1,721,010 research outputs found
Embedding workplace collaboration: preventing disputes
No full textBased on research carried out by the Workplace and Corporate Law Research Group, this paper examines how the new regulatory institutions created by the Fair Work Act can assist workplace relations parties to develop best practice employment relationships and increase productivity.
The paper includes comprises a policy discussion paper written by Anthony Forsyth titled “Promoting Cooperative Workplace Relations in the New ‘Fair Work’ System”, which also examines the dispute prevention roles of public dispute resolution agencies in the UK, Ireland, USA and Canada, and a foreword containing recommendations by the BCA
The 'transplantability' debate in comparative law and comparative labour law: implications for Australian borrowing from European labour law
No full textIn this paper Dr Anthony Forsyth examines the long-standing conceptual debate in comparative law literature about whether, and if so in what circumstances, it is possible to ‘transplant’ laws from one legal system to another. The paper also focuses specifically on how the transplantability debate has played out in the field of labour law. The major contributions to the debate in the comparative law and comparative labour law literature are discussed in Parts II and III of the paper. In Part IV, these various approaches to legal transplantability are assessed, to determine which of them offers the greatest assistance in identifying the factors that are likely to affect whether laws can be successfully borrowed from overseas jurisdictions. The paper concludes that Teubner’s analysis of the interaction between law and various social systems provides the soundest conceptual framework for considering the transplantability of labour laws, and in particular, the potential for successful Australian adoption of European labour law concepts and institutions
Victorian inquiry into the labour hire industry and insecure work: final report
Full text linkThe Inquiry has recommended that a licensing scheme be set up to regulate labour hire operators. The report also called on the Victorian Government to advocate for a national licensing scheme for labour hire operators, through the Council of Australian Governments.
The Victorian Government has accepted in principle the recommendations regarding licensing and advocacy to the Commonwealth. The Department of Economic Development, Jobs, Transport and Resources will now consult further to develop the structure of such a licensing scheme and what industries should be regulated.
There are a range of other important findings and recommendations in the comprehensive and wide ranging report, which was presented by the Chairman of the Inquiry, RMIT Professor, Anthony Forsyth. These will be closely examined by the government with a view to developing a response to those matters over coming months
The new corporate law
No full textCorporate social responsibility is back on the corporate law reform agenda. From an Australian perspective, the evidence for this is found in the simultaneous but separate inquiries that, at the time of writing this paper, are being conducted into this topic by the Australian Parliament’s Joint Committee on Corporations and Financial Services, and by the Australian Government’s Corporations and Markets Advisory Committee (CAMAC). These developments are supported by the many standards, guidelines, principles, and codes promulgated by non-government bodies, industry groups and other international organisations. Cynics might dismiss these developments as part of a regular cycle of corporate law reform. After all, as we will see, this is not the first time that corporate social responsibility has appeared on the reform agenda. Others might suggest that, finally, this is an idea whose time has come. The purpose of this paper by Stephen Bottomley and Anthony Forsyth is to examine the extent to which this renewed, and widespread, attention to corporate social responsibility is being reflected in the substance of our systems of corporate law. Is it possible, and meaningful, to talk of a ‘new corporate law’ in which the concerns of people other than shareholders (or, indeed, the non-financial concerns of shareholders) are to be given serious attention
Review: "The future of unions and worker representation: The digital picket line" by Anthony Forsyth, Hart Publishing, Oxford, 2022.
No full textThe 'digital picket line', the subtitle of this significant new monograph by Professor Anthony Forsyth, nicely evokes the themes that permeate this study of the future of trade unions and worker representation. As Forsyth observes, the term is 'emblematic of the transformation in union forms and tactics ... needed to ensure that unions continue to play an effective role as the representative of workers into the future'. Forsyth sets out the challenge for the trade
union movement to identify 'how the revitalisation of unions can be achieved and what collectivism must look like to ensure the effective representation of workers' interests into the future'. Adopting Visser’s categorisation of four
possible futures for the union movement (marginalisation, dualisation, replacement, revitalisation), Forsyth contends that revitalisation for unions is viable provided the union movement commits to the underlying preconditions to enable revitalisation to occur
Is the IR price right for unions?
No full textLabor has moved a long way to unseat the government, says ANTHONY FORSYTH, but is it too far for the unions?
IF JOHN HOWARD and Joe Hockey are right, and “union bosses” are running the ALP, they are doing a pretty ordinary job. Labor’s industrial relations policy implementation plan, released last Tuesday, reveals the dwindling influence of union leaders on workplace policy formulation.
