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Abstract:
Corporate 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 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?

The plan of the paper is as follows. We begin with a brief survey of recent developments in different common law jurisdictions, with an emphasis on Australia, that have implications for the idea of corporate social responsibility. The focus here is not just on statutory developments, but also on the wider array of codes, guidelines and so on that were adverted to earlier. From this base, we then draw and elaborate upon two conclusions. The first is that the shareholder primacy model continues to exert a powerful, although sometimes misunderstood, effect on the capacity of legislators to respond to corporate social responsibility concerns. In particular, it has the potential to constrain the actions of directors in responding to those concerns, it constrains the power of shareholders to put these concerns in front of the board, and it constrains the capacity of non-shareholders to bring these concerns to the attention of company managers. The second conclusion is that much of the action regarding corporate social responsibility therefore occurs outside the parameters of the statutes, and it is in this sense that we can talk about a 'new corporate law': a system of corporate regulation that depends as much on (if not more on) non-statutory mechanisms and methods, which in many cases can have a more immediate impact on corporate operations. The final part of the paper examines some of these themes in more detail, by way of a 'case study' of the position of corporate employees. Whatever definition one takes of corporate social responsibility, it is undeniable that the financial and physical well-being of a company's employees must be a central concern. Recent corporate collapses and policy responses to them in Australia provide a stark illustration of the limited extent to which corporate law has been able to respond to the challenges of corporate social responsibility.

corporate law

Abstract:
An important dimension of this broader concept of innovation is 'workplace innovation'. One form of workplace innovation is the adoption of 'high performance' or 'high involvement' approaches within firms, such as work teams, multi-skilling and employee involvement schemes. In this paper, we are interested in exploring the idea of workplace innovation in a more expansive sense - that is, in terms of the ordering of work organisation, production and industrial relations systems in ways that support other forms of innovation. Several studies have identified a positive link between innovation at the workplace level, and innovation in products, markets and technologies (and so on). This, in turn, is said to carry significant benefits in terms of business productivity and performance. The core question that we wish to examine in this paper (and in the broader project that it forms part of) is the potential role of regulation in supporting and advancing workplace
innovation.

workplace innovation, employment systems, regulation

Abstract:
This paper examines how far, and in what ways, overseas systems of worker representation are influencing the Australian debate. After briefly exploring the diminution of legal support for worker representation over the last 15 years, the paper contains a detailed analysis and comparison of recent policy proposals put forward by the Australian Council of Trade Unions and the Federal Labor Opposition. The ACTU policy draws heavily on the United States, Canadian and United Kingdom collective bargaining and union recognition systems, along with North American and (particularly) New Zealand concepts of 'good faith bargaining'. Key aspects of these overseas systems are highlighted in the paper. In contrast, the ALP industrial relations policy is a substantially diluted version of the ACTU blueprint, involving only minimal 'borrowing' from overseas worker representation laws. Importantly, stronger supports for collective bargaining - such as the NZ mechanism for arbitration of bargaining impasses - have been omitted from Labor's policy. If implemented, this would see the emergence in Australia of a blend of several overseas worker representation models, resulting in some improvement to the current legal framework's subversion of collective bargaining - but not to the extent desired by the ACTU.

worker representation, ACTU, collective bargaining, union recognition, overseas worker representation

Abstract:
In an important article in 2004, from which the title of this paper borrows, Professor William Brown observed that – since the mid-late 1990s – there has been a significant shift internationally away from traditional forms of third party intervention by public dispute resolution bodies. Over this period, dispute resolution agencies in Canada, the USA, Ireland and the UK have increasingly taken on mediation, facilitative, advisory and training functions, among others. These new roles are aimed at preventing workplace disputes from arising, by encouraging employers, employees and unions to adopt 'model' or 'best practice' employment arrangements. Voluntary engagement with these approaches by industrial relations parties (rather than judicially-imposed processes and outcomes) is another feature of the new approach identified by Brown. The transformation of public agencies in these four countries, from their past focus on dispute resolution to a greater focus on dispute prevention, reflects a broader departure (particularly in Ireland and the UK) from conflict-oriented industrial relations processes in favour of cooperation and partnership. Part 2 of this paper examines and evaluates the dispute prevention roles of the following agencies:

• Federal Mediation and Conciliation Service (Canada);
• Federal Mediation and Conciliation Service (USA);
• Labour Relations Commission (Ireland); and
• Advisory, Conciliation and Arbitration Service (UK).

The paper then assesses the implications of these overseas developments for industrial tribunals in Australia (Part 3). Commencing with the shift to enterprise bargaining in the early 1990s, the traditional dispute resolution functions of the Australian Industrial Relations Commission and State tribunals have been curtailed. Under Work Choices, the AIRC was transformed into a 'voluntary' dispute settlement body, and forced to compete with private alternative dispute resolution providers. At the same time, the State tribunals lost much of their former jurisdiction due to the Federal 'takeover' of State industrial laws. The paper examines these developments, in order to address the question: how 'ready' are Australian industrial tribunals to effect a shift towards a greater role in dispute prevention, along the lines of comparable overseas agencies? This discussion will focus, in particular, on the decline of dispute resolution in the Australian Industrial Relations Commission in recent years, and the potential dispute prevention role of the Federal Government's proposed new workplace agency, Fair Work Australia.

THIRD PARTY INTERVENTION, AUSTRALIAN INDUSTRIAL TRIBUNALS, public dispute resolution

Abstract:
This paper examines the early operation of the good faith bargaining provisions of Australia's new Fair Work Act 2009 (Cth). The paper identifies some parallels between the approach to these new statutory provisions, and good faith bargaining laws in both the USA and Canada - but also some areas of divergence. It also finds that it is unlikely that US-style union-busting strategies will emerge in the Australian context. Finally, the paper illustrates some important commonalities between Australia's new collective bargaining regulation, and the reforms proposed in the Employee Free Choice Act currently before the US Congress.

Collective bargaining, good faith bargaining, comparative labour law