Labour Law and Human Rights: an interesting Australian development

Those damn Aussies always try to go one better-and in one respect have succeeded.  The Human Rights (Parliamentary Scrutiny) Act 2011 will commence on 4 January 2012. The new Act will is intended to improve parliamentary scrutiny of legislation for consistency with Australia’s human rights obligations through two measures:

• requiring that all new bills and disallowable legislative instruments be accompanied by an assessment of compatibility with human rights, and
• establishing a new Parliamentary Joint Committee on Human Rights.

The definition of human rights is particularly broad and goes well beyond that in the New Zealand Bill of Rights Act 1990.  The scope of the compatibility report will in turn need to be much broader than that provided under s 7 of the New Zealand Act. It also appears that in Australia an assessment will be required for all legislation, not just where there is an apparent inconsistency.

The definition of human rights for the purpose of parliamentary scrutiny is particularly wide as human rights are defined as the rights and freedoms in the seven core United Nations treaties to which Australia is a party:

• International Covenant on Civil and Political Rights
• International Covenant on Economic, Social and Cultural Rights
• International Convention on the Elimination of All Forms of Racial Discrimination
• Convention on the Elimination of All Forms of Discrimination against Women
• Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
• Convention on the Rights of the Child
• Convention on the Rights of Persons with Disabilities

This should lead to some interesting reading in the assessment statements.  It would have been interesting to see such statements in New Zealand and readers might care to contemplate those on recent labour law changes in the light of the extracts below.The interesting bit  from a labour law perspective is  articles 6 -8  of the International Covenant on Economic, Social and Cultural Rights.

Article 6
1. The States Parties to the present Covenant recognize the right to work, which includes the right of
everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take
appropriate steps to safeguard this right.
2. The steps to be taken by a State Party to the present Covenant to achieve the full realization of this
right shall include technical and vocational guidance and training programmes, policies and techniques
to achieve steady economic, social and cultural development and full and productive employment
under conditions safeguarding fundamental political and economic freedoms to the individual.
 
Article 7
The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just
and favourable conditions of work which ensure, in particular:
(a) Remuneration which provides all workers, as a minimum, with:
(i) Fair wages and equal remuneration for work of equal value without distinction of any kind, in
particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal
pay for equal work;
(ii) A decent living for themselves and their families in accordance with the provisions of the present
Covenant;
(b) Safe and healthy working conditions; (c) Equal opportunity for everyone to be promoted in his
employment to an appropriate higher level, subject to no considerations other than those of seniority
and competence;
(d ) Rest, leisure and reasonable limitation of working hours and periodic holidays with pay, as well as
remuneration for public holidays
 
Article 8
1. The States Parties to the present Covenant undertake to ensure:
(a) The right of everyone to form trade unions and join the trade union of his choice, subject only to
the rules of the organization concerned, for the promotion and protection of his economic and social
interests. No restrictions may be placed on the exercise of this right other than those prescribed by law
and which are necessary in a democratic society in the interests of national security or public order or
for the protection of the rights and freedoms of others;
(b) The right of trade unions to establish national federations or confederations and the right of the
latter to form or join international trade-union organizations;
(c) The right of trade unions to function freely subject to no limitations other than those prescribed by
law and which are necessary in a democratic society in the interests of national security or public order
or for the protection of the rights and freedoms of others;
(d) The right to strike, provided that it is exercised in conformity with the laws of the particular
country.
2. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by
members of the armed forces or of the police or of the administration of the State. 
3. Nothing in this article shall authorize States Parties to the International Labour Organisation Convention of 1948 concerning Freedom of Association and Protection of the Right to Organize to take legislative measures which would prejudice, or apply the law in such a manner as would prejudice, the guarantees provided
for in that Convention.

NZ Labour Law Association Inaugural Conference

The New Zealand Labour Law Association Inc will, in association with Victoria University's School of Law, hold its inaugural conference on Friday 2nd December this year. The final programme is yet to be confirmed and papers may be submitted for possible presentation. One theme will be issues from Australia. Prof Andrew Stewart of the University of Adelaide will provide an account of current developments in Australian law and the Fair Work Act and Prof Richard Johnstone from Griffith will speak on the proposed Australian model OSH law.


