Statutory Norms and Common Law Concepts in the Characterisation of Contracts for the Performance of Work
Total Page:16
File Type:pdf, Size:1020Kb
Load more
Recommended publications
-
Resolving Individual Labour Disputes: a Comparative Overview
Resolving Individual Labour Disputes A comparative overview Edited by Minawa Ebisui Sean Cooney Colin Fenwick Resolving individual labour disputes Resolving individual labour disputes: A comparative overview Edited by Minawa Ebisui, Sean Cooney and Colin Fenwick International Labour Office, Geneva Copyright © International Labour Organization 2016 First published 2016 Publications of the International Labour Office enjoy copyright under Protocol 2 of the Universal Copyright Convention. Nevertheless, short excerpts from them may be reproduced without authorization, on condition that the source is indicated. For rights of reproduction or translation, application should be made to ILO Publications (Rights and Licensing), International Labour Office, CH-1211 Geneva 22, Switzerland, or by email: [email protected]. The International Labour Office welcomes such applications. Libraries, institutions and other users registered with a reproduction rights organization may make copies in accordance with the licences issued to them for this purpose. Visit www.ifrro.org to find the reproduction rights organization in your country. Ebisui, Minawa; Cooney, Sean; Fenwick, Colin F. Resolving individual labour disputes: a comparative overview / edited by Minawa Ebisui, Sean Cooney, Colin Fenwick ; International Labour Office. - Geneva: ILO, 2016. ISBN 978-92-2-130419-7 (print) ISBN 978-92-2-130420-3 (web pdf ) International Labour Office. labour dispute / labour dispute settlement / labour relations 13.06.6 ILO Cataloguing in Publication Data The designations employed in ILO publications, which are in conformity with United Nations practice, and the presentation of material therein do not imply the expression of any opinion whatsoever on the part of the International Labour Office concerning the legal status of any country, area or territory or of its authorities, or concerning the delimitation of its frontiers. -
Right to Freedom of Association in the Workplace: Australia's Compliance with International Human Rights Law
UCLA UCLA Pacific Basin Law Journal Title The Right to Freedom of Association in the Workplace: Australia's Compliance with International Human Rights Law Permalink https://escholarship.org/uc/item/98v0c0jj Journal UCLA Pacific Basin Law Journal, 27(2) Author Hutchinson, Zoé Publication Date 2010 DOI 10.5070/P8272022218 Peer reviewed eScholarship.org Powered by the California Digital Library University of California ARTICLES THE RIGHT TO FREEDOM OF ASSOCIATION IN THE WORKPLACE: AUSTRALIA'S COMPLIANCE WITH INTERNATIONAL HUMAN RIGHTS LAW Zoe Hutchinson BA LLB (Hons, 1st Class)* ABSTRACT The right to freedom of association in the workplace is a well- established norm of internationalhuman rights law. However, it has traditionally received insubstantial attention within human rights scholarship. This article situates the right to freedom of as- sociation at work within human rights discourses. It looks at the status, scope and importance of the right as it has evolved in inter- nationalhuman rights law. In so doing, a case is put that there are strong reasons for states to comply with the right to freedom of association not only in terms of internationalhuman rights obliga- tions but also from the perspective of human dignity in the context of an interconnected world. A detailed case study is offered that examines the right to free- dom of association in the Australian context. There has been a series of significant changes to Australian labor law in recent years. The Rudd-Gillard Labor government claimed that recent changes were to bring Australia into greater compliance with its obligations under internationallaw. This policy was presented to electors as in sharp contrast to the Work Choices legislation of the Howard Liberal-Nationalparty coalitiongovernment. -
Understanding Australian Labour Law
