Enforcing minimum labour standards in Australia from 2010 : correcting or compounding problems

Fair Work Australia is to provide the institutional framework for the Australian industrial relations system from January 2010. Its creation provides the opportunity to improve minimum labour standards’ enforcement in Australia. However, the experience of the past must be appreciated and traditional assumptions about the operation of the Australian enforcement system discarded if the new institution is to be effective in its role. This paper focuses on the role of unions in enforcement as well as institutional location issues to expose a number of central enforcement problems that those seeking to establish new systems and processes should consider. A number of recommendations in respect of the structure of Fair Work Australia and the continuing role of unions are suggested.

Does institutional location protect from political influence? the case of a minimum labour standards enforcement agency in Australia

Among the many factors that influence enforcement agencies, this article examines the role of the institutional location (and independence) of agencies, and an incumbent government's ideology. It is argued that institutional location affects the level of political influence on the agency's operations, while government ideology affects its willingness to resource enforcement agencies and approve regulatory activities. Evidence from the agency regulating minimum labour standards in the Australian federal industrial relations jurisdiction (currently the Fair Work Ombudsman) highlights two divergences from the regulatory enforcement literature generally. First, notions of independence from political interference offered by institutional location are more illusory than real and, second, political need motivates political action to a greater extent than political ideology.

Minimum labour standards enforcement in Australia : caught in the crossfire?

The complex transition from convict to free labour influenced state intervention in the employment relationship, and initiated the first minimum labour standards in Australia in 1828. Since then, two principal sets of tensions have affected the enforcement of such standards: tensions between government and employers, and tensions between the major political parties over industrial and economic issues. This article argues that these tensions have resulted in a sustained legacy affecting minimum labour standards’ enforcement in Australia. The article outlines broad historical developments and contexts of minimum labour standards’ enforcement in Australia since 1828, with more contemporary exploration focusing specifically on enforcement practices and policies in the Australian federal industrial relations jurisdiction. Current enforcement practices are an outcome of this volatile history, and past influences remain strong.

Enforceable undertakings : a new mechanism for minimum labour standards’ enforcement

Regulatory commentators have identified the need for more responsive regulation to allow enforcement agencies to respond to different types and degrees of non-compliance. One tool considered to support responsive enforcement is the Enforceable Undertaking (EU). EUs are used extensively by Australian regulators in decisions that forego litigation in exchange for offenders promising to (amongst other things) correct behaviour and comply in the future. This arguably allows regulatory agencies greater flexibility in how they obtain compliance with regulations. EUs became an additional enforcement tool for the Fair Work Ombudsman (FWO) under the Fair Work Act 2009. This paper is a preliminary exploration of the comparative use of EUs by the Australian Competition and Consumer Commission and the FWO to assess their effectiveness for the minimum labour standards' environment.

Government procurement contracts and minimum labour standards enforcement: Rhetoric, duplication and distraction?

Government contracts for services typically include terms requiring contractors to comply with minimum labour standards laws. Procurement contract clauses specify reporting procedures and sanctions for non-compliance, implying that government contracting agencies will monitor and enforce minimum labour standards within contract performance management. In this article, the case of school cleaners employed under New South Wales government contracts between 2010 and 2011 is the vehicle for exploring the effectiveness of these protective clauses. We find that the inclusion of these protective clauses in procurement contracts is unnecessary in the Australian context, and any expectations that government contracting agencies will monitor and enforce labour standards are misleading. At best, the clauses are rhetoric, and at worst, they are a distraction for parties with enforcement powers.

International labour standards and Queensland

Queensland’s legal labour disputes history does not exhibit the current trend seen in Canada and Switzerland (Gravel & Delpech, 2008) where cases citing International Labour Standards (ILS) are often successful (which is not presently the case in Queensland either). The two Queensland cases (Kuhler v. Inghams Enterprises P/L & Anor, 1997 and Bale v. Seltsam Pty Ltd, 1996) that have used ILSs were lost. Australia is a member state of the International Labour Organization (ILO) and a signatory of many ILSs. Yet, ILSs are not used in their legal capacity when compared to other international standards in other areas of law. It is important to recognize that ILSs are uniquely underutilized in labour law. Australian environmental, criminal, and industrial disputes consistently draw on international standards. Why not for the plight of workers? ILSs draw their power from supranational influence in that when a case cites an ILS the barrister or solicitor is going beyond legal precedence and into international peer pressure. An ILS can be appropriately used to highlight that Australian or Queensland legislation does not conform to a Convention or Recommendation. However, should the case deal with a breach of existing law based or modified by an ILS, citing the ILS is a good way to remind the court of its origin. It’s a new legal paradigm critically lacking in Queensland’s labour law practice. The following discusses the research methodology used in this paper. It is followed by a comparative discussion of results between the prevalence of ILSs and other international standards in Queensland case history. Finally, evidence showing the international trend of labour disputes using ILSs for victory is discussed.

