Documents Marshall, Shelley 5 results

"Despite international instruments on trafficking and forced labour that stipulate the importance of ensuring rightsholders can access effective remedy, instances of remediation for harms including forced, bonded, and child labour, as well as trafficking, have been rare. While remedy is also a common feature of strategies to address modern slavery adopted by nation states and multinational businesses, in practice workers who have been subject to severe forms of labour exploitation in global value chains (GVCs) continue to face significant obstacles to securing redress from those who have violated, or contributed to violation, of their rights.
Obstacles to remedy are multifarious and well-documented (OHCHR, 2016; ICAR et al., 2013). GVCs are complex, involving multiple actors and crossing multiple jurisdictions, rendering it challenging to assign accountability and secure appropriate remedial measures, and most legal systems have not adapted to the reality of service and production within GVCs. Even where powerful (‘lead') companies in the value chain shape the terms of supply and working conditions and are in the same jurisdiction in which the harm arising from their actions or omissions has occurred, remedial action is often stymied by labour law systems that only allow claims against direct employers. Where claims of joint employment or accessorial liability are possible under labour law, such claims are infrequent because of the stringency of tests of control or contribution, and the costs of such litigation (Marshall et al., 2023). In rare cases where litigants are successful in their legal claims, they often struggle to secure enforcement of any court order. Where the lead company that is influencing working conditions in the value chain is in another jurisdiction to where the harm has occurred, the chances of such claims succeeding are even lower (Fudge and Mundlak, 2023). Key principles underpinning private international law – such as those pertaining to jurisdiction and choice of law – largely operate to the benefit of businesses rather than those affected by their activities."

This work is licensed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/).

"Workers most exposed to economic risk around the world are commonly not covered by labour law either because laws were designed with people with a standard, continuous employer in mind or because of poor enforcement. According to the International Labour Organization's estimates, informal work, as a percentage of non-agricultural employment, continues to account for over 50% of all employment in half of the countries with comparable data across the globe. In onethird of countries, it involves over 65% of workers.1 There are exciting local and national experiments in new forms of labour regulation occurring in various countries that aim to extend labour regulation to non-standard workers, ensuring that they receive living minimum wages. This article compares four experiments in regulating work, including innovations in the regulation of work for head load (Mathadi) workers in India, immigrant industrial clothing outworkers in Australia, garment workers in Cambodia, and workers in Bulgaria who rely on a range of homebased activities to survive. The schemes have enjoyed varying success, providing lessons about what does and does not work in different contexts. "

"There is currently a broad consensus over the need to reform the personal scope of the application of labour law. Great ideas are only the beginning of any law reform process, however. As labour law scholars, we often act as if change is driven by ideas, even as we observe and write about other causes of institutional change. The puzzle of how institutional change occurs in practice has absorbed regulatory and institutional theorists for some time. This article draws on the work of Kathleen Thelen, in particular. It is concerned with two strategies of purposeful institutional change and with the question of how agents of social change bring about reform. These strategies are here termed ‘complementary layering' and ‘experimental displacement' and illustrated with case studies drawn from the textile, clothing and footwear industry in Australia and head-load work in Maharashtra, India, two of the most innovative examples of strategies to expand the scope of labour market regulation worldwide. A mixed methodology entailing interviews with workers and regulatory agents, legal analysis and broader political economy analysis is employed to explore the strengths and weaknesses of these strategies for bringing about institutional change in practice."

"Since the beginning of the 1990s successive Australian national governments (from both right and left of the political spectrum) have overseen a shift in the regulation of employment relations from one based on centralised arbitrated awards to one of enterprise bargaining. The ostensible purpose of this policy was to facilitate the development of workplace-focused systems of regulation which were sensitive to the need for flexible production and employment systems in the context of the global economy. The evidence suggests that whilst many of the objectives of the enterprise bargaining project have been attained (particularly the goal of greater flexibility in employment systems), the law has been less effective in protecting the interests of workers, particularly their power to influence decision-making at the place of work. The major impact of enterprise bargaining upon the workplace, the paper proposes, has been the restoration of managerial prerogative which previously had been mediated through arbitration or the power of trade unions. Finally, the paper draws conclusions on the changing role of the institutions which regulate Australian industrial relations. Historically, Australian industrial tribunals have combined the features of judicial bodies and regulatory agencies. The paper concludes that a shift is occurring in Australian labour law from a mixture of self-regulation and centralised ?command and control?, to ?enforced self-regulation?, thus signalling a systemic and profound reorientation in regulatory policy and technique in Australian labour market regulation."