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This article explores the enactment of a right to strike in the Australian federal industrial relations system in order to ascertain what the legislation reveals about the commitment of successive federal governments to the principles of voluntary collective bargaining. The article reflects briefly on Australia’s international obligations to respect the right to strike under ILO and UN Conventions before outlining the main features of protected industrial action under the federal system from 1993 through to the passage of the Fair Work Act 2009 (Cth). The discussion reveals that the right to strike in Australia is very limited, particularly with respect to the content and level of agreement making that may be supported by protected industrial action. Focusing on multi-enterprise agreement making in particular, the article concludes that the current legislative regime does not permit industrial parties to determine their own industrial agendas and support those agendas through protected industrial action.
The Workplace Relations Amendment (Work Choices) Act 2005 (Cth) effects significant changes to the provisions of the Workplace Relations Act 1996 (Cth) governing industrial action in the federal workplace relations system. This paper examines these changes, situating them in the context of the historical relationship between law and industrial action in Australia, and evaluating the impact of the changes on the balance of power in voluntary collective bargaining. The paper argues that the Work Choices changes have elevated the power of employers, and protection of third party welfare, above access to the right to strike for employee participants in collective bargaining.
As the concluding chapter of this volume, this chapter provides an overview of the unifying themes and challenges identified across the contributions within the volume, with a particular focus on the country studies. The chapter demonstrates that in all the country studies there is, to one degree of another, conflict over the boundary lines of competition and labour regulation, and latent conflict between their underlying objectives and regulatory approaches. However resolution of this conflict varies considerably across the jurisdictions studied, and the chapter draws out the mechanisms used both to manage the conflict, and to regulate forms of economic co-ordination within those jurisdictions.
In common with many developed world countries, the regulation of labour markets in Australia has been characterised by a divide between workers governed by labour laws (employees) and workers governed by commercial laws, including competition law and policy (everyone else). This divide has meant that access to collective bargaining and the right to strike has largely only been accessible by traditionally employed workers. However, for many decades, Australian competition regulation has included a mechanism to enable self-employed workers and other businesses to seek permission from the competition regulator to engage in collective activities. The express statutory basis for permitting proposed conduct has been on the basis that it will produce ‘net public benefit’ – ie, produce more positive outcomes than harmful ones. In 2021, in recognition of the widespread public benefit that can be gained from collective action, the need for prior permission was removed, and a class exemption for small business collective bargaining was declared. This chapter examines the Australian competition law regime, and the regulation of workers and small businesses, with particular attention to the development and operation of the ‘public benefit’ exemption for collective bargaining.
As scholars and policymakers around the world seek a systematic approach to the question of 'gig work,' one of its regulatory dimensions – the intersection of labor and competition law – points toward a deeper reconceptualization of the conventional legal and economic categories typically brought to bear upon it. A comparative approach to the question of gig work further reveals the variety and contingency of background assumptions that are often overlooked in the context of domestic policy debates. By combining a detailed comparative doctrinal survey of the regulation of non-employee workers in domestic competition law systems with a set of essays reframing the underlying questions raised – in terms of international legal frameworks, freedom of association norms, alternative approaches to law and economics, and more – The Cambridge Handbook of Labor in Competition Law moves the debates over the fissured workplace and the labor – competition law intersection forward in novel ways.
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