Kevin Rudd is not from the union movement and is not beholden to union powerbrokers. He is determined to shape a system of workplace regulation to replace WorkChoices, based on “flexibility and fairness” - but without providing a foothold for the assertion of “union power.”
Rudd is following the lead of former British prime minister Tony Blair, who faced down unions by promising there would be “no going back” to pre-Thatcher industrial confrontation.
Take a look at what unions “get” from Labor’s modified IR package:
• The strict limits on industrial action will remain, including mandatory secret ballots, bans on secondary boycotts, and quick access for employers and third parties to legal remedies against “unprotected” action.
• Labor’s “clear, tough rules” on strikes will also retain constraints on “pattern bargaining” (so, no industrial action in support of industry-wide wage claims).
• The WorkChoices restrictions on union “right of entry” into workplaces will stay.
• The much-loathed (by unions) building industry regulator, the Australian Building and Construction Commission, will operate until 2010, when it will be absorbed into Fair Work Australia.
• Even Labor’s pledge to abolish Australian Workplace Agreements is now heavily qualified - with existing AWAs able to run until 2012, the removal of the award base for common law agreements for those earning more than $100,000 a year, and the possibility of “transitional individual agreements” (AWAs in all but name) in the first two years of a Rudd government.
The ALP has also promised the unions that it will place collective bargaining “at the centre” of its industrial relations system. But close analysis shows that it falls well short of the collective bargaining framework the ACTU wanted.
Labor’s original IR plan, released in April, outlined a collective bargaining system based on voluntary negotiations between an employer and a union, or an employer bargaining directly with its employees. The will of the majority of employees in a workplace will determine whether collective bargaining occurs. If there is majority employee support for collective negotiations, then “good-faith bargaining” rights and obligations will apply to all parties.
The system will be overseen by Fair Work Australia, which could make orders requiring the parties to meet, exchange information, respond to proposals within reasonable time limits, and adhere to agreed bargaining procedures. But no party would ultimately be compelled to enter into an agreement.
Fair Work Australia’s role would be limited to assisting the parties to reach a deal. It could not arbitrate an outcome - unless the parties agreed, or where protracted negotiations involved protected industrial action that was causing economic harm or threatening public welfare.
The ALP explicitly rejected an ACTU proposal to give the industrial tribunal “last resort arbitration” powers. These would have enabled the tribunal to impose a resolution on the parties in the public interest, where they had been unable to reach agreement despite extensive talks - or (importantly) where one party has been acting in “bad faith”, for example, by refusing to negotiate.
The upshot of all this is that Labor’s policy fails to tackle a major problem of the bargaining framework that has operated since 1996 - the ability of an employer to simply ignore the workforce’s desire to reach a collective agreement and to have their union negotiate on their behalf.
We have seen this play out in numerous disputes - at Boeing, Cochlear and Esselte, just to name a few.
Good-faith bargaining duties will no doubt assist unions in getting employers to the negotiating table. But where tribunal intervention is essentially a voluntary process and there is no spectre of arbitration, some employers will still decide to “tough it out” - and Labor’s new IR laws, just like WorkChoices, would allow them to do so.
This is a far cry from the “compulsory union bargaining” system that employer groups have been recently complaining about.
In any case, Labor’s more recent IR policy statement makes a huge song and dance about the virtues of “genuine non-union agreements.” Rudd has made it crystal clear that unions will not get a guernsey in collective agreement negotiations in non-unionised enterprises. Non-union deals will be made without any union input, or union intervention rights. In fact, Julia Gillard has said that a union would not even know such agreements were being made - end of story.
Not so long ago, the adoption of such policies would have been unthinkable for a Labor government. Now they appear to be the price Labor is willing to pay to unseat the Howard government. The question is, to what extent are the unions willing to pay the same price? •
Anthony Forsyth is a senior lecturer in workplace law in Monash University’s department of business law and taxation. This is an edited version of a paper he will present at the International Industrial Relations Association European Congress in Manchester this week.
Photo: Volker Kreinacke/iStockphoto.co
Democratic deficit at work
No full textThe Ajax dispute and the Amcor closures highlight a lack of consultation in the workplace, writes Anthony Forsyth
TWO major developments in Australian business this week - the crisis in the car manufacturing industry, triggered by supply firm Ajax Fastener’s parent company entering into administration, and Amcor’s restructuring announcement with the loss of 200 jobs - have focused attention on the vulnerable position of Australian workers in corporate insolvencies and restructures.
