Enterprise Bargaining as a Tool to Reduce Regulatory Layering: A Content Analysis Study
| DOI | 10.22145/flr.42.3.6 |
| Author | Carolyn Sutherland |
| Date | 01 September 2014 |
| Published date | 01 September 2014 |
| Subject Matter | Article |
ENTERPRISE BARGAINING AS A TOOL TO REDUCE
REGULATORY LAYERING: A CONTENT ANALYSIS STUDY
Carolyn Sutherland*
ABSTRACT
This article assesses whether Australia’s syste m of enterprise bargaining has helped to
streamline workplace relations rules by replacing overlapping industria l instruments
with a single enterprise agreement. It presents empirical findings from a content analysis
study of enterprise agreements made in the higher educa tion and fast food sectors
between 1993 and 2011. These findings suggest that there has been a remarkable shift
over time in the contribution of enterp rise agreements to the problem of regulatory
‘layering’. Whereas the majority of early agreements exacerbated the problem by
inserting new arrangements on top of existing industrial instru ments, more recent
agreements have tended to replace multiple instr uments with a single agreement. The
empirical findings also point to var ious ways in which legislativ e reforms and funding
incentives have contribute d to this shift towards greate r simplicity in the workplace
relations system.
I INTRODUCTION
In Australia, the rules that govern workplace relations are typically found in multiple ,
overlapping industrial instruments. Thi s form of regulatory layering can make it
difficult for workers and employers to locate and interpret their rights a nd obligations
at the workplace. Since the commencement of enterprise bargaining in the early 1990s,
successive Governments have urged the ba rgaining parties to streamline workplace
relations rules by replacing multiple instruments with a single enterprise agreement.
This is one aspect of a multi-faceted, and sometimes ill-defined, policy goal that
encouraged the creation of ‘simple’ enterprise agreements. It was envisaged that these
agreements would set out workplace conditions in a single document, in a f orm that is
easy for workers to understand and straightf orward for businesses to apply. 1
* Senior Lecturer, Ethical Business Regulation Group, Monash Business School, Monash
University. My thanks go to Richard Mitchell, Anthony Forsyth, Chris Arup, Richard
Johnstone and Andrew Stewart for their close engagement with the ideas presented in this
paper and their insightful responses to earlier material that provided the foundation for this
paper. I am also grateful to the anonymous referees for their helpful insights.
1 For a detailed account of the policy of simplicity in the context of enterprise bargaining, see
Carolyn Sutherland, ‘Mapping Complexity in Australian Enterprise Agreements: A Multi-
Dimensional Approach’ (2013) 26 Australian Journal of Labour Law 50.
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560 Federal Law Review Volume 42
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This article presents empirical findings a bout the contribution of enterprise bar gaining
to the problem of regulatory layering within the workplac e relations system. These
findings form part of a larger study b y the author that examines the c omplexity of
enterprise agreements as a multi-dimensional phenomenon. The aim of the broader
empirical study is to evaluate the effectiveness of the policy of simplicity by examining
the extent to which enterprise agreements have changed over time with respect to four
types of complexity: technicality, density, unce rtainty and differentiation.2 The study
also explores some of the legislative factors t hat have contributed to the shifts in
complexity and simplicity in these agree ments.3 This paper reports on only one aspect
of complexity: differentiation.
Differentiation is unlike the other types of legal complexity tha t are examined in the
broader study since it addresses not only the texts of legal rules, b ut also their source
and location, in order to assess the integration of t he legal system as a whole. An
institutionally differentiated legal system ‘con tains a number of decision structures that
draw upon different sources of legitimacy, possess different kind s of organisational
intelligence, and employ different de cision processes for creating, elabor ating, and
applying the rules’.4
In Australian workplaces, workplace rules are found in a wide range of public and
private industrial instruments, all drawing upon ‘different sources of legitimac y’.5 In the
context of enterprise bargaining, the level of differentiation within the work place
relations system increases (and the complexity of the system increa ses) when
agreements contribute an additional regulatory layer t o existing layers of regulation.
Drawing on data from enterprise agreements made in the higher education and fast
food sectors between 1993 and 2011, the findings outlined in this article address three
key questions. First, to what extent have enterprise agreements within the higher
education and fast food sector s changed over time in their contribution to the problem
of regulatory layering of employment conditions. T o put it another way, over the period
1993 to 2011, have enterprise agreements increased or reduced the number of industrial
instruments that must be consulted to identify emplo yment conditions at the workplace
level? Second, to what extent are any of these changes in higher education and fast f ood
agreements explained by changes to the legislative framework? The ans wers to these
questions will help to address a third, o verarching question: to what extent ha s the
policy goal of achieving greater simplicity in the workp lace relations system been
achieved by replacing multiple indu strial instruments with a single enter prise
agreement in the higher edu cation and fast food sectors?
By using empirical methods to explore these is sues, this study follows in the vein of
earlier Australian studies that have e xamined the impact of legislati on and particularly
those that have investigated whether the law achieves its objectives.6 These studies are
2 These four analytical constructs are drawn from Peter H Schuck, ‘Legal Complexity: Some
Causes, Consequences, and Cures’ (1992) 42 Duke Law Journal 1, 5.
3 For an overview of the larger study, see Sutherland, ‘Mapping Complexity’, above n 1; for
an analysis of the findings in relation to the first of the constructs (technicality), see Carolyn
Sutherland, ‘The Elusive Quest for Simplicity: Measuring and Assessing the Readability of
Enterprise Agreements, 1993 to 2011’ (2013) 35 Sydney Law Review 349.
4 Schuck, above n 2, 4.
5 Ibid.
6 See, eg, Richard Mitchell et al, ‘What’s Going on with the “No Disadvantage Test”? An
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