Reconceiving Judicial Office Through a Labour Law Lens
| DOI | 10.1177/0067205X19831826 |
| Published date | 01 June 2019 |
| Author | Alysia Blackham |
| Date | 01 June 2019 |
| Subject Matter | Articles |
Article
Reconceiving Judicial Office
Through a Labour Law Lens
Alysia Blackham*
Abstract
Judges fulfil a fundamental constitutional role in democratic systems. Most research on judges,
though, focuses on the public and constitutional significance of the judicial role, not the needs of
individual judges. This article applies a labour law lens to help reconceive the judicial role in a way
that balances the individual and collective needs of judges with the institutional and constitutional
needs of the third arm of government, drawing on comparative analysis of Australia and the United
Kingdom, and examples from common law countries. I argue that, while some progress has been
made towards using labour law to structure and inform judicial roles, labour law offers new insights
into how judges and judicial work might be supported. This may both assist judges in their indi-
vidual capacity and support the judiciary as an institution. It therefore has significance for judges as
individuals and the judiciary’s fundamental constitutional role.
Introduction
Judges fulfil a fundamental constitutional role in democratic systems, including in resolving
disputes,
1
applying (and making) law,
2
acting as ‘a safeguard against arbitrary power’
3
by
scrutinising government acts and legislation,
4
upholding the rule of law and protecting individ-
ual rights.
5
In constitutional law scholarship, much focus has been paid to how judicial institu-
tions can secure and balance judicial accountability with judicial independence, with the
ultimate goal of maintaining public confidence in the judicial system to secure the courts’
constitutional role.
6
While some attention has been paid to how the terms and conditions of
judicial office might impact upon constitutional principles, the fundamental concern remains
with securing the constitutional role of judicial institutions, not the position of judges as indi-
viduals. Scant attention has been paid to judicial careers in the existing literature:
7
research on
work, careers and the professions rarely includes or considers the judiciary.
8
Most research on
judges, then, arguably tends to ignore that judges are human, instead focusing on the public and
constitutional significance of the judicial role.
9
Increasingly, however, there is an acknowledgement that judges are not just ‘judicial officers’:
they are also individuals, with particular needs and requirements. Further, there is growing
* Associate Professor and Australian Research Council Discovery Early Career Research Fellow, Melbourne Law School,
University of Melbourne, Australia. The author can be contacted at alysia.blackham@unimelb.edu.au.
Federal Law Review
2019, Vol. 47(2) 203–230
ªThe Author(s) 2019
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DOI: 10.1177/0067205X19831826
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recognition that if judges are not supported effectively, they will be unable to fulfil their consti-
tutional role optimally. The contemporary judiciary faces fundamental institutional and personal
challenges, including in relation to the pursuit of diversity; part-time work; managing mental
health, stress and capacity issues; ensuring proper support for judges, including in relation to
ethical concerns; and providing proper resourcing to the court.
10
These are challenges that go to
the heart of the sustainability and efficacy of the judicial role. Thus, it is timely to reconsider how
judges are supported and treated as they fulfil their constitutional function.
In a general employment setting, labour law provides a means of balancing the interests of
workers with those of employers to reach outcomes that support both individual needs and orga-
nisational priorities. Kahn-Freund sees this as balancing the inequality of bargaining power inher-
ent in the employment relationship.
11
Given the limited power that resides in individual workers,
and the limited effectiveness of law in regulating the workplace, Kahn-Freund posits unions as
having a fundamental role in balancing employer power: ‘On the labour side, power is collective
power.’
12
Labour law offers ‘reasonably predictable procedures’ by which the inevitable conflicts
of interest between capital and labour might be adjusted and negotiated.
13
Similarly, Collins argues that employment law aims to ensure that the labour market functions
effectively as a market, while also protecting workers against excesses of market logic.
14
Any
balance between these competing interests will be ‘complex and contested’ and has no fixed
solution: rather, it is continually adapting to new contexts and demands.
15
From an industrial
pluralism perspective, collective bargaining could then be seen as a means of reducing social
conflict and preventing industrial conflict from escalating into political revolution.
16
Organisations
of workers are therefore granted rights to bargain collectively and engage in industrial action, but
also accept limits being placed on their activities, such as through restrictions on allowable
industrial action and political strikes.
17
In the judicial context, a labour law lens could pro vide a means of recon ceiving the judic ial
role in a way that balances the individual and collective needs of judges with the institutional and
constitutional needs of the third arm of government. A ‘labour law lens’ in this context means a
view of judicial office that is informed by individual and collective labour rights and entitle-
ments, which considers the applicability of labour law to the work of judging. Individual labour
rights in Australia and the UK focus on a number of similar issues, such as protection from
discrimination; minimum statutory terms and conditions of employment (including those relat-
ing to pay, working time, flexible work, pensions and leave entitlements); protection in the event
of termination (including protection from unfair dismissal, notice requirements and redundancy
provisions); and occupational health and safety. Collective labour rights in Australia and the UK
focus on the right to organise collectively, collectively bargain over terms and conditions of
work, and take industrial action.
Judges occupy a comparatively privileged position when compared with most employees in the
labour market. As a result, many minimum standards will not apply, particularly those that relate to
minimum rates of pay, pension entitlements and protection from termination. In these areas, judges
have terms and conditions of work that well exceed the statutory minima.
18
In other areas,
however, labour law offers comparative benefits to judges’ existing conditions of work, particu-
larly in relation to collective labour rights, discrimination law and workplace flexibility. It is these
areas of labour law that are the focus of this article.
Of course, ‘judges cannot be considered in the same light as employees of commercial orga-
nisations or public servants’:
19
the fundamental constitutional role of the judiciary and the need to
204 Federal Law Review 47(2)
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