Ul/d"I',"I"'''/iIlK Austruliun Labour '''</\1' '27 Understanding Australian Labour Law Kerl Spooner University of Technology, Sydney TIll' purpose of II';.~paper is 10 provide an (}\'erl'iew ofthe legaljramework with in which employmetu ronditions are established in Australia. Comparative studies in lirefield of employment relations can promote understanding ofthe factors and processes that determine such phenomena and ('(III genera te a better understanding I!f our own country's institutions and practices. 71,1' need/ill" such understanding is becoming more urgent in the context (!{ globalisatio« lind the quest for some understanding of what might be deemed as socially responsible employment conditions. However, comparative international employment relation '.I' StII{~Valso presents particular chollenges, as there are international differences ill terminology as 11'1'/1 as problems in distinguishing between the loll' and actual practice. This paper aims lit assisting the development ofcomparative empkrytnen! relations studv by providing 0 detailed but simplified examination o] Australian labourIaw which mightform the basesforfuture comparative studv. Introduction Governments of all political persuasions in all industrial and industriajising countries pass laws establishing the framework within which employment relations institutions and processes are determined. The rights of individuals in employment flow either directly from legal standards established by government 01' from thlf operations of institutions and processes provided under the law. The forces of globalisation have a siglfificanl impact upon employment conditions and have increased the need for understanding of labour law at internauonal and naiional levels. There is considerable and growing pressure for multi- national organisations operating in countries offering cheap labour to provide employment conditions that are socially responsible. -
THE ADELAIDE LAW REVIEW Law.Adelaide.Edu.Au Adelaide Law Review ADVISORY BOARD
Volume 40, Number 3 THE ADELAIDE LAW REVIEW law.adelaide.edu.au Adelaide Law Review ADVISORY BOARD The Honourable Professor Catherine Branson AC QC Deputy Chancellor, The University of Adelaide; Former President, Australian Human Rights Commission; Former Justice, Federal Court of Australia Emeritus Professor William R Cornish CMG QC Emeritus Herchel Smith Professor of Intellectual Property Law, University of Cambridge His Excellency Judge James R Crawford AC SC International Court of Justice The Honourable Professor John J Doyle AC QC Former Chief Justice, Supreme Court of South Australia Professor John V Orth William Rand Kenan Jr Professor of Law, The University of North Carolina at Chapel Hill Professor Emerita Rosemary J Owens AO Former Dean, Adelaide Law School The Honourable Justice Melissa Perry Federal Court of Australia The Honourable Margaret White AO Former Justice, Supreme Court of Queensland Professor John M Williams Dame Roma Mitchell Chair of Law and Former Dean, Adelaide Law School ADELAIDE LAW REVIEW Editors Associate Professor Matthew Stubbs and Dr Michelle Lim Book Review and Comment Editor Dr Stacey Henderson Associate Editors Kyriaco Nikias and Azaara Perakath Student Editors Joshua Aikens Christian Andreotti Mitchell Brunker Peter Dalrymple Henry Materne-Smith Holly Nicholls Clare Nolan Eleanor Nolan Vincent Rocca India Short Christine Vu Kate Walsh Noel Williams Publications Officer Panita Hirunboot Volume 40 Issue 3 2019 The Adelaide Law Review is a double-blind peer reviewed journal that is published twice a year by the Adelaide Law School, The University of Adelaide. A guide for the submission of manuscripts is set out at the back of this issue. -
Trade Union Regulation and the Accountability of Union Office-Holders: Examining the Corporate Model
JOBNAME: No Job Name PAGE: 1 SESS: 1 OUTPUT: Thu Jul 17 11:41:04 2003 /journals/journal/ajll/vol13/07−00224 Trade Union Regulation and the Accountability of Union Office-Holders: Examining the Corporate Model Anthony Forsyth* Australian trade unions have traditionally been subjected to high levels of legal regulation. This has resulted in the development of a substantial body of federal law imposing standards of accountability on unions, and regulating the conduct of their officials. In recent years, the federal government has suggested that unions should be subjected to further regulation. In particular, the government has proposed that new accountability measures borrowed from corporations law should be imposed on unions. This article examines the government’s proposals, focussing on those that would fix union officials with fiduciary and other duties similar to those applying to company directors. The conclusion is reached that the many differences between unions and companies — in terms of the reasons they exist, the purposes they serve, the interests created in their members and the role and functions of their managers — are such that the imposition of a corporate model of regulation on trade unions is inherently flawed. For this and other reasons, including the decline of the arbitration system and the statutory support it provided to unions, it is argued no justification can be made out for the government’s proposals. Introduction In recent years, Australian trade unions have been confronted with a series of legislative changes, at both state and federal level, which have challenged their traditional role and influence in the workplace. -
