SEAN COONEY, University of Melbourne - Law School
Email: s.cooney@unimelb.edu.au
SARAH BIDDULPH, University of Melbourne - Law School
Email: s.biddulph@law.unimelb.edu.au
YING ZHU, University of Melbourne - Department of Management
Email: y.zhu@unimelb.edu.au
LI KUNGANG, Anhui University
Email: likungang@hotmail.com

China's new Labour Contract Law is the most significant reform to the law of employment relations in more than a decade. Its final form emerged following highly contentious debates over the terms of earlier drafts - debates involving not only a range of Chinese actors, but also international business lobbyists and labour organisations. The Law as enacted represents a compromise between the competing demands of these many interest groups.

This article briefly surveys the reasons for the enactment of the Labour Contract Law, the polarised drafting process, and the key matters it addresses. The assessment presented is that the Law is, overall, a necessary and beneficial contribution to the regulation of work in China. However, the article highlights four areas likely to be subject to ongoing contention and dispute. Those areas concern (1) unilateral changes to working conditions; (2) forms of contracting and termination of employment; (3) labour hire; and (4) non-compete clauses.

COLIN FENWICK, University of Melbourne - Law School
Email: c.fenwick@lunimelb.edu.au
JOHN HOWE, University of Melbourne Law School
Email: j.howe@unimelb.edu.au
SHELLEY D. MARSHALL, Business Law and Taxation, University of Melbourne - Centre for Corporate Law and Securities Regulation
Email: shelley.marshall@buseco.monash.edu.au
INGRID LANDAU, University of Melbourne - Law School
Email: imlandau@unimelb.edu.au

This paper examines the application of labour law in micro and small enterprises (MSEs) by comparing the practices in various member States of the ILO. Extending the coverage of labour law to numerous MSEs has been problematic in several countries largely due to practical reasons of the limited state capabilities and the number of enterprises involved. While the enterprises make 'strategic choices' of which legal provisions to comply with, States have the choice of 'responsive regulation' as well.

The role of the State in creating a level playing field for all enterprises is being increasingly recognized as critical for bringing about an enabling business environment. Such role of the State in formulation and application of policies and regulations has been debated in terms of their effect in business growth as well as workers' protection as enshrined in the ILO's Fundamental Principles and Rights at Work and other conventions. Although doubts have been raised about legislating the labour market without effective State wherewithal to implement such laws, the rush to deregulation in some countries has also raised the apprehension of the market anarchy in the absence of rules.

Many countries have labour law provisions applicable to all enterprises whereas many others have parallel labour law regimes or simply exemptions for the MSEs from application. Hence, a multitude of MSEs is found operating in an informal economy outside the legal purview with dim prospects of growth, poor working conditions and low productivity. During the discussion on the informal economy in 2002, the International Labour Conference concluded that the growth of the informal economy can often be traced to inappropriate, ineffective policies coupled with the lack of conducive legal and institutional frameworks and the lack of effective implementation of policies and laws. Based on the policy reviews carried out by SEED of the ILO in ten countries, labour legislation has been identified as one of the important elements of the regulatory environment affecting the performance of MSEs.

A conducive policy and regulatory environment reduces excessive administrative burdens and costs for enterprises; and at the same time, the long-term productivity gain is feasible only with workers' protection. There has been much debate about lowering the cost of doing business, including the arguments put forward in the Doing Business reports of the World Bank Group. Nonetheless, minimizing regulation to the extent of deregulation may not be the answer since the market does not operate efficiently without a legal framework; and the exploitative 'race to the bottom' under the competitive pressures in the absence of such a legal framework only damages long term survival of enterprises and jobs. Appropriate and effective regulation is necessary for reducing the burden and cost for enterprises in complying with the regulatory requirements while maintaining workers' protection.

'Responsive regulation' by the State means taking into account the attraction and incentives for the enterprises in complying with the labour regulation while the State maintains the threat of sanction as the last resort. This means an interplay of how enterprises make 'strategic choices' in complying with various regulations and how the State encourages such decisions through innovative regulatory approaches including education and awareness raising in collaboration with the ILO's social partners. This working paper provides such country examples as references for the constituents to debate their own reform processes.

LETICIA M. SAUCEDO, William S. Boyd School of Law, UNLV
Email: Leticia.Saucedo@unlv.edu

This article explores the viability and potential effectiveness of immigration law's U visa to contribute to the protection of groups of workers in substandard and dangerous workplaces. Immigration law has increasingly become an obstacle to the enforcement of employment and labor law to protect immigrant workers. Moreover, employment and labor law, with their individual rights frameworks, have proven blunt instruments in eradicating the type of subordinating, sometimes slave-like conditions of immigrant workers, especially those in low-wage industries. The federal government recently issued long-awaited regulations governing U nonimmigrant visas for certain crime victims. Several of the enumerated eligible crimes in the U visa statutory provisions encompass labor exploitation. The U visa regulations demonstrate how the interplay between employment and immigration law can provide the protection that immigrants need as a prerequisite to remedy workplace wrongs.

The U visa grants nonimmigrant status to victims of crime who have suffered substantial physical or mental abuse as a result of being victims of criminal activity, and who have been, will be, or are being cooperative with law enforcement officials in the investigation or prosecution of the crime. Initially, the government implemented the statute to protect domestic violence or sex crime victims because the legislation was a companion to the Violence Against Women Act for which women's groups advocated. The legal scholarship addressing U visa implementation has focused on this group of crime victims as individual victims. A minority of scholarship has addressed the use of the U visa or any other visa status to protect against workplace crimes. As yet, no scholarship has directly suggested the U visa as a foundation for enhancing the collective rights of immigrant workers in substandard workplaces. This article addresses the viability of the U visa as a vehicle for creating power for the collective and protecting against criminal activity in immigrant-dominated workplaces.

MARTIN GELTER, Vienna University of Economics and Business Administration - Department of Business Law, European Corporate Governance Institute (ECGI)
Email: martin.gelter@wu-wien.ac.at

Comparative corporate governance has captured the interest of economists and legal scholars during the past two decades. In view of intensified economic globalization, it has become apparent that the public corporation, one of the keystones of the modern market economy, has produced very different systems of how authority in the firm is assigned around the world. In Political Power and Corporate Control, Peter A. Gourevitch and James Shinn bring forward a powerful political explanation challenging the assumptions of a literature dominated by economic theory.