In most cases, the employment relationship is capable of withstanding some friction and doubts … It may be difficult or embarrassing for an employer to be required to re-employ a person the employer believed guilty of a wrongdoing. The requirement may cause inconvenience to the employer. … The problems will be of the employer’s own making. If the employer is of even average fair-mindedness, they are likely to prove short-lived.

The legal distinction between work performed by an employee under a contract of service and work performed by an independent contractor under a contract for services is a central preoccupation in the field of labour law. This preoccupation has been traditionally focused on which workers fall within the common law definition of ‘employee’ (workers with a contract of service), which workers do not fall within the definition but should and what legal consequences follow from the inclusion of a worker within the labour law regulatory framework. Primarily the focus has been on ensuring that the labour law net encompasses those workers who are considered to be in need of the protections offered by labour law and debates over who those workers are. However, until recently, little attention has focused on the regulation of those workers who fall outside the definition of employee, where the worker's status as an independent contractor is uncontested.

Unions engaged in enterprise bargaining under the Fair Work Act 2009 (Cth) (‘FW Act’) frequently exhibit considerable creativity in the forms of industrial action they take in order to pressurise employers to make concessions in bargaining. Examples of such conduct can include sending emails with the Caps Lock function turned on, wearing union campaign clothing or insignia whilst at work, and communicating with clients and customers of the target employer about the employees’ industrial campaign.

This creativity is pushing the definition of ‘industrial action’ in s 19 of the FW Act to its outer limits. This is important due to the fact that many aspects of the bargaining regime established under the FW Act turn upon whether particular conduct falls within the statutory definition. These include provisions concerning the lawfulness or otherwise of industrial action; access to orders to stop or prevent unprotected industrial action; payment of wages for periods when employees are engaging in industrial action; and employers’ capacity to stand down employees without pay where they cannot usefully be employed because of industrial action which does not involve the employer or its employees.

This article traces the current definition back to its origins in the system of conciliation and arbitration that operated in Australia throughout most of the 20th century. That system treated all industrial action as unlawful at statute and/or common law. The definition has not been significantly changed since the replacement of that system by one based on enterprise based bargaining, accompanied by limited recognition of the capacity lawfully to take industrial action in the course of such bargaining. Reviewing the current definition and its practical operation in its social, historical, and international context, the article concludes that the definition is not ‘fit for as purpose, and proposes that it should be revised in order better to accord with the purposes of the legislation and with the bargaining regime it establishes.

Facilitating access to effective and meaningful collective bargaining is at the heart of the most recent set of reforms to the Fair Work Act 2009 (Cth) (‘FW Act’) enacted in the Fair Work Legislation Amendment (Secure Jobs, Better Pay) 2022 (Act). In the shadow of these reforms, this article explores who can engage in collective bargaining in Australia and under what conditions. While there are a range of issues impeding the effectiveness of the collective bargaining system under the FW Act, this article focuses on the question of bargaining access under both labour and competition laws and reveals some of the formidable challenges facing employed and non-employed workers alike. It examines how the rise in dependent contractors and the disaggregation of firms—through labour hire, subcontracting, franchising and/or digital platforms—has destabilised the binary conception of employment. The decline in formal employment and the growth of the ‘fissured workplace’ have not only perpetuated the problem of ‘wage theft’, they have altered the way in which wages are set in the first place. Moreover, these factors have exposed the tensions that lie between the regulation of mainstream labour markets through worker-orientated labour legislation and the regulation of product markets and business relationships under consumer-orientated competition legislation. The discussion explores the limitations created by the siloing of regulatory approaches to enabling collective bargaining for workers covered by different statutory regimes. We identify that in both labour and competition laws, meaningful access to collective bargaining in fissured work contexts has been frequently stifled by misplaced assumptions about the nature of the regulatory target and the power distribution in business networks. The article contends that a regulatory response to fissuring (or the problem of ‘the networked firm’) would straddle the labour/competition law divide in various ways, to ensure fissured workers are no longer excluded from exercising collective power by both legal domains.

This article explores the enactment of a right to strike in the Australian federal industrial relations system in order to ascertain what the legislation reveals about the commitment of successive federal governments to the principles of voluntary collective bargaining. The article reflects briefly on Australia’s international obligations to respect the right to strike under ILO and UN Conventions before outlining the main features of protected industrial action under the federal system from 1993 through to the passage of the Fair Work Act 2009 (Cth). The discussion reveals that the right to strike in Australia is very limited, particularly with respect to the content and level of agreement making that may be supported by protected industrial action. Focusing on multi-enterprise agreement making in particular, the article concludes that the current legislative regime does not permit industrial parties to determine their own industrial agendas and support those agendas through protected industrial action.

The Workplace Relations Amendment (Work Choices) Act 2005 (Cth) effects significant changes to the provisions of the Workplace Relations Act 1996 (Cth) governing industrial action in the federal workplace relations system. This paper examines