The Comparative Distinctiveness of Equity
(2016) 2(2) CJCCL 403 The Comparative Distinctiveness of Equity Justice Mark Leeming Judge of Appeal of the Supreme Court of New South Wales* 2016 CanLIIDocs 51 Comparative law is difficult and controversial. One reason for the difficulty is the complexity of legal systems and the need for more than a merely superficial knowledge of the foreign legal system in order to profit from recourse to it. One way in which it is controversial is that it has been suggested that the use of comparative law conceals the reasons for decisions reached on other grounds. This paper maintains that equity is distinctive, and that one of the ways in which equity is different from other bodies of law is that there is greater scope for the development of equitable principle by reference to foreign jurisdictions. That difference is a product of equity’s distinctive history, underlying themes and approach to law-making. Those matters are illustrated by a series of recent examples drawn from appellate courts throughout the Commonwealth. * I am grateful for the assistance provided by Kate Lindeman and Hannah Vieira in the preparation of this article. All errors are mine. 404 Leeming, The Comparative Distinctiveness of Equity I. Introduction II. The Problem of Generality III. The Use of Foreign Equity Decisions IV. The Variegated Common Law of the Commonwealth V. Three Examples of Equitable Principle in Ultimate Appellate Courts A. Barnes v Addy: Liability for Knowing Assistance in Australia, Canada, and the United Kingdom B. Qualifications to the Rule in Saunders v Vautier C. Judicial Advice 2016 CanLIIDocs 51 VI. -
Chapter One the Seven Pillars of Centralism: Federalism and the Engineers’ Case
Chapter One The Seven Pillars of Centralism: Federalism and the Engineers’ Case Professor Geoffrey de Q Walker Holding the balance: 1903 to 1920 The High Court of Australia’s 1920 decision in the Engineers’ Case1 remains an event of capital importance in Australian history. It is crucial not so much for what it actually decided as for the way in which it switched the entire enterprise of Australian federalism onto a diverging track, that carried it to destinations far removed from those intended by the generation that had brought the Federation into being. Holistic beginnings. How constitutional doctrine developed through the Court’s decisions from 1903 to 1920 has been fully described elsewhere, including in a paper presented at the 1995 conference of this society by John Nethercote.2 Briefly, the original Court comprised Chief Justice Griffith and Justices Barton and O’Connor, who had been leaders in the federation movement and authors of the Commonwealth of Australia Constitution. The starting-point of their adjudicative philosophy was the nature of the Constitution as an enduring instrument of government, not merely a British statute: “The Constitution Act is not only an Act of the Imperial legislature, but it embodies a compact entered into between the six Australian colonies which formed the Commonwealth. This is recited in the Preamble to the Act itself”.3 Noting that before Federation the Colonies had almost unlimited powers,4 the Court declared that: “In considering the respective powers of the Commonwealth and the States it is essential to bear in mind that each is, within the ambit of its authority, a sovereign State”.5 The founders had considered Canada’s constitutional structure too centralist,6 and had deliberately chosen the more decentralized distribution of powers used in the Constitution of the United States. -
IRJ Introductory Paper
