At the Frontiers of Labour Law and Corporate Law: Enterprise Bargaining, Corporations and Employees
| Author | Jennifer Hill |
| DOI | 10.22145/flr.23.2.3 |
| Published date | 01 June 1995 |
| Date | 01 June 1995 |
| Subject Matter | Article |
AT
THE
FRONTIERS
OF
LABOUR LAW
AND
CORPORATE
LAW: ENTERPRISE
BARGAINING,
CORPORATIONS
AND
EMPLOYEES
Jennifer Hill*
INTRODUCTION
Nam
tua
res
agitur,
paries
cum
proximus
ardet
-For it is
your
business,
when
the
wall
next
door
catches fire.
Horace
No
two
areas
of law-in Australia are
moving
with
quite the breathless
pace
of
corporate
law
and
labour
law. Changes
under
the Corporate
Law
Simplification project
promise
to
be
fundamental
and
far-reaching.
And
in
Australian
labour
law,
the
enterprise
bargaining
regime
under
the Industrial Relations Reform Act 1993 is charting
new
waters.
Lord
Wedderburn
has
referred to the "unaccustomed proximity"l of corporate
law
and
labour
law,
and
indeed, little recognition of
the
other's significance is
evident
in
the
reforms
unfolding
in
each of these vital fields. This article focuses
on
the
relevance of corporate
law
to
labour
lawyers. Its message, however,
might
just as easily
be
reversed.
The
new
enterprise
bargaining
regime
under
the Industrial Relations Reform Act
1993 (Cth) represents a
sharp
break
with
Australian
labour
law's evolutionary past.
Not
only
does
it
constitute amajor shift
away
from
our
characteristic
award-based
system
of
industrial
relations,2 it also mirrors a
burgeoning
international
trend
towards
*
1
2
BA
LLB
(Hons) (Syd),
BCL
(Oxon), University
of
Sydney.
An
earlier
version
of
this
paper
was
presented
at
the
Third
Annual
Labour
Law
Conference, Sydney, 1995
and
will
be
published
in
aforthcoming
book
of
conference proceedings entitled
Enterprise
Bargaining,
Trade
Unions
and
the
Law.
I
would
like to
thank
Jonathan
Morrow
for his research
assistance
and
a
number
of
people
who
generously gave their time to discuss
some
of
the
issues
in
this
paper.
These include Katherine Stone,
Harry
Katz,
John
Colvin,
Greg
McCarry, Ron McCallum,
Angus
Corbett, Dimity Kingsford Smith
and
Edward
Wright.
Research Assistance for this project
was
provided
by
the
Australian
Research Council
and
the
Law
Foundation
of
New
South
Wales.
K W
Wedderburn,
"Companies
and
Employees:
Common
Law
or
Social Dimension?"
(1993) 109
LQR
220
at
221. For examples
of
recent "colonisations"
of
formerly distinct areas
of
legal
study,
however, see HCollins, "Organizational Regulation
and
the
Limits
of
Contract"
in
JMcCahery, SPicciotto, CScott (eds),
Corporate
Control
and
Accountability:
Changing
Structures
and
the
Dynamics
of
Regulation
(1993) 91.
See R C McCallum, "The Internationalisation
of
Australian
Industrial
Law:
The
Industrial
Relations
Reform
Act 1993" (1994) 16 Syd L
Rev
122.
1995
Enterprise
Bargaining,
Corporations
and
Employees
205
decentralisation of collective
bargaining
power.3While commentators
disagree
on
the
primary
forces
driving
this international trend,4 its significance is
not
in
doubt.
Australia's
new
enterprise
bargaining
regime exemplifies the
"unaccustomed
proximity" of corporate
and
labour
law, continuing the tradition of segregation
between
these
two
fields of legal study. The regime accords virtually
no
significance to
the
issue of
whether
an
employer
is acorporation. This indifference is consistent
with
a
contractual
paradigm,
under
which
the identity of the parties is
not
per
se
a
matter
of
importance. While it is
true
that
the enterprise flexibility
agreement
provisions,
which
allow agreements to
be
negotiated
in
individual
workplaces
without
union
involvement,S
apply
only to corporate employers, this is merely aconstitutional
matter,
deriving
from
use
of the corporations
power
as abasis for these provisions.6
No
substantive
consequences flow from
the
employer's corporate status.7
The effect of
the
new
enterprise
bargaining
provisions is to focus attention
on
individual
workplace bargains,
through
which
employees are responsible for
protection of their interests. Implicit
in
the contractual
model
underpinning
this regime
are a
number
of assumptions.
Perhaps
the
most
significant of these is
that
the
employer
and
employee
are
separate
parties
with
distinct interests. For example,
the
only
restriction
on
content of enterprise flexibility agreements
under
the
Act
is
that
the
agreements
concern "matters pertaining to the relationship
between
employers
and
employees",8
words
which
treat the parties
and
their interests as distinguishable. This
reflects
labour
law's traditional
treatment
of employers as
natural
persons.
It
is a
tradition,
however,
which
is
now
anachronistic. The commercial reality is
that
employers
tend
overwhelmingly to
be
corporations. Indeed,
true
commercial realism
would
recognise
that
the
majority of employers are companies
within
corporate
3
4
S
6
7
8
See H C Katz, "The Decentralization
of
Collective Bargaining: ALiterature Review
and
Comparative
Analysis" (1993) 47 Industrial
and
Labor
Relations
Review
3, for
an
examination
of
manifestations
and
implications
of
this
trend
in
Australia, Sweden,
Germany,
Italy,
the
United
Kingdom
and
the
United
States. According to Professor Katz, Australia
and
Sweden
had
the
most
highly centralised
bargaining
structures
prior
to
the
trend
to
decentralisation.
Various
hypotheses
for
the
decentralisation
trend
exist. These include conjecture
that
the
trend
results from,
and
maintains, increased
management
power;
that
it
reflects
the
emerging
importance
of "fast
and
innovative reactions
to
changing
market
conditions",
particularly
in
times
of
economic crisis (see WStreeck, "Neo-Corporatist
Industrial
Relations
and
the
Economic Crisis
in
West Germany"
in
JH
Goldthorpe
(ed),
Order
and
Conflict
in
Contemporary
Capitalism
(1984)
291
at 293-294);
or
that
it
emanates
from
the
decentralisation
of
the
corporate organisational structure,
in
which
responsibility for
industrial
relations is shifted to lower-level managers. See generally H C Katz, above n 3
at
12-17.
Industrial
Relations Reform Act 1993 (Cth), ss 170NA-NP.
See s51(xx)
of
the
Constitution,
which
grants
the
federal
parliament
power
to
make
laws
with
respect to "foreign corporations,
and
trading
or
financial corporations
formed
within
the
limits
of
the Commonwealth".
On
the scope
of
the corporations
power
regarding
industrial
matters, see
the
recent decision
Re
Dingjan;
Ex
parte
Wagner
(1995) 128 ALR 81.
For
some
of
the
consequences of constructing enterprise flexibility (or Division 3)
agreements
on
the
corporations
power,
as
opposed
to
the
industrial
power
under
s51(xxxv) of
the
Constitution, see R
Naughton,
"The
New
Bargaining Regime
Under
the
Industrial
Relations Reform Act" (1994) 7Aust J
Labour
Law
147
at
156-158.
Industrial
Relations Reform Act 1993 (Cth), ss 170NA(1)(b)
and
170NC(1)(a). See also
Industrial
Relations Act 1988 (Cth), s3(a).
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