Australian Journal of Labour Law Volume 30 Part 2

Articles

Implications of the Victorian Charter of Human Rights and Responsibilities for subject matter limits on public sector collective bargaining — (2017) 30 AJLL 87

Morgan Nyland

Victorian public sector employees and employers cannot collectively bargain regarding the number and identity of persons to be employed, the terms of appointment, the number or identity of persons to be dismissed on redundancy grounds, or the working conditions of senior public servants. This inability arises from constitutional constraints on the Commonwealth's capacity to control a state public service, and the limited referral (excluding specified subjects) by Victoria of its industrial powers to the Commonwealth. Drawing on comparative human rights jurisprudence, this article argue that the right to freedom of association in the Victorian Charter of Human Rights and Responsibilities confers an enforceable right to collectively bargain in respect of the excluded matters. The article also demonstrates that rights analysis has significant implications for work relationships in a broad range of areas, which remain unexplored by domestic labour law scholars and practitioners.

Shall I compare thee to a fitter and turner? The role of comparators in pay equity regulation — (2017) 30 AJLL 113

Meg Smith and Andrew Stewart

In the second major test of the equal remuneration provisions of the Fair Work Act 2009 (Cth), the Fair Work Commission has rejected the reasoning previously relied upon by Fair Work Australia to deliver significant wage increases to the social and community services sector. In a preliminary ruling in a case involving the early childhood education and care sector, the commission has determined that applications lodged under Part 2-7 of the Act may no longer rely on gender-based undervaluation as a means of demonstrating that the objective of equal remuneration for men and women workers is not met. Applications must reference a comparator which must be of the opposite gender. For an order to be made in favour of a group of female employees, an applicant must now identify a group of male employees, doing work of equal or comparable value, who are receiving higher remuneration. This latest decision continues a longstanding and peripatetic contest, evident in Australian and international jurisdictions, about whether comparative and opposed assessments are required in the pursuit of pay equity. Rather than requiring equality for women to be claimed against a masculinised benchmark, we argue that undervaluation needs to form the cornerstone of any meaningful approach to addressing equal remuneration.

Nothing implied: Construction as a means of curbing excessive use of power in employment contracts — (2017) 30 AJLL 137

Paul M O'Grady QC

Lawyers regularly review their precedents to ensure that they preserve the power employers have over their employees. They do so knowing that Australian law imposes a heavy burden on those who seek to constrain the excessive use of such power through the implication of terms into the contract, either at law or in fact. However, the Australian courts, at least at the intermediate appellate level, have shown a preparedness to constrain the exercise of an unfettered discretion conferred upon the employer to determine bonus payments. This article draws on the principles upon which such constraints are built and recent developments in Canada and the United Kingdom to consider the potential application of general principles of construction of contracts to protect against abuse of power by the employer over the employee.

A red-tape band-aid or a solution? Lessons from the United Kingdom's Gangmasters (Licensing) Act 2004 for temporary migrant workers in the Australian horticulture industry — (2017) 30 AJLL 158

Sayomi Ariyawansa

Addressing the systematic exploitation of migrant workers in the agriculture, horticulture and shellfish gathering industries has been the subject of specific reforms in the United Kingdom. This article concerns whether the Gangmasters Licensing Authority (GLA) provides a useful model for introduction in Australia, focusing on the use of migrant workers in the horticulture industry. This article reviews evaluations of the GLA and argues that the GLA model may be an appropriate addition to the Australian labour law regulatory framework. However, these evaluations disclose certain key limitations of the model. If a licensing scheme is introduced in Australia, it should be introduced with necessary modifications and other complementary strategies to enable it to overcome these limitations.

Scoping reasonable adjustments in the workplace: A comparative analysis of an employer's obligation to accommodate a worker's disability under Australian and Canadian laws — (2017) 30 AJLL 185

Emma Purdue

This article examines the limits of an employer's obligations to make reasonable adjustments for a worker with a disability in both Australia and Canada, by reference to the International Convention on the Rights of Persons with Disabilities. Australian law has traditionally been less generous than Canadian law in meeting the international objectives of full and equal participation and inclusion for people with disabilities in the workplace. However, there are signs of change in Australia. Australian law has shifted — and may be continuing to shift — from its formerly narrow focus on technological aids to enable people to carry out specified contractual obligations, to a much more nuanced understanding of accommodating people with disabilities. It is plausible that, in future, Australian employers may be required to redeploy or radically redesign roles to accommodate disabled workers, in certain circumstances.

Response

The history of academic research in Australian labour law: A response to Richard Naughton

Richard Mitchell