Editors' introduction: Australian industrial relations in transition Author Wilkinson, Adrian, Bailey, Janis, Mourell, Mark Published 2009 Journal Title Industrial Relations Journal Copyright Statement © 2009 Wiley-Blackwell Publishing. This is the author-manuscript version of the paper. Reproduced in accordance with the copyright policy of the publisher.The definitive version is available at www.interscience.wiley.com Downloaded from http://hdl.handle.net/10072/31465 Link to published version http://www.interscience.wiley.com/jpages/0019-8692 Griffith Research Online https://research-repository.griffith.edu.au IRJ Introduction Australia’s industrial relations system has long been hailed as distinctive in the international arena, although it shares many commonalities with the systems of other countries. This Introduction contextualises the papers in this issue, by describing first the birth and development of the system, and secondly the system’s most recent and arguably most tumultuous ten years. The Introduction concludes with a précis of the various papers in the special issue. Australia’s industrial relations system developed as a hybrid system that set a floor of minimum standards via awards, which provided widespread protection for many workers including the most vulnerable, but also enabled collective bargaining where unions had sufficient market power. Australia’s central, and most distinctive, institutional actor, the arbitration commission, was insulated from direct political interference and was independent in its judgements, although it was required to take into account the views of employers and unions – and government – in making its decisions. In some respects, the history of the Australian industrial relations system is a history of the rise and then fall of Australia’s arbitration system. -
The Framework of Australian Labour Law and Recent Trends in ‘Deregulation’
The Framework of Australian Labour Law and Recent Trends in ‘Deregulation’ Joo-Cheong Tham Associate Lecturer, La Trobe University I. INTRODUCTION For most of the twentieth century, the Australian labour law framework centred on the compulsory conciliation and arbitration system. At the heart of this system was an independent industrial tribunal which possessed compulsory powers over industrial disputes including the power to issue binding determinations described as awards. Two other fundamental characteristics of this system were the integration of trade unions into the system and severe restrictions on industrial action.1 Amid the economic difficulties of the 1980s, a strong coalition of political forces emerged advocating, in various ways, the ‘deregulation’ of Australian labour law.2 Under the auspices of the Australian Labor Party federal government (‘ALP government’), such pressure bore fruit with a significant reduction of the role of the compulsory conciliation and arbitration system. In 1996, the Liberal-National Party Coalition federal government (‘the Coalition government’) was elected to office proposing further ‘deregulation’ of Australian labour law. This paper has two key aims. First, it sets out the present framework of Australian labour law. Moreover, it canvasses recent trends in the ‘deregulation’ of Australian labour law. II. FRAMEWORK OF AUSTRALIAN LABOUR LAW The framework of Australian labour law comprises: • the constitutional context; • the federal award system; • statutory agreements; • legislative minimum conditions; and • common law contracts of employment. These various sources of labour regulation will be discussed in turn. A. Constitutional context In Australia, the provisions of the federal Constitution do not directly prescribe working conditions. Being primarily concerned with a division of legislative powers between the federal and State Parliaments, the Constitution’s importance in the realm of labour regulation is in providing the federal Parliament with the power to make laws relating to labour conditions. -
5281 Bar News Winter 07.Indd
CONTENTS 2 Editor’s note 3 President’s column 5 Opinion The central role of the jury 7 Recent developments 12 Address 2007 Sir Maurice Byers Lecture 34 Features: Mediation and the Bar Effective representation at mediation Should the New South Wales Bar remain agnostic to mediation? Constructive mediation A mediation miscellany 66 Readers 01/2007 82 Obituaries Nicholas Gye 44 Practice 67 Muse Daniel Edmund Horton QC Observations on a fused profession: the Herbert Smith Advocacy Unit A paler shade of white Russell Francis Wilkins Some perspectives on US litigation Max Beerbohm’s Dulcedo Judiciorum 88 Bullfry Anything to disclose? 