Time and Money Under Work Choices: Understanding the New Workplace Relations Act as a Scheme of Regulation

University of New South Wales Law Review, Vol. 29, pp. 215-241, 2006

U of Melbourne Legal Studies Research Paper No. 276

50 Pages Posted: 6 Nov 2007

See all articles by Sean Cooney

Sean Cooney

University of Melbourne - Law School

Jill Murray

La Trobe Law School

John Howe

University of Melbourne Law School

Abstract

This article is an assessment of changes to labour standard-setting in Australia brought about by the Workplace Relations (Work Choices) Act 2005 (hereafter Work Choices). We examine whether Work Choices is an example of sound regulatory practice, and whether it is likely to address the key social problems associated with work in Australia in the early twenty-first century. We conclude that it is not, and indeed is largely directed at increasing the discretionary power of employers.

Part II of the article establishes a framework for analysing Work Choices. We raise normative arguments in favour of maximising not merely work but decent work and contend that the private law of employment is, on its own, unable to deliver decent work. Public regulation of the employment relationship is also required. We then consider what modes of public regulation are most appropriate in the employment context, drawing on the now extensive literature on effective (and in particular responsive) regulation.

Part III applies this framework to Work Choices, focusing on the regulation of time and pay. The Part begins with an explanation of the ways in which Work Choices departs from the previous system of setting labour standards for decent work. We then find that Work Choices favours 'command and control' rather than responsive regulation. We further observe that although this form of regulation purports to 'guarantee' basic labour standards, it often exacerbates the problems of private law by expanding the scope of employer action.

The article concludes by suggesting that a better approach to workplace reforms, while not returning to the past, would draw on, rather than marginalise the successful elements of the previous system.

Keywords: Work Choices, workplace relations act, Australia, regulation, time, pay

JEL Classification: K31

Suggested Citation

Cooney, Sean and Murray, Jillian G. and Howe, John B, Time and Money Under Work Choices: Understanding the New Workplace Relations Act as a Scheme of Regulation. University of New South Wales Law Review, Vol. 29, pp. 215-241, 2006, U of Melbourne Legal Studies Research Paper No. 276, Available at SSRN: https://ssrn.com/abstract=1027503

Sean Cooney (Contact Author)

University of Melbourne - Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia

Jillian G. Murray

La Trobe Law School ( email )

La Trobe University
Bundoora, VIC 3083 3142
Australia

John B Howe

University of Melbourne Law School ( email )

Centre for Employment & Labour Relations Law
Parkville, Victoria, 3010
Australia
61 3 9344 8924 (Phone)
61 3 9349 4623 (Fax)

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