Ron McCallum

Grafting a New Collective Labour Law for Australia

* Blake Dawson Waldron Professor in Industrial Law, the University of Sydney. This, the Third Whitlam Lecture, was delivered to the Trade Union Education foundation at Newcastle on Wednesday, 14 May 1997. The writing and the giving of this lecture would not have been possible without the support and encouragement from my wife Dr Mary Crock. I also received enormous support from Professor Russell Lansbury. Thanks are also due to my valuable colleague Ms Therese MacDermott and my thoughtful assistant Mr Joel Butler.

Australian Labour Law after the Work Choices Avalanche: Developing an Employment Law for our Children

In late 2005, the Australian Parliament enacted the Workplace Relations Amendment (Work Choices) Act 2005 (Cth), which established a new legal regime for federal labour law known as the Work Choices laws. These laws came into force on 27 March 2006. The major argument enunciated in this address is that in their present form, the Work Choices laws are unsustainable and will be altered and softened in six to eight years. First, these new laws are examined and it is concluded that they elevate managerial prerogatives to new heights over and above fair outcomes. Second, the reasons given for the unsustainability of these laws are: the opposition of State and Territory governments; their prescriptive nature; the failure of employers to engage with them; and because the collective bargaining provisions contravene international labour law. Third, some features of a balanced set of post-Work Choices labour laws are examined, including collective bargaining, a minimum wage, safety, compensation, and discriminatory and unfair terminations. Finally, it is suggested that a truly national employment law code could be created through the enactment of cooperative federal and State legislation.

The New Millennium and the Higgins Heritage: Industrial Relations in the 21st Century

* Ronald McCallum is the University of Sydney’s Blake Dawson Waldron Professor in Industrial Law, 173-5 Phillip Street, Sydney, NSW 2000. This paper was the keynote address at ’A New Province for Law and Order?’, the 8th National Convention of the Industrial Relations Society of Australia in Hobart, and was delivered on Friday, 16 February 1996. I wish to thank Alan Berendsen, Gary Edmond, Therese MacDermott, Kate O’Rourke and Clair Turner for assisting me with the research and proofing of this paper. I wish to especially thank my wife, Dr Mary Crock, for her invaluable assistance and counsel.

Australian workplace health and safety regulatory approaches to prosecution: Hegemonising compliance

Enforcement of workplace health and safety regulations remains a contentious matter, especially in the context of Australia’s project to harmonise commonwealth, state and territory workplace health and safety legislation. This article presents the findings of a qualitative study investigating policies and practices associated with prosecution and enforcement in two Australian regulatory agencies, prior to harmonisation. The article finds that by 2008, both regulators had taken significant steps to render their enforcement policy and practice, particularly in relation to prosecution, more transparent and accountable to employers and the wider community. They produced detailed and publicly available enforcement policies and prosecution guidelines, reconfigured the work of the general inspectorate (confining it to routine workplace health and safety surveillance and the provision of education and advice to employers) and established a separate administrative unit responsible for investigation and prosecution. Both regulators structured prosecution processes to achieve explicitly technocratic outcomes, namely, enhanced efficiency, objectivity, timeliness, consistency and quality improvement in investigations. These processes went hand in hand with a dramatic decline in the use of prosecution in New South Wales from 2002 to 2010, and an uneven but marginal increase in Victoria for the same period. The article concludes by discussing what these findings might imply for workplace health and safety regulators’ approaches to prosecution and for deterrence under Australia’s new harmonised regime.

The Role of the Judiciary in Occupational Health and Safety Prosecutions: Institutional Processes and the Production of Deterrence

Drawing on interviews with judicial officers in two Australian states, this article examines the role of judges in sentencing occupational health and safety offenders. Specifically, it focuses on the deterrent impact of occupational health and safety prosecutions, including judges’ understanding of deterrence and the judicial role in deterring serious breaches of occupational health and safety legislation. Judges thought that occupational health and safety prosecutions had some deterrent impact on prosecuted offenders, but were sceptical as to whether prosecutions led to lasting improvements in workplace safety, both in relation to the prosecuted offender and the wider community. Judges’ scepticism related to the fact that they viewed deterrence as a complex process involving a range of social institutions, including occupational health and safety regulators and the media. Further, the judiciary’s influence over sentencing outcomes was constrained by key elements of the judicial role, including the requirement that judges remain impartial and detached from other actors in the prosecution process. However, judges do play an important role in preventing workplace deaths and injuries, especially in relation to the constitutive or communicative effects of prosecution. By sentencing offenders, the judiciary acts as a key component in institutional processes that construct employers as bearing primary responsibility for the prevention of workplace deaths and injuries.

Participating in Political and Public Life: A Challenge for We Persons with Sensory Disabilities

An examination is made of the right of persons with sensory disabilities in Australia to vote and to serve on juries. This right is enshrined in article 29 of the United Nations Convention on the rights of Persons with Disabilities. The use of electronic voting in Australia is discussed with particular reference to the new I-Vote system in the State of New South Wales. It is also argued that persons who are blind or deaf should also have the right to serve on juries.

Book Reviews : Labour Law and Industrial Relations in Asia: Eight Country Studies: Edited by Stephen Deery and Richard Mitchell. Longman Cheshire Pty Limited, Melbourne, 1993, vi + 302 pp.,

eastern European economy, as well as, perhaps, a newly industrializing country in east Asia. (For example, Russell Lansbury has written elsewhere on the interesting case of South Korea.) For the moment, the reader must be satisfied with an informative account of industrial relations structures and developments in Japan, where traditional practices, such as lifetime employment, are coming under mounting pressure. The book concludes with an entirely new chapter by Oliver Clarke, who provides a summary of the country studies and attempts to draw out some broad themes in an international context, and a valuable appendix by Greg Bamber and Gillian Whitehouse, who have compiled relevant and up-to-date comparative statistics.