72 Personalia 90 Books 56 Legal history The Hon Justice Kenneth Handley AO Interpreting Statutes Supreme Court judges of the 1940s The Hon Justice John Bryson Principles of Federal Criminal Law State Constitutional Landmarks 62 Bar Art 77 Appointments The Hon Justice Ian Harrison 94 Bar sports 63 Great Bar Boat Race The Hon Justice Elizabeth Fullerton NSW v Queensland Bar Recent District Court appointments The Hon Justice David Hammerschlag 64 Bench and Bar Dinner 96 Coombs on Cuisine barTHE JOURNAL OF THEnews NSW BAR ASSOCIATION | WINTER 2007 Bar News Editorial Committee Design and production Contributions are welcome and Andrew Bell SC (editor) Weavers Design Group should be addressed to the editor, Keith Chapple SC www.weavers.com.au Andrew Bell SC Eleventh Floor Gregory Nell SC Advertising John Mancy Wentworth Selborne Chambers To advertise in Bar News visit Arthur Moses 180 Phillip Street, www.weavers.com.au/barnews Chris O’Donnell Sydney 2000. or contact John Weaver at Carol Webster DX 377 Sydney Weavers Design Group Richard Beasley at [email protected] or David Ash (c) 2007 New South Wales Bar Association phone (02) 9299 4444 Michael Kearney This work is copyright. -
The Hon. Justice Mark Leeming's1 Remarks at the Launch of So
The Hon. Justice Mark Leeming’s1 remarks at the launch of So help me God: a history of oaths of office Parliament House, Sydney 10 June 2021 Since the creation of the Legislative Council and Legislative Assembly in 1823 and 1856, members have taken various oaths of office. The form of the oath has changed with the changing role of the chamber. Let me give you three examples. The original oath taken by the first five councillors who were sworn in in August 1824 extended to a promise of secrecy:2 “I swear, that I will not, directly or indirectly, communicate or reveal to any Person or Persons, any Matter which shall be so brought under my Consideration, or which shall become known to me as a Member of the said Council. So help me GOD”. It may seem strange to modern ears for a councillor to keep events in the Legislative Council entirely secret, until one remembers that in 1824, before the first glimmer of representative government had arrived, deliberations of all five nominated councillors were confidential. In April 1843, when the Council became partially elected, the oath was much longer, not to mention quite lively. It included:3 “I … do sincerely promise and swear … that I will defend Her [Majesty], to the utmost of my Power, against all traitorous Conspiracies and Attempts whatever which shall be made against Her Person, Crown and Dignity; and that I will do my utmost Endeavour to disclose and make known to Her Majesty, Her Heirs and Successors, all Treasons and traitorous Conspiracies and Attempts which I shall know to be against Her or any of them; and all this I do swear without any Equivocation, mental Evasion or secret Reservation, and renouncing all Pardons and Dispensations from any Persons or Persons whatever to the contrary. -
Ageless in the 'Age of Statutes'
JOBNAME: No Job Name PAGE: 4 SESS: 3 OUTPUT: Wed Sep 16 20:48:43 2015 /journals/journal/joe/vol09pt2/part_2 Articles Equity: Ageless in the ‘Age of Statutes’ Mark Leeming* Current legal writing is replete with references to the ‘Age of Statutes’ — for the most part invoking a very different meaning from that intended by Professor Guido Calabresi’s book A Common Law for the Age of Statutes. Identifying what Calabresi was responding to, and what most current writing is responding to, reveals a doubly simplified approach to important aspects of the legal system. One aspect is easily seen: statutes do not speak with one voice, and should not be treated as a single class; complaints about the ‘Age of Statutes’ refer to particular sorts of statutes. The other unduly simplified aspect is less easily seen: Equity’s response to statute is different from the response of common law, for reasons deriving from its different conception of its role and different approach to precedent. When those differences are analysed, patterns of historical continuity may be observed. 1 Introduction There is a lot of casual reference to this ‘Age of Statutes’. The term readily trips off the tongue. In that respect it resembles the so-called ‘Principle of Legality’, whose limited capacity to provide useful guidance has been powerfully criticised,1 despite which it continues regularly to be invoked, mostly in submissions,2 and mostly as a euphonious rebranding of an ancient approach to the construction of statutes which impair certain ‘common law’ rights. * Judge of Appeal, Supreme Court of New South Wales; Challis Lecturer in Equity, University of Sydney.