Labour Law and Labour Market Regulation: Essays on the Construction, Constitution and Regulation of Labour Markets and Work Relationships.

• Jurisdiction: Australia
• Date: 01 December 2007
• Author: Deakin, Simon

Labour Law and Labour Market Regulation: Essays on the Construction, Constitution and Regulation of Labour Markets and Work Relationships edited by Christopher Arup, Peter Gahan, John Howe, Richard Johnstone, Richard Mitchell and Anthony O'Donnell (Sydney: The Federation Press, 2006) pages i-xvi, 1-752. Price A$85 (hardcover). ISBN 1 86287 6118.

[This article reviews a major new work in the labour law field, Labour Law and Labour Market Regulation: Essays on the Construction, Constitution and Regulation of Labour Markets and Work Relationships, edited by Christopher Arup. Richard Mitchell et al. The book, which brings together the work of over 40 individual contributors, maps out the conceptual changes which are occurring as the focus of labour law shifts away from the employment contract and collective bargaining towards consideration of a wider set of labour market relationships. The article argues that while a new paradigm has not yet emerged to replace labour law, the future of the subject lies in the development of inter-disciplinary approaches of the kind exemplified by the work under review.]

CONTENTS I Introduction: From 'Labour Law' to 'Labour Market Regulation'. II The Scope of Labour Law III Labour Law Method IV Normative Focus and the Relevance of Empirical Evidence V Conclusion I INTRODUCTION: FROM 'LABOUR LAW' TO 'LABOUR MARKET REGULATION'

Labour Law and Labour Market Regulation: Essays on the Construction, Constitution and Regulation of Labour Markets and Work Relationships (1) is a collection of chapters marking the culmination of the most recent phase of a research project begun by Richard Mitchell and Christopher Arup in the 1990s. The aim of this project was to consider the implications of the reorientation of labour policy away from the traditional subject matter of labour law, which can be loosely thought of as the employment relationship and the collective bargaining process, towards a wider range of regulatory issues affecting the organisation of labour supply and demand. This shift in focus began in Australia and in numerous other countries in the preceding decade and, as the title of the present volume suggests, it marked a transition from labour law to 'labour market regulation'. Mitchell's 1997 edited collection, Redefining Labour Law: New Perspectives on the Future of Teaching and Research, (2) set out the relevant issues and offered some preliminary conclusions based on work carried out up to that point. This new collection indicates both a widening and deepening of that initial project. There are several new theoretical chapters and a very broad range of empirical and legal-conceptual chapters from a total of 38 contributors. Much of the work has been carried out by members of the Centre for Employment and Labour Relations Law at the University of Melbourne, or those with a connection to it, although scholars from a number of other universities have also made major contributions. The book is unquestionably a landmark in Australian labour law scholarship and, in addition to this, will influence debates in many other countries over the future of labour law. It will also make an important contribution to interdisciplinary legal research, particularly in the area of regulation.

According to Mitchell and Amp in their introductory chapter, the regular labour law paradigm 'lacks both "explanatory and normative power"'. (3) This is essentially for three reasons: changing labour market practices, both within the enterprise and beyond it; the rise to prominence of new economic theories of the labour market; and wider changes in the structure of society. However, what they propose is not the abandonment of the existing field, but rather its broadening. This takes two forms: examining different aspects of firms' structures; and addressing new actors and groups 'out there' in the labour market. The change in terminology, which is already occurring as the narrow concept of the 'employee' is displaced by the wider one of the 'worker' or 'active labour market participant', is mirrored by a broader shift from the workplace to the 'world of work'.

The change proposed by Mitchell and Arup has several dimensions. The first is the sense in which areas of law beyond the traditional 'core' become relevant to understanding work relations. Thus aspects of social security law, superannuation law, tax law, company law, commercial law, competition law, family law and housing law all become potentially relevant. A second and related change involves a commitment to legal pluralism: labour lawyers need to understand and incorporate into their analyses the role of forms of regulation beyond the formal law. The third change is a normative one: it is necessary to acknowledge that labour law performs a multiplicity of purposes beyond its traditional protective ones, including the promotion of employment opportunities, and, conceivably, economic goals such as competitiveness. Finally, a different methodology is implied--one which is explicitly interdisciplinary, and which is influenced by a long-term historical perspective.

Following this introductory chapter, the book is divided into four parts, followed by a concluding chapter by Arup. The first part considers the purposes of labour market regulation. Michael Quinlan introduces this issue by providing an historical context to the question of labour law's objectives, explaining that the protective role accorded to it in the middle decades of the 20th century was only one of the purposes which this area of law has served, and emphasising the relatively short-lived nature of this period in labour law's evolution. Michael Barry, Marco Michelotti and Chris Nyland stress the importance of the role played by employer interests in shaping labour law, (4) while Margaret Lee considers labour law as a framework for bargaining and contracting using regulatory theory. (5) Karen Wheelwright examines economic arguments for labour law reform and points to the absence of a sound empirical basis for the claim that deregulation assists the growth of small and medium-sized enterprises. (6) Finally, Belinda Smith analyses the Sex Discrimination Act 1984 (Cth), drawing a distinction between its significant role in redressing harms after the event and its much less successful use as a mechanism for embedding equality in the practices of organisations. (7)

Part two is concerned with labour market institutions and regulatory techniques. The introductory chapter to this section, by Peter Brosnan and Peter Gahan, surveys what they call the 'repertoire' of regulatory techniques operating in this area. (8) Starting out from a definition of 'command and control' regulation as prescriptive regulation based on formal rules and sanctions which are enforced through inspectorates and courts, (9) they identify a series of alternatives in the form of 'economic instruments' (including taxation and subsidies), the management of public functions (public procurement, floatation and privatisation, and public sector employment policy), (10) management-based regulation (into which they place various types of reflexive or responsive regulation including voluntary self-regulation, mandated self-regulation, disclosure rules and the demonstration of best practices) (11) and, finally, market-based regulation (where they not only place licensing and social insurance, but also, interestingly, 'roll-back' and 'regulatory neglect'). (12) Individual chapters in this part examine particular mechanisms in more detail. These include studies of the nature of deregulation in the Australian labour law context and its real nature as a new variety of command and control (John Howe), (13) the use of public expenditure to direct policy (Howe again), (14) self-regulation in the mining industry (Sean Cooney), (15) the regulation of 'hybrid' business forms (Igor Nossar), (16) the regulation of bargaining through industrial tribunals (Andrew Frazer), (17) unfair dismissal legislation and its impact on the common law of employment (Carolyn Sutherland), (18) and regulation via trade unions (Peter Gahan) (19) and employment agencies (Elsa Underhill). (20)

In part three the emphasis is on the way in which regulation 'constitutes' the labour market. John Howe, Richard Johnstone and Richard Mitchell argue that the neoliberal ideal of a 'free' labour market that pre-exists regulation turns a blind eye to 'the role of formal, public institutions in constituting markets and shaping market relations'. (21) They suggest that when viewed in this way, there is no single 'labour market' but a series of labour market contexts: these can refer to particular geographic, industrial or occupational categories, to the enterprise, or to the 'general labour market' within which the overall labour supply is constituted by the rules determining who can or must enter the workforce and on what basis. (22) A similar pattern to the other parts follows, with in-depth studies of specific aspects of market-constituting rules: immigration control (Mary Crock and Leah Friedman); (23) unemployment benefit (Anthony O'Donnell); (24) tax law (Cameron Rider); (25) the intersection between labour law and social...