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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.
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