Marilyn Pittard

The rich panoply of sources of labor law: national, regional and international

To say that labor rights, obligations and entitlements as between employer and employee are many and varied is an understatement. The content and nature of these rights and duties may differ dramatically between countries and regions, public and private sectors, industry and firm, contemporary times and bygone centuries, to name just a few. The sources of labor law, though, can be corralled more readily into categories – collective and individual agreements, statutes, constitutions, international laws, custom and policy, codes and guidelines. These sources are addressed in this chapter, which focuses on the interventions of legislative and other kinds; into the unconstrained operation of the relationship of employee and employer in the market. Very few countries today have a totally unregulated employment relationship. Indeed the spectrum of the regulation ranges from minimal – perhaps enough to satisfy health and safety and other essentials – to very prescriptive. Within countries the place on the spectrum may have fluctuated, sometimes considerably, over the years with changes in thinking, such as free market or neo-liberal ideologies or modern socialist approaches. As with any market, and in a simplified model of the complexities of reality, if labor markets were to be entirely free of regulation, the outcomes would clearly vary considerably according to a range of factors. An individual worker might have a substantial degree of bargaining power if her or his skills were relatively rare, if she or he had knowledge of market opportunities, if the costs of obtaining that information were low, if travel to the source of work was financially viable and so on. But likewise the individual worker may have very little power to negotiate terms and conditions (including as to safe systems of work), and would have to accept what an employer in the market offered, if he or she were just one of a large number of workers with similar skills, job mobility, location mobility and so on. By way of contrast, on the other hand, it could be postulated that a system may provide high degrees of regulation of the actual terms and conditions of employment, directing where workers could work, what occupations particular people could pursue, conditions in which people worked, and so on. This system would produce a very different outcome for a particular worker than the other extreme, however that outcome is measured. These shorthand descriptions of aspects of systems embody, in a somewhat caricatured way, very different conceptions of the role of the individual in their capacity as a worker in an economic activity and the role of an employer requiring labor services in its business.

Reflections on the Commission’s Legacy in Legislated Minimum Standards

This article examines the extent to which the labour standards adopted by the Australian Industrial Relations Commission and its predecessors have left a ‘legacy’ in the new legislated standards and dismissal protection in the Fair Work Act 2009. The Commission’s ‘community standards’, developed from ‘test cases’ and piecemeal from other decisions, will be explored, together with factors that had an impact on those decisions, including: the very nature of test cases; economic, social and public interest considerations; the federal statute; State legislative developments; and international influences. Case studies involving paid annual leave and standard hours of work will illustrate the Commission’s approach in its decision-making. Questions are posed as to whether the Commission has left guiding principles to achieve economic and social justice and assist future policymakers and regulators when they face similar decisions; and why some Commission standards were not legislated but may remain in awards.