Redesigning the inspection blitz in the post WorkChoices environment

The regulatory enforcement literature proposes a continuum with two principal perspectives to gaining compliance with regulations at its extremes – a compliance approach and a deterrence approach. Within these perspectives a range of strategies and tools are used to support the broad intent of an enforcement agency. One tool is the inspection blitz, concentrating resources where significant non-compliance is suspected. While agencies enforcing minimum labour standards in the Australian federal jurisdiction have traditionally used the blitz strategy as an occasional tool, it is now more regularly used. This paper examines the blitz as an enforcement tool, placing it within the compliance/deterrence perspectives, before exploring its use by the Workplace Ombudsman/Fair Work Ombudsman. We argue that multiple factors have led to the blitz’s redesign in the post-Work Choices environment, and that its current framework and persuasive compliance nature is not appropriate for all situations.

Employer evasion of workers’ entitlements 1968 – 1995: why, what and whose?

Employer non-compliance with workers’ entitlements has been largely ignored in Australian industrial relations. The legal and regulatory literature however, identifies arguments relating to employer propensity to evade regulatory requirements, as well as highlighting environmental factors that may influence such behaviour. This article explores these issues in the Australian federal industrial relations jurisdiction, as well as providing a picture of employer evasion of minimum labour standards between 1986 and 1995: who is exploited and in respect of what entitlements. Industry contexts and common characteristics of non-compliance are outlined by exploration of 30 awards ranked by the extent of underpayments recovered by the federal inspectorate during the period. Employer evasion of workers’ entitlements is arguably a calculated business decision, prompted or facilitated by intense competition, precarious employment (particularly female and youth), non-unionized workplaces and under-resourced enforcement agencies.

Recommendations for the reporting of foot and ankle models

Multiple marker sets and models are currently available for assessing foot and ankle kinematics in gait. Despite the presence of such a wide variety of models, the reporting of methodological designs remains inconsistent and lacks clearly defined standards. This review highlights the variability found when reporting biomechanical model parameters, methodological design, and model reliability. Further, the review clearly demonstrates the need for a consensus of what methodological considerations to report in manuscripts, which focus on the topic of foot and ankle biomechanics. We propose five minimum reporting standards, that we believe will ensure the transparency of methods and begin to allow the community to move towards standard modelling practice. The strict adherence to these standards should ultimately improve the interpretation and clinical useability of foot and ankle marker sets and their corresponding models.

A higher education quality assurance model for small states : the Maldives case study

Increasing globalisation and local expansion of Higher Education presents challenges to manage quality of the education services. This study investigated key stakeholders' perspectives on what constitutes key elements and attributes of an effective Quality Assurance (QA) system in Higher Education. The findings highlighted the need for: i) legislation to support a strong QA regulatory framework, ii) independence of the QA agency, iii) development of minimum quality standards through broad stakeholder involvement, and iv) a cyclical approach. The findings of this study proposed a QA model which has implications for strengthening of HE QA systems of Small State.

A story about being engaged in research : buzzing bees, small business and Australian unfair dismissal laws

Protection for employees from unfair dismissal (UFD) has been around in Australia under various guises for 30 years or so (Chapman, 2006). Labour standards, and particularly ILO Convention 158 (Convention Concerning Termination of Employment at the Initiative of the Employer 1982), underpin the adoption of a particular form of federal statutory UFD regime which first appeared in the 1993 reforms to the Industrial Relations Act 1998 (Commonwealth). Its existence, however, has not been uncontroversial, and the meaning, operation, scope and remedies have attracted attention over time. In fact, the first reforms to the federal UFD regime were undertaken under the Keating Labor government three months after they were enacted (Chapman, ibid.). Further reforms were made by the incoming Howard Liberal-national coalition government through the Workplace Relations Act 1996 (Commonwealth) (WRA), and arguably these reforms continued down the ‘contraction’ path (ibid.).

