Mixed messages: the role of the courts in improving compliance with labor law in australia

• John Howe ^[1] ; Sean Cooney ^[1]
  1. [1] University of Melbourne

     University of Melbourne

     Australia

     
• Localización: Comparative labor law and policy journal, ISSN 1095-6654, Vol. 43, Nº. 1, 2023, págs. 105-127
• Idioma: inglés
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• Resumen

  • Over the last fifteen years or more, for various reasons, federal courts in Australia have increasingly been called upon to address non-compliance with various aspects of federal labor legislation. In this article, we focus on the issue of compliance with statutory minimum employment standards under the Fair Work Act 2009 (Cth) (FW Act).1 Non-compliance with wages and hours regulation under this Act has become a major issue of public debate since 2015, when the Australian media exposed widespread "wage theft" in the 7-Eleven convenience store franchise network.2 The courts have also played a role in relation to compliance with other areas of labor law, including unfair dismissal, anti-discrimination regulation, and freedom of association (including regulation of collective bargaining and industrial action).3 While, in considering the Australian courts' general approach to compliance, we refer to cases in these areas, our primary focus is on the minimum employment standards issue. We limit our discussion to the role of the federal court system, and exclude other relevant quasi-judicial decisionmakers, for example, the federal industrial relations tribunal, the Fair Work commission, which has jurisdiction over unfair dismissal.

    We largely accept Davidov and Eshet's general examination of possible ways to induce compliance in this Special issue. We agree with their critique of traditional economic analysis of deterrence, for example, and their advocacy of the need to consider behavioural law and economics, behavioural ethics and the expressive function of the law-promoting coordination and conveying information. Australian literature on these issues has generally come to similar conclusions as to why regulated actors do or do not comply with labour law, and what levers may be deployed to promote compliance, including the important role played by the courts. However, we note there are some additional important contributions on understanding business compliance motivations.4 We suggest greater consideration can be given to the structural and systemic issues that often drive employer noncompliance, including industry structure and dynamics, and the business models within which many employers operate.5 We also generally concur with Davidov and Eshet's observations about the legitimacy and importance of the courts in promoting compliance with labour law, and that a key potential role of the courts is raising awareness of the law, and "sending a message" about compliance with the law. However, their assumption that it is necessarily the role of the courts to give effect to laws designed to achieve social goals is more problematic. While we agree in principle with the normative basis for this contention, it runs into the headwaters of the political economy or "realpolitik" of labor law. Indeed, in the Australian context, the contested terrain of our field, and its political sensitivity, often manifests in the reluctance of courts to overtly engage in normative reasoning, or, sometimes, to even acknowledge that they do so.