Bargaining in a Vacuum? An Examination of the Proposed Class Exemption for Collective Bargaining for Small Businesses

(2020) 42(3) Sydney Law Review 311

32 Pages Posted: 3 Feb 2021

See all articles by Tess Hardy

Tess Hardy

University of Melbourne - Law School

Shae McCrystal

The University of Sydney Law School

Date Written: November 1, 2020

Abstract

The Australian Competition and Consumer Commission (‘ACCC’) is on the cusp of introducing a class exemption for collective bargaining for small businesses. This development is not just novel in the context of Australian competition law, it is important in terms of addressing entrenched imbalances of bargaining power in business-to-business transactions. By surveying the recent legislative history relating to collective bargaining in the commercial context, we show that the class exemption fills critical gaps in the ACCC’s existing authorisation and notification processes. The article outlines key features of the proposed class exemption. Drawing on labour and industrial relations theories, the article then critically examines the class exemption through a series of dimensions, including the status, agent, level, scope and coverage of bargaining. This analysis reveals that the failure to formalise the bargaining processes and outcomes, the emphasis on voluntarism and the absence of any right to take collective boycotts, will not only lead to uncertainty, it will ultimately limit the overall effectiveness of collective bargaining in this forum.

Keywords: Collective bargaining; contractors; employment; competition and consumer regulation

Suggested Citation

Hardy, Tess and McCrystal, Shae, Bargaining in a Vacuum? An Examination of the Proposed Class Exemption for Collective Bargaining for Small Businesses (November 1, 2020). (2020) 42(3) Sydney Law Review 311, Available at SSRN: https://ssrn.com/abstract=3732597

Tess Hardy (Contact Author)

University of Melbourne - Law School ( email )

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

Shae McCrystal

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

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