Documents McCrystal, Shae 9 results

"The capacity for workers to combine in order to further their economic and social interests is a fundamental right enshrined in the Conventions of the International Labour Organization. Despite this, access to lawful collective bargaining may be limited in national jurisdictions to a more restricted class of workers, namely 'employees'. In common law countries, self-employed workers (or independent contractors) are almost always excluded. The distinctions drawn in national collective bargaining schemes between who is covered and who is not are a product of twentieth-century forms of work organization which facilitated a clear delineation between 'employees' labouring for the benefit of their employer, and self-employed 'entrepreneurs' in business for themselves. However, the economic structures and forms of work organization underpinning that distinction have broken down. Workers in need of the protection and benefits collective bargaining offers may be excluded because their contractual arrangements do not fit the twentieth-century model of employment on which access to collective bargaining is commonly based. Exploring how the boundaries of labour law regulation should be redrawn for the new globalized, outsourced and restructured world of work is a major challenge confronting the labour law discipline. This article considers how we might redefine those boundaries in the context of collective bargaining to accommodate the needs of self-employed workers. Starting from the assumption that such workers should be provided with access to lawful collective bargaining, the article discusses the issues that arise in designing such a framework. The discussion will draw upon various schemes in Australia and Canada that have been designed for particular classes of precarious self-employed workers, considering the lessons that can be learned from those experiences."

"In this article, we investigate legislative controls on the ability of workers and their organizations to take strike action, which raise fundamental questions relating to the application of democratic principles in a workplace setting. We trace the introduction of legislative provisions in Australia and the UK which sought to impose 'majoritarian' forms of democracy on trade union structures, by requiring ballots before such action could be taken. We recognize that these statutory pre-conditions are problematic both in terms of their aims and effects. Yet, what is arguably more worrying is the new institutionalization of deliberative pre-conditions for industrial action in the workplace. In Australia, this has taken the form of a requirement that a ballot applicant has 'genuinely tried to reach agreement', a requirement that continues to apply during any actual industrial action. In the UK context, the scope of protection from unfair dismissal (beyond a twelve-week period) will be affected by whether the union has complied with procedures established by an applicable collective or other agreement, offered or agreed to commence or resume negotiations, and has not unreasonably refused a request that conciliation or mediation services be used. In both countries, there seems to be growing pressure in policy terms for strikes to be very much a last resort, as statutory support for bargaining in good faith becomes stronger. We argue that these deliberative democratic controls of strike action are misguided. A richer understanding of deliberative democracy should, in our view, offer greater space for workers to voice their opposition in negotiations with employers."

"The rise of the gig economy, and the expansion of self-employment more generally, have magnified pre-existing concerns about how to address the risk of exploitation of non-employees, including franchisees, freelance journalists and owner-driver transport workers, amongst others. In a bid to fill relevant regulatory gaps, and correct destructive power imbalances, many are turning their attention to the power and potential of collective bargaining.

At the same time, there is growing appreciation of how competition prohibitions against price-fixing may curb workers' capacity to organize for decent wages and working conditions. There has been much discussion and debate about the need to expand existing labour exemptions from competition law in order to allow gig workers, and other vulnerable categories of selfemployed workers, to engage in lawful collective bargaining. Rather than fixating on questions of misclassification, however, this article considers a novel proposal emanating from the sphere of competition regulation in Australia.

After extensive consultation and prolonged Parliamentary debate, the Australian Competition and Consumer Commission (ACCC) has adopted a class exemption which provides a broad legal immunity to eligible small businesses, including self-employed workers, wishing to engage in collective bargaining. The ACCC's Determination to extend collective bargaining rights to small businesses – with effect from 3 June 2021 – represents a highly progressive approach and one worthy of greater attention and deeper analysis.

To assess the regulatory value of this unique approach, we draw upon the International Labour Organization (ILO) standards relating to collective bargaining and freedom of association. In doing so, we critically assess the extent to which the ACCC's approach offers a potential solution to resolving the tension between labour law and competition law when it comes to the regulation of self-employed workers. Somewhat surprisingly, we find that the class exemption largely complies with relevant ILO principles, despite the fact that it does little in terms of actively promoting or encouraging effective collective bargaining. For example, in line with ILO conceptions of voluntariness, the class exemption places virtually no restrictions on the scope, level or subject matter of the bargaining.

Ultimately, however, we argue that if collective bargaining is to have any chance of filling the regulatory void which exists between labour law and competition law, it is critical that basic structures and supports are in place to facilitate meaningful bargaining: where collective activity is supported by trade union autonomy and the right to engage in strikes in support of bargaining demands and concluded agreements."

"This working paper was prepared in 2024 and reviews developments internationally since 2021 relating to the exercise of the right to bargain collectively and the existence of collective agreements among workers in the platform economy. The paper builds upon ILO Working Paper 80, “Realizing the Opportunities of the Platform Economy through Freedom of Association and Collective Bargaining” by Felix Hadwiger published in September 2022. It provides a descriptive overview of research and developments since 2021 in the effective recognition of the right of
platform workers to bargain collectively and assesses the extent of developments in law and practice relating to collective bargaining internationally since that time.

The paper cites recent collective agreements and other outcomes of collective negotiations covering platform workers. It also explores developments concerning case law, effective recognition of collective bargaining for self-employed workers as well as some recent developments in competition regulation. Overall, while there have been developments in some jurisdictions relating to collective action or the effective recognition of collective bargaining for platform workers, it has not been geographically widespread and remains concentrated in the delivery/food delivery sectors. Furthermore, despite some advancements, it remains that case that most platform economy workers globally do not enjoy effective recognition of the right to collective bargaining."

"The regulation of strike action involves the balancing of competing public interests – the benefits derived from collective bargaining and the right to strike and others including public safety, health, welfare, and industrial peace. We explore how this balancing act plays out in the legal systems of two national jurisdictions, Australia and Sweden, and through the ILO principles on freedom of association as developed by the ILO's supervisory bodies. We seek to understand how different regulatory approaches to these competing public interests produces different outcomes and the potential consequences where protecting other public interests is prioritised over the right to strike."

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

"In 2016, the UK Parliament passed the Trade Union Act 2016 (TU Act 2016), which introduced new quorum and approval requirements for pre-strike ballots. In Australia, mandatory pre-strike ballots, including a quorum requirement, were first introduced in 2006. This article explains the key features of the Australian pre-strike ballot system and reports on quantitative and qualitative empirical research findings on the operation of the ballots process to analyse the majority and quorum requirements, mode of ballot (postal, attendance or electronic) and choice of ballot agent. Quorum is the biggest obstacle to Australian unions authorising strike action under the pre-strike ballot rules, and postal ballots fail to reach quorum at significantly higher rates than do attendance ballots. By introducing quorums and retaining the requirement that all pre-strike ballots must be conducted by post, the TU Act 2016 endorsed the two factors under the Australian regime most likely to impede the authorisation of strike action in a pre-strike ballot. "

"As scholars and policymakers around the world seek a systematic approach to the question of 'gig work,' one of its regulatory dimensions – the intersection of labor and competition law – points toward a deeper reconceptualization of the conventional legal and economic categories typically brought to bear upon it. A comparative approach to the question of gig work further reveals the variety and contingency of background assumptions that are often overlooked in the context of domestic policy debates. By combining a detailed comparative doctrinal survey of the regulation of non-employee workers in domestic competition law systems with a set of essays reframing the underlying questions raised – in terms of international legal frameworks, freedom of association norms, alternative approaches to law and economics, and more – The Cambridge Handbook of Labor in Competition Law moves the debates over the fissured workplace and the labor – competition law intersection forward in novel ways."