Journalism, media & communication network: Final report 2015

The JoMeC Network project had three key objectives. These were to: 1. Benchmark the pedagogical elements of journalism, media and communication (JoMeC) programs at Australian universities in order to develop a set of minimum academic standards, to be known as Threshold Learning Outcomes (TLOs), which would applicable to the disciplines of Journalism, Communication and/or Media Studies, and Public Relations; 2. Build a learning and teaching network of scholars across the JoMeC disciplines to support collaboration, develop leadership potential among educators, and progress shared priorities; 3. Create an online resources hub to support learning and teaching excellence and foster leadership in learning and teaching in the JoMeC disciplines. In order to benchmark the pedagogical elements of the JoMeC disciplines, the project started with a comprehensive review of the disciplinary settings of journalism, media and communication-related programs within Higher Education in Australia plus an analysis of capstone units (or subjects) offered in JoMeC-related degrees. This audit revealed a diversity of degree titles, disciplinary foci, projected career outcomes and pedagogical styles in the 36 universities that offered JoMeC-related degrees in 2012, highlighting the difficulties of classifying the JoMeC disciplines collectively or singularly. Instead of attempting to map all disciplines related to journalism, media and communication, the project team opted to create generalised TLOs for these fields, coupled with detailed TLOs for bachelor-level qualifications in three selected JoMeC disciplines: Journalism, Communication and/or Media Studies, and Public Relations. The initial review’s outcomes shaped the methodology that was used to develop the TLOs. Given the complexity of the JoMeC disciplines and the diversity of degrees across the network, the project team deployed an issue-framing process to create TLO statements. This involved several phases, including discussions with an issue-framing team (an advisory group of representatives from different disciplinary areas); research into accreditation requirements and industry-produced materials about employment expectations; evaluation of learning outcomes from universities across Australia; reviews of scholarly literature; as well as input from disciplinary leaders in a variety of forms. Draft TLOs were refined after further consultation with industry stakeholders and the academic community via email, telephone interviews, and meetings and public forums at conferences. This process was used to create a set of common TLOs for JoMeC disciplines in general and extended TLO statements for the specific disciplines of Journalism and Public Relations. A TLO statement for Communication and/or Media Studies remains in draft form. The Australian and New Zealand Communication Association (ANZCA) and Journalism Education and Research Association of Australian (JERAA) have agreed to host meetings to review, revise and further develop the TLOs. The aim is to support the JoMeC Network’s sustainability and the TLOs’ future development and use.

Competency Standards and Educational Requirements for Specialist Breast Nurses in Australia

There is substantial evidence that Specialist Breast Nurses (SBNs) make an important contribution to improved outcomes for women with breast cancer, by providing information and support and promoting continuity of care. However, a recent study has identified significant variation in how the role functions across individual nurses and settings, which is likely to contribute to varied outcomes for women with breast cancer. The project reported in this paper illustrates how a set of competency standards for SBNs were developed by the National Breast Cancer Centre. The competency standards were developed through a review of published literature and consultation with key stakeholders. The resulting SBN Competency Standards reflect the core domains and elements of SBN practice seen as integral to achieving optimal outcomes for women with breast cancer. This project identifies the SBN as a registered nurse who applies advanced knowledge of the health needs, preferences and circumstances of women with breast cancer to optimise the individual's health and well-being at various phases across the continuum of care, including diagnosis, treatment, rehabilitation, follow-up and palliative care. The five core domains of practice identified are: Supportive care; Collaborative care; Coordinated care; Information provision and education; and Clinical leadership. A variety of education programs are currently available for nurses who wish to learn about breast cancer nursing. The majority of stakeholders consulted in this project agreed that a Graduate Diploma level of education is required at minimum in order for an SBN to develop the minimum level of competence required to perform the role. The evidence supports the view that as an advanced role, nurses practising as SBNs require high-quality programs of sufficient depth and scope to achieve the required level of competence

Standards, teacher judgement and moderation in contexts of national curriculum and assessment reform

This paper puts forward a proposal for reviewing the role and purpose of standards in the context of national curriculum and assessment reform more generally. It seeks to commence the much-needed conversation about standards in the work of teachers as distinct from large-scale testing companies and the policy personnel responsible for reporting. Four key conditions that relate to the effective use of standards to measure improvement and support learning are analysed: clarity about purpose and function; understanding of the representation of standards; moderation practice; and the assessment community. The Queensland experience of the use of standards, teacher judgement and moderation is offered to identify what is educationally preferable in terms of their use and their relationships to curriculum, improvement and accountability. The article illustrates how these practices have recently been challenged by emerging political constraints related to the Australian Government’s implementation of national testing and national partnership funding arrangements tied to the performance of students at or below minimum standards.

The five myths of academic standards

This script provided the basis for a short DVD produced in 2010. The script and DVD were products of research into the introduction of 'minimum threshold' academic standards to Australian Universities. Learning and teaching academic standards are publicly defensible statements about academic standards in all disciplines, intended to establish 'baseline expectations' for undergraduate and postgraduate degrees. The script was developed using an 'anti-model' approach to character and narrative. This produced a set of deliberately skewed perspectives on the standards initiative, which are intended stimulate discussion and debate on the topic. The DVD has been shown to a range of stakeholder audiences in a variety of academic forums.