Copyright (c) 2009 All rights reserved. http://works.bepress.com/adfrazer Recent documents in Dr. Andrew D. Frazer en-us Sun, 04 Jan 2009 03:26:56 PST 3600 http://works.bepress.com/adfrazer/4 http://works.bepress.com/adfrazer/4 Tue, 27 May 2008 15:49:03 PDT Australia, in common with many other industrialised countries in the 1990s, has experienced a shift towards individualism in labour law and labour market regulation. This has been part of a wider change as governments have opened up domestic markets to international competition, while rethinking the protections provided by the welfare state. Business has demanded deregulation of all kinds but particularly in the labour market, with the aim of achieving greater flexibility and efficiency in the utilisation of labour. The debate over the reform of industrial relations institutions and processes in Australia has been conducted in terms of 'enterprise bargaining', a diffuse term which means (depending on the position of the speaker) either collective bargaining involving national unions but with outcomes tailored to specific workplaces, or firm-specific bargaining by internal enterprise-based parties with minimal involvement from 'external' bodies such as unions. During the last decade the debate has moved from an assumption of collective bargaining with union involvement, to the view that agreements should be primarily individual in nature. Legislation has mirrored this debate, with increasing emphasis being given to individual agreements. Hence the legal relationship between collective and individual agreements is of major importance in contemporary Australian labour law. A. D. Frazer http://works.bepress.com/adfrazer/3 http://works.bepress.com/adfrazer/3 Tue, 27 May 2008 15:48:59 PDT The decentralisation of production by various means has been a major feature of Australian labour law and relations since the 1980s. Since the recession of the early 1980s, many businesses have pursued financial savings through outsourcing of labour. Many companies did so firstly as a means of focusing on their core business activities and shifting to program-based accounting systems. More recently it has been part of the process of continuous cost-cutting and downsizing, associated with the preoccupation with shareholder value. Decentralisation is usually accompanied by reduction of the internal workforce and intensification of work remaining within the business. These trends are not surprising given the high degree of foreign ownership and control of large business in Australia, and the exposure of the Australian economy to diversification, deregulation and global competition in the last two decades. Decentralisation was in fact championed by conservative governments which began outsourcing ("contracting out") or privatising government businesses and services from the late 1980s. This paper examines recent Australian Law concerning productive decentralisation. The paper was prepared as a national report for the XVIII World Congress of Labour and Social Security Law, Paris, 5-8 September 2006, on behalf of the Australian Labour Law Association, with contributions by Mr Toby Borgeest. A. D. Frazer http://works.bepress.com/adfrazer/2 http://works.bepress.com/adfrazer/2 Tue, 27 May 2008 15:48:56 PDT This chapter seeks to apply 'new' regulation theory to industrial tribunals, in par-ticular the functions and powers of the Australian Industrial Relations Commission (AIRC) in relation to enterprise bargaining and the making of collec-tive workplace agreements. In a conventional economic sense, industrial tribunals have always been regulatory agencies, with their awards operating as labour standards setting minimum pay and conditions. Since the 1990s, though, the major work and impact of industrial tribunals has changed from making awards to the facilitation and approval of agreements as part of the process of labour market "deregulation." As (at the time of final revision of this paper) it now appears that any powers of the AIRC to supervise agreement-making will shortly and finally be abolished, we are in a position to review the particular ap-proach adopted for the regulation of workplace bargaining over the last decade. If industrial tribunals will no longer have a regulatory role to play in the setting of conditions by agreements, the opportunity also arises for us to consider what new type of institution might now be appropriate for the inevitable regulation which occurs within the labour market. A. D. Frazer http://works.bepress.com/adfrazer/1 http://works.bepress.com/adfrazer/1 Tue, 27 May 2008 15:48:53 PDT The industrial power contained in section 51(xxxv) of the Australian Constitution gives the Federal Parliament power to make laws with respect to 'conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State.' Throughout the history of the Commonwealth, this power has remained one of the most contentious and litigated clauses in the Constitution. Because of the constitutional limits on the manner in which national legislative power can be exercised in this area, the institutions and processes of the Federal system of conciliation and arbitration have remained a consistent focus of public debate. The industrial power is unusual in not giving Parliament direct power to legislate outcomes; rather it requires use of a particular method (conciliation and arbitration) and then only in certain circumstances (interstate industrial disputes). Since 1904 national industrial relations policy has relied on implementation of the industrial power through a permanent and independent arbitration tribunal (from 1904 to 1956 the Commonwealth Court of Conciliation and Arbitration; between 1956 and 1988 the Commonwealth Conciliation and Arbitration Commission; and since 1988 the Australian Industrial Relations Commission). Yet over the last decade an institution considered one of the more enduring features of Australia's federated history has been challenged by demands for reduction of industrial regulation in the interest of efficiency and competitiveness. A. D. Frazer