Employees at Ajax had to occupy the factory to ensure that their interests were considered in the round-the-clock negotiations over the company’s future between the administrators, the major car companies and other businesses in the supply chain. Why did the workers have to take such extreme measures? Because workplace and company laws in Australia provide them with very few rights to be informed and heard when companies face insolvency, or restructure their operations through closures, relocations or retrenchments.
Some consultation rights were provided to workers under award “TCR clauses” following the landmark Termination, Change and Redundancy Case in 1984. But the Howard government’s 1996 and 2005 legislative changes put an end to that. Employers have some legal obligations to consult with unions about mass redundancies, but the Work Choices amendments have significantly narrowed these provisions. Further, the Industrial Relations Commission has been removed as a forum for resolving these types of disputes.
Under the corporate law framework, employees are treated as unsecured creditors with minimal opportunity to influence the outcome of administration processes. The General Employees Entitlements and Redundancy Scheme, or GEERS, offers only limited protection of employment entitlements (although the federal government’s announcement on Tuesday of a doubling in the maximum amount of redundancy pay that will be funded under GEERS, to sixteen weeks’ pay, is a welcome development).
In contrast, the industrial relations systems of many European countries ensure that workers’ democratic rights of participation in decision making do not stop at the factory gate or the office door. In Germany, these rights are reflected in the legal provisions for information, consultation and negotiation over business restructuring issues through “works councils”:
• German law requires companies with more than 20 employees to disclose to the works council proposals for “substantial alterations” to the business, for example reduced production, transfers, closures, mergers of business units, changes to technology or production processes, or redundancies - anything that could entail “substantial prejudice” to the employees.
• Management and the works council then have to negotiate a “reconciliation agreement” about the proposals, dealing with the extent and timing of the changes or whether they should occur at all.
• If changes to the business are to proceed, then a “social plan” must be implemented - this could cover financial compensation for affected employees, longer notice periods before dismissal, or retraining programs.
• Where agreements cannot be reached, conciliation procedures apply, or ultimately, the Labour Court can make a ruling (although this is rarely required).
• In larger German companies (over 100 employees), employees also have the right to regular provision of financial information about the business through the “finance committee” of the works council - including quarterly progress reports, and an explanation of the annual balance sheet.
The European Community’s Information and Consultation Directive also provides employees with information and consultation rights in respect of proposed business restructures, although these are not as extensive as those operating under German law. Most importantly from an Australian perspective, the United Kingdom has recently implemented this EC directive.
For those who might argue that the continental European “social partnership” approach is too alien to Australian workplace culture, the UK experience suggests otherwise. Like Australia, the UK has not traditionally adopted formalised mechanisms for worker participation in firm decision making. But business interests, unions and employees alike have embraced the concept of partnership in recent years in the UK - recognising its potential for delivering productivity gains for the enterprise, and job security and other benefits for employees.
The German, EC or UK laws do not provide all the answers, and they would need to be modified to suit Australian circumstances. One option might be to adopt something like the German provisions for negotiation of a “social plan” when restructures are proposed or insolvency threatens the viability of a business. In the latter case, employees could have the right to negotiate (through their union, or a works council in non-unionised workplaces) with the company’s administrators. Related companies could be compelled to be drawn into these negotiations, overcoming the common problem of the “corporate veil” as a barrier to accessing funds to meet workers’ entitlements.
These overseas laws at least provide a starting point for a much-needed debate, in light of Work Choices’ stripping away of the rights of Australian workers, about what a framework for restoring those rights should look like. At the core of that framework should be a recognition of the democratic rights of employees to participate in making decisions that so fundamentally affect their interests. •
Anthony Forsyth is senior lecturer and director of the Corporate Law and Accountability Research Group, Department of Business Law & Taxation, Monash University, and an associate of the Australian Institute of Employment Rights. This article first appeared in the Age
Going Beyond Counting First Authors in Author Co-citation Analysis
Full text linkThe present study examines one of the fundamental aspects of author co-citation analysis (ACA) - the way co-citation
counts are defined. Co-citation counting provides the data on which all subsequent statistical analyses and mappings
are based, and we compare ACA results based on two different types of co-citation counting - the traditional type that
only counts the first one among a cited work's authors on the one hand and a non-traditional type that takes into
account the first 5 authors of a cited work on the other hand. Results indicate that the picture produced through this non-traditional author co-citation counting contains more coherent author groups and is therefore considerably clearer. However, this picture represents fewer specialties in the research field being studied than that produced through the traditional first-author co-citation counting when the same number of top-ranked authors is selected and analyzed. Reasons for these effects are discussed
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