You can register online and find further information at http://www.victoria.ac.nz/law/about/events/2011/labour-law-conf.aspx

Employment and the Minimum Wage

Two Australian academics have recently published an article on the minimum wage and its employment effects in the British Journal of Industrial Relations [Wang-Sheng Lee and Sandy Suardi Minimum Wages and Employment: Reconsidering the Use of a Time Series Approach as an Evaluation Tool (2011) 49 BJIR 376-401]

The article analyses teenage employment in Australia for the period 1992 to 2008 which covers the period before and after the introduction of a federal minimum wage in 1997. The authors tentative conclusion is "that the seven minimum wage increases in Australia from 1997 to 2003 appear to not have had any significant negative employment effects for teenagers.” The authors suggest that one explanation for this is that “the increases have generally been moderate and predictable, closely tracking the general rise in price levels. Furthermore, they also add that for three states their analysis is “suggestive of a possible adaptation to the new regime.”

Others with more statistical and economic expertise may have views on the authors’ methodology and findings but for the more general reader it is worth noting one point made in the article. The authors refer to a meta-analysis of the minimum wage literature, [Doucouliagos, H. and Stanley, T. (2009). ‘Publication selection bias in minimum wage research? A meta-regression analysis’. 47 BJIR 406-428] and notes that” this analysis finds that research on minimum-wage effects contains the clear trace of selection for adverse employment effects. Once publication selection bias in the minimum wage literature is corrected, they find that little or no evidence of a negative association between minimum wages and employment remains.” (emphasis added).

Contractors across the ditch

Occasionally it is interesting to glance across the Tasman. In Australia independent contracting has a considerably higher political profile than in New Zealand. Indeed in Dr Craig Emerson Australia has a Minister for, among other things, independent contractors. The reason for this profile appears in part to be due to the lobbying activities of groups that either use or claim to represent independent contractors such as the Housing Industry Association and the Independent Contractors Association. The latter is a small but very vocal body which purports to represent the many hundreds of thousands of contractors in Australia: apparently it is committed to promoting a free choice between the “powerlessness and bondage of employment” and the “equality and liberation of shared power under independent contracting.” While the description of employment may ring some bells the description of independent contracting seems a tad overoptimistic particularly for that group of contractors who are better described as “disguised employees” or “dependent contractors. Nevertheless it seems that both the Labor and Coalition parties have become committed to supporting ‘the choice of Australians to pursue a career as independent contractors’.

Shae McCrystal of Sydney Law School, suggests that in Australia independent contractors are increasingly seen as a distinct class of small business actors deserving their own regulatory attention. The Howard government for example passed an Independent Contractors Act, mainly to limit the ability of the states to apply employment-like protection to contractors, but the Act which is still in force does allow contractors covered by it (don’t even ask about Australian constitutional complications) to challenge unfair contracts – in a recent case contracts with owner-drivers were held to be unfair when they allowed the principal to require upgrades to trucks (from singletrailers to B-doubles) where there was no provision for reasonable compensation for the extra expense. The new Fair Work Act 2009 provides some limited protection by prohibiting misrepresenting employment as an independent contracting arrangement and dismissing an employee in order to re-engage them as a contractor.

Nevertheless, as in New Zealand, dependent contractors are caught between a rock and a hard place. They are excluded from the protective coverage of labour legislation, including the right to form unions and to bargain collectively, while trade practices legislation generally regards any efforts to collectively improve conditions of work as unlawful. In a recent article, “Is there a 'Public Benefit' in Improving Working Conditions for Independent Contractors? Collective Bargaining and the Trade Practices Act 1974 (Cth)”, McCrystal looks in some detail at the position of contractors under Australia’s trade practices legislation. Groups of contractors may apply for permission to engage in conduct that might otherwise breach Act but for an application to be successful the Commission needs to be satisfied that any public benefit from the conduct is outweighed by the likely public detriment. Such applications have almost always failed.

McCrystal summarises the position as follows: “The public benefit test does not accommodate the argument that improved control over working conditions can be a public benefit in and of itself, especially where it ultimately increases the cost of service provision. Additionally, the competition regulators appear unable to conceive of countervailing bargaining power as a public good of itself. Potentially coercive collective action operating in opposition to strong market power is considered too great an anti-competitive risk to be allowed. Parties with no market power may, if a notification is allowed, collectively try to pursue efficiency gains provided that the collective does not seek to exercise any muscle. Groups with existing market power, however theoretical, cannot combine.”
McCrystal's article can be downloaded without charge from the Social Science Research Network Electronic Library at: http://ssrn.com/abstract=1491855.]