book is a remarkable collection of thirty-seven articles on topics ranging from general theories on legislative design and infrastructure to higly concrete topics such as the administration of unemployment and the problems of voluntary, undocumented and household work.
The book should also be interesting to those who are interested in the evolution of regulation and institutional design in general and for anyone studying the areas of dismissals, collective bargaining, discrimination, health and safety, immigration, social security and the future of social politics.
- Comparative Labor Law & Policy Journal, Vol 29 No 4, Summer 2008

The book is unquestionably a landmark in Australian labour law scholarship and, in addition to this, will influence debates in many other countries over the future of labour law. It will also make an important contribution to interdisciplinary legal research, particularly in the area of regulation. - Simon Deakin, Melbourne University Law Review, Vol 31 - 2007

... a scholarly work of formidable proportions ... [a] comprehensive and erudite collection.
... this volume is essential reading for both academics and practitioners who want to really expand their understanding of employment relations law and the regulatory approach. ... This is a work that will be read and re-read, discussed and consulted for a long time to come. - Labour & Industry, Vol 18 No 1, August 2007

What is ‘labour law’? We used to know the answer to that question. The real issue this book confronts is whether we still do, or ever can again.
This is a big book ... about big ideas. ... Not all of the essays in this collection spend their time at [the] level of theoretical abstraction and the contribution of many of them is to reveal the complexity and pace of change in many aspects of the new labour law dispensation in Australia. Here the book richly delivers on its promise to bring new developments in regulatory theory to the domain for labour law. - Australian Journal of Labour Law, Vol 20 (2007)

The Federation Press has once again produced a fresh alternative to the standard textbook. This book is a collection of papers organised around the theme of how the law regulates labour markets in Australia. Divided into 5 parts, the book allows the editors to attempt to develop an underlying theory of regulation of the labour market, in itself, a significant endeavour.
Taken as a whole, the book is not really a practitioner text. Rather, it provides a comprehensive analysis of the evolution and regulation of the labour market in Australia. In addition, it provides useful analysis of the policies and theory behind labour market regulation. ...
On the whole, the book would make a useful addition to those interested in understanding how the Australian labour market has evolved and how it has been, and is being, regulated. Those with an interest in policy development and regulatory theory would also find the book a worthwhile read. - Hearsay (Jnl of the Bar Association of Qld), Issue 16: March 2007

Table of Contents

Introduction

Labour Law and Labour Market Regulation
Richard Mitchell and Christopher Arup

Part One - Purposes of Labour Market Regulation

Contextual Factors Shaping the Purpose of Labour Law: A Comparative Historical Perspective
Michael Quinlan
Protectionism, Common Advocacy and Employer Interests: Business Contribution to Labour Market Regulation in Australia
Michael Barry, Marco Michelotti and Chris Nyland
Regulating Bargaining and Contracting Systems in Australia
Margaret Lee
Protecting and Promoting Small and Medium Enterprises: A Role for Labour Law in the New Labour Law Era?
Karen Wheelwright
A Regulatory Analysis of the Sex Discrimination Act 1984 (Cth): Can it Effect Equality or Only Redress Harm?
Belinda Smith

Part Two - Labour Market Institutions and Regulatory Techniques

The Repertoires of Labour Market Regulation
Peter Gahan and Peter Brosnan
“Deregulation” of Labour Relations in Australia: Towards a More “Centred” Command and Control Model
John Howe
“Money and Favours”: Government Deployment of Public Wealth as an Instrument of Labour Regulation
John Howe
Exclusionary Self-Regulation: A Critical Evaluation of the AMMA’s Proposal in the Mining Industry
Sean Cooney
Cross-Jurisdictional Regulation of Commercial Contracts for Work Beyond the Traditional Relationship
Igor Nossar
Industrial Tribunals and the Regulation of Bargaining
Andrew Frazer
Regulating Dismissals: The Impact of Unfair Dismissal Legislation on the Common Law Contract of Employment
Carolyn Sutherland
Trade Unions as Regulators: Theoretical and Empirical Perspectives
Peter Gahan
The Role of Employment Agencies in Structuring and Regulating Labour Markets
Elsa Underhill

Part Three - Constituting the Labour Market

Constituting and Regulating the Labour Market for Social and Economic Purposes
John Howe, Richard Johnstone and Richard Mitchell
Immigration Control and the Shaping of Australia’s Labour Market: Conflicting Ideologies or Historical Imperatives?
Mary Crock and Leah Friedman
Re-Inventing Unemployment: Welfare Reform as Labour Market Regulation
Anthony O’Donnell
Tax and the Regulatory Conception of Labour Law
Cameron Rider
Which Law is Laggard? Regulation and the Gaps Between Labour Law and Social Security Law
Terry Carney, Gaby Ramia and Anna Chapman
Reproducing Law’s Worker: Regulatory Tensions in the Pursuit of “Population, Participation and Productivity”
Rosemary Owens
Regulating at the Work-Life Boundary: Towards Re-Integrating the Household into Labour Market Policy
K Lee Adams and Chris Geller
Regulating Family through Employee Entitlements
Anna Chapman
Negotiating Regulation: The State, the Professions and the Dilemma of Autonomy
Carla Lipsig-Mummé
Constitutive Regulation of the Firm: Occupational Health and Safety, Dismissal, Discrimination and Sexual Harassment
Richard Johnstone and Nicky Jones

Part Four - Labour Market Status, Forms of Engagement, and Rights and Obligations in Work Relationships

Participation, Exchange, and Rights and Obligations in Labour Markets and Work Relationships
Anthony O’Donnell and Richard Mitchell
A Generic Model of Regulating Supply Chain Outsourcing
Michael Rawling
An Exploration of Control in the Context of Vertical Disintegration
Shelley Marshall
Regulating Unequal Work Relationships for Fairness and Efficiency: A Study of Business Format Franchising
Joellen Riley
Good Faith and Fair Dealing at Work
Andrew Stewart
Regulating Collective Rights in Bargaining: Employees, Self-Employed Persons and Small Businesses
Shae McCrystal
Regulating Occupational Health and Safety in a Changing Labour Market
Richard Johnstone
The Regulation of Human Capital: Public Frameworks and Firm-Based Policies
Christopher Arup
Job Security Laws: Constituting “Standard” and “Non-Standard” Employment
Joo-Cheong Tham
Unauthorised Workers: Labouring Beneath the Law?
Graeme Orr
The Legal Regulation of Volunteer Work
Jill Murray

Conclusion

Labour Law and Labour Market Regulation: Current Varieties, New Possibilities
Christopher Arup
Index

Of interest...