Beyond Employment: The Legal Regulation of Work Relationships

Australian labour law, at least from the mid-twentieth century, was dominated by the employment paradigm: the assumption that labour law’s scope was the regulation of employment relationships –full-time and part-time, and continuing, fixed term or casual – with a single (usually corporate) entity employer. But no sooner had the employment paradigm established and consolidated its shape, it began to fall apart. Since the 1980s there has been a significant growth of patterns of work that fall outside this paradigm, driven by organisational restructuring and management techniques such as labour hire, sub-contracting and franchising. Beyond Employment analyses the way in which Australian labour law is being reframed in this shift away from the pre-eminence of the employment paradigm. Its principal concern is with the legal construction and regulation of various forms of contracting, including labour hire arrangements, complex contractual chains and modern forms like franchising, and of casual employment. It outlines the current array of work relationships in Australia, and describes and analyses the way in which those outside continuous and fixed term employment are regulated. The book seeks to answer the central question: How does law (legal rules and principles) construct these work relationships, and how does it regulate these relationships? The book identifies the way in which current law draws the lines between the various work relationships through the use of contract and property ownership, and describes, analyses and synthesises the legal rules that govern these different forms of work relationships. The legal rules that govern work relationships are explored through the traditional lens of labour law’s protective function, principally in four themes: control of property, and the distribution of risks and rewards; maintenance of income security; access to collective voice mechanisms, focusing on collective bargaining; and health, safety and welfare. The book critically evaluates the gaps in the coverage and content of these rules and principles, and the implications of these gaps for workers. It also reflects upon the power relationships that underpin the work arrangements that are the focus of the book and that are enhanced through the laws of contract and property. Finally, it frames an agenda to address the gaps and identified weaknesses insofar as they affect the economic wellbeing, democratic voice, and health and safety of workers.

Penal Colonies

Prostitution has been closely associated with the transportation of women convicts to British penal colonies. Convict labor was used to found a number of British colonies including Barbados, Jamaica, Maryland, Virginia, Singapore, New South Wales, Tasmania, and Western Australia. Between 1607 and 1939, Britain transported approximately 400,000 convicts, 162,000 of whom came to Australia and about 50,000 to North America. Significant numbers of women were among those transported to the Australian and North American colonies, although their numbers were relatively small in comparison to male convicts. Transportation was typically reserved for the most recalcitrant of female offenders. Most women transported came from working-class populations, resided in metropolitan centers, and were single at the time of their offense. Although few of these women were actually sentenced for activities associated with prostitution, large numbers had a history of involvement with prostitution. Transportation was considered to offer prostitutes a chance at redemption, with colonial commentators drawing contrasts between the Old World and its vice-ridden sensuality and the colonies, which offered opportunities for redemption through religious devotion and hard work. Many women transported to the Australian colonies were described by officials as being "on the town" at their time of apprehension and were collectively considered to be "damned whores, possessed of neither virtue nor honesty". Recently, historians have argued that these assessments were emblematic of middle-class prejudices toward the open and aggressive sexuality of working-class women. The number of convict women involved in prostitution may have been higher than recorded crimes, typically involving "larceny", suggest. A number of women were charged with theft from men who had paid them (or, in some instances, refused to pay them) for sex. Historians have estimated that one in five convict women were part-time or full-time prostitutes before transportation. Many continued in prostitution after transportation, with prostitution becoming an important element in the social and economic life of the Australian colonies, where, between 1788-1830, men outnumbered women six to one. Officially, prostitution was tolerated to dissuade men from vice. For women, prostitution presented a means of securing physical protection and accommodation at a time when general amenities and employment opportunities were restricted.

Nursing casualisation and communication : a critical ethnography

Aim The aim was to explore the relationship between nursing casualization and the culture of communication for nurses in a healthcare facility. Background Casualization, or non-standard work, is the use of temporary, contract, part-time and casual labour. An increase in casual labour has been part of a global shift in work organization aimed at creating a more flexible and cheaper workforce. It has been argued that flexibility of labour has enabled nurses to manage both non-work related needs and an increasingly complex work environment. Yet no research has explored casualization and how it impacts on the communication culture for nurses in a healthcare facility. Design Critical ethnography. Methods Methods included observation, field notes, formal interviews and focus groups. Data collection was undertaken over the 2 years 2008–2009. Results The concepts of knowing and belonging were perceived as important to nursing teamwork and yet the traditional time/task work model, designed for a full-time workforce, marginalized non-standard workers. The combination of medical dominance and traditional stereotyping of the nurse and work as full-time shaped the behaviours of nurses and situated casual workers on the periphery. The overall finding was that entrenched systemic structures and processes shaped the physical and cultural dimensions of a contemporary work environment and contributed to an ineffective communication culture. Conclusion Flexible work is an important feature of contemporary nursing. Traditional work models and nurse attitudes and practices have not progressed and are discordant with a contemporary approach to nursing labour management.

Literacy, place, and pedagogies of possibility: Working against residualization effects and deficit discourses in poor school communities

Australia has a long history of policy attention to the education of poor and working-class youth (Connell, 1994), yet currently on standardized educational outcomes measures the gaps are widening in ways that relate to social background, including race, location and class. An economic analysis of school choice in Australia reveals that a high proportion of government school students now come from lower Socio-Economic Status (SES) backgrounds (Ryan & Watson, 2004), indicating a trend towards a gradual residualisation of the poor in government schools, with increased private school enrolments as a confirmed national trend. The spatial distribution of poverty and the effects on school populations are not unique to Australia (Lupton, 2003; Lipman, 2011; Ryan, 2010). Raffo and colleagues (2010) recently provided a synthesis of socially critical approaches towards schooling and poverty arguing that what is needed are shifts in the balances of power to reposition those within the educational system as having some say in the ways schooling is organized. ‘Disadvantaged’ primary schools are not a marginal concern for education systems, but now account for a large and growing number of schools that serve an ever increasing population being made redundant, in part-time precarious work, under-employed or unemployed (Thomson 2002; Smyth, Down et al 2010). In Australia, the notion of the ‘disadvantaged’ school now refers to those, mostly public schools, being residualised by a politics of parental choice that drives neoliberalising policy logic (Bonner & Caro 2007; Hattam & Comber, forthcoming 2014; Thomson & Reid, 2003)...

Emotional anguish at work: The mediating role of perceived rejection on workgroup mistreatment and affective outcomes

In this study, the authors pay particular attention to mistreatment directed toward an organizational member from fellow workgroup members. The study contributes to the growing body of literature that examines the mistreatment of employees in the workplace. The authors propose that mistreatment by the workgroup would contribute to feelings of rejection, over and above mistreatment by the supervisor. In addition, the authors tested the mediating role of perceived rejection between workgroup mistreatment and affective outcomes such as depression and organization-based self-esteem. Part-time working participants (N = 142) took part in the study, which required them to complete a questionnaire on workplace behaviors. Results indicated that workgroup mistreatment contributed additional variance to perceived rejection over and above supervisory mistreatment when predicting depression and organization-based self-esteem. The results also indicated that perceived rejection mediates the relationship between mistreatment and affective outcomes. Results are discussed and implications for research and practice are considered.

After the gold rush: Patent law and biological inventions

In response to scientific breakthroughs in biotechnology, the development of new technologies, and the demands of a hungry capitalist marketplace, patent law has expanded to accommodate a range of biological inventions. There has been much academic and public debate as to whether gene patents have a positive impact upon research and development, health-care, and the protection of the environment. In a satire of prevailing patenting practices, the English poet and part-time casino waitress, Donna MacLean, sought a patent application - GB0000180.0 - in respect of herself. She explained that she had satisfied the usual patent criteria - in that she was novel, inventive, and useful: It has taken 30 years of hard labor for me to discover and invent myself, and now I wish to protect my invention from unauthorized exploitation, genetic or otherwise. I am new: I have led a private existence and I have not made the invention of myself public. I am not obvious (2000: 18). MacLean said she had many industrial applications. ’For example, my genes can be used in medical research to extremely profitable ends - I therefore wish to have sole control of my own genetic material' (2000: 18). She observed in an interview: ’There's a kind of unpleasant, grasping, greedy atmosphere at the moment around the mapping of the human genome ... I wanted to see if a human being could protect their own genes in law' (Meek, 2000). This special issue of Law in Context charts a new era in the long-standing debate over biological inventions. In the wake of the expansion of patentable subject matter, there has been great strain placed upon patent criteria - such as ’novelty', ’inventive step', and ’utility'. Furthermore, there has been a new focus upon legal doctrines which facilitate access to patented inventions - like the defence of experimental use, the ’Bolar' exception, patent pooling, and compulsory licensing. There has been a concerted effort to renew patent law with an infusion of ethical principles dealing with informed consent and benefit sharing. There has also been a backlash against the commercialisation of biological inventions, and a call by some activists for the abolition of patents on genetic inventions. This collection considers a wide range of biological inventions - ranging from micro-organisms, plants and flowers and transgenic animals to genes, express sequence tags, and research tools, as well as genetic diagnostic tests and pharmaceutical drugs. It is thus an important corrective to much policy work, which has been limited in its purview to merely gene patents and biomedical research. This collection compares and contrasts the various approaches of a number of jurisdictions to the legal problems in respect of biological inventions. In particular, it looks at the complexities of the 1998 European Union Directive on the Legal Protection of Biotechnological Inventions, as well as decisions of member states, such as the Netherlands, and peripheral states, like Iceland. The edition considers US jurisprudence on patent law and policy, as well as recent developments in Canada. It also focuses upon recent developments in Australia - especially in the wake of parallel policy inquiries into gene patents and access to genetic resources.

Patent law and biological inventions

In response to scientific breakthroughs in biotechnology, the development of new technologies, and the demands of a hungry capitalist marketplace, patent law has expanded to accommodate a range of biological inventions. There has been much academic and public debate as to whether gene patents have a positive impact upon research and development, health-care, and the protection of the environment. In a satire of prevailing patenting practices, the English poet and part-time casino waitress, Donna MacLean, sought a patent application - GB0000180.0 - in respect of herself. She explained that she had satisfied the usual patent criteria - in that she was novel, inventive, and useful: It has taken 30 years of hard labor for me to discover and invent myself, and now I wish to protect my invention from unauthorized exploitation, genetic or otherwise. I am new: I have led a private existence and I have not made the invention of myself public. I am not obvious (2000: 18). MacLean said she had many industrial applications. 'For example, my genes can be used in medical research to extremely profitable ends - I therefore wish to have sole control of my own genetic material' (2000: 18). She observed in an interview: 'There's a kind of unpleasant, grasping, greedy atmosphere at the moment around the mapping of the human genome ... I wanted to see if a human being could protect their own genes in law' (Meek, 2000). This special issue of Law in Context charts a new era in the long-standing debate over biological inventions. In the wake of the expansion of patentable subject matter, there has been great strain placed upon patent criteria - such as 'novelty', 'inventive step', and 'utility'. Furthermore, there has been a new focus upon legal doctrines which facilitate access to patented inventions - like the defence of experimental use, the 'Bolar' exception, patent pooling, and compulsory licensing. There has been a concerted effort to renew patent law with an infusion of ethical principles dealing with informed consent and benefit sharing. There has also been a backlash against the commercialisation of biological inventions, and a call by some activists for the abolition of patents on genetic inventions. This collection considers a wide range of biological inventions - ranging from micro-organisms, plants and flowers and transgenic animals to genes, express sequence tags, and research tools, as well as genetic diagnostic tests and pharmaceutical drugs. It is thus an important corrective to much policy work, which has been limited in its purview to merely gene patents and biomedical research. This collection compares and contrasts the various approaches of a number of jurisdictions to the legal problems in respect of biological inventions. In particular, it looks at the complexities of the 1998 European Union Directive on the Legal Protection of Biotechnological Inventions, as well as decisions of member states, such as the Netherlands, and peripheral states, like Iceland. The edition considers US jurisprudence on patent law and policy, as well as recent developments in Canada. It also focuses upon recent developments in Australia - especially in the wake of parallel policy inquiries into gene patents and access to genetic resources.

Differences in identifying healthcare associated infections using clinical vignettes and the influence of respondent characteristics: A cross-sectional survey of Australian infection prevention staff

Background Australia has commenced public reporting and benchmarking of healthcare associated infections (HAIs), despite not having a standardised national HAI surveillance program. Annual hospital Staphylococcus aureus bloodstream (SAB) infection rates are released online, with other HAIs likely to be reported in the future. Although there are known differences between hospitals in Australian HAI surveillance programs, the effect of these differences on reported HAI rates is not known. Objective To measure the agreement in HAI identification, classification, and calculation of HAI rates, and investigate the influence of differences amongst those undertaking surveillance on these outcomes. Methods A cross-sectional online survey exploring HAI surveillance practices was administered to infection prevention nurses who undertake HAI surveillance. Seven clinical vignettes describing HAI scenarios were included to measure agreement in HAI identification, classification, and calculation of HAI rates. Data on characteristics of respondents was also collected. Three of the vignettes were related to surgical site infection and four to bloodstream infection. Agreement levels for each of the vignettes were calculated. Using the Australian SAB definition, and the National Health and Safety Network definitions for other HAIs, we looked for an association between the proportion of correct answers and the respondents’ characteristics. Results Ninety-two infection prevention nurses responded to the vignettes. One vignette demonstrated 100 % agreement from responders, whilst agreement for the other vignettes varied from 53 to 75 %. Working in a hospital with more than 400 beds, working in a team, and State or Territory was associated with a correct response for two of the vignettes. Those trained in surveillance were more commonly associated with a correct response, whilst those working part-time were less likely to respond correctly. Conclusion These findings reveal the need for further HAI surveillance support for those working part-time and in smaller facilities. It also confirms the need to improve uniformity of HAI surveillance across Australian hospitals, and raises questions on the validity of the current comparing of national HAI SAB rates.

Controlling routine front line service workers: an Australian retail supermarket case

Food retail is known for its use of flexible labour and for the centralisation of functions at head office, resulting in a reduction of managerial autonomy at store level. This article employs a typology of controls developed from labour process scholarship to explore how retail managers negotiate the control of their predominantly part-time workforce. Using an Australian supermarket chain as a case, and mixed methods, the article demonstrates that supermarkets use a multiplicity of forms of control across their workforce. For front line service workers, the article identifies a new configuration of controls which intersects with employment status and acts differentially for checkout operators on different employment contracts.

Podiatry scope of practice: The role of gender in identification as a specialist

Background Ensuring efficient and effective delivery of health care to an aging population has been a major driver for a review of the health workforce in Australia. As part of this review a new National Registration and Accreditation Scheme (NRAS) has evolved with one goal being to improve workforce flexibility. With increased flexibility there have been discussions about the role specialist scopes of practice plays. This study explored the role of gender and other work related characteristics in relation to contemporary scope of podiatry practice and specialisation in Australia. Methods A cross sectional survey was administered through an on-line survey tool on behalf of the Australasian Podiatry Council. Descriptive data was collected over a three-week period. Queensland University of Technology Human Research Ethics approval was sought and confirmed exemption from review, exemption number 1400000791. Results Of the podiatrists participating in this survey (n=218), they were predominately female (66%), early career (34%, 0-9 years) and work in private practices (78%) in multi-podiatrists centres (41%). Relationship between clinical activities performed and “self-perception” of performing a “specialist role” was significant for practitioners who undertook treatment of specific patient groups. The largest area of interest was biomechanics (n=65), followed closely by diabetes (n=61), a third area identified was paediatrics (n=26). Self-perception of specialist status was compared with gender, years of experience, location, primary work environment and clinical practice. When practitioners are asked to categorise themselves to be either “generalist” or “specialist/ generalist with a special interest” podiatrist, male gender was identified as being the only factor which would predict perception of status; 64% males identified as specialist, as opposed to 49% of female survey respondents (Chi square, df = 1, P = 0.044). Self-perception of specialist status was not explained by years of experience, location, working in rural versus urban environment, state worked in, or part-time/full-time work status. Conclusions In conclusion; gender, work environment plus area of interest form a complex relationship, which appear to influence both perception and reality of service provision. Incorporation of specialisation activity (surgical podiatry along with endorsement for use of scheduled medicines) will have lasting impact on the scope of the podiatry profession in Australia. To meet community expectation and maintain high standards, the addition of new subspecialties may be indicated.

Dr. Margarethe Rosenberg with her camera.

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Dr. Margarethe Rosenberg with her camera; Mount Vernon, New York.

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TU10025 Erosion control - turf research and development facility

The aim of this project is to construct a large-scale erosion control education and demonstration facility at Redland Research Station. This will be done in collaboration with the Australian turf industry (as members of the steering committee) and consultant researcher Dr Rob Loch (project partner). The project will employ a part-time industry development officer (IDO) for Turf Australia to increase engagement with the project by the target audience. The project’s main strategy is to extend the research results from HAL funded project Optimising Turf Use to Minimise Soil Erosion on Construction Sites TU08033 so that the maximum return on investment can be derived for the turf levy payers and HAL from that study.

Dr. Margarethe Rosenberg with her camera.

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(Self?) Portraits of Dr. Margarethe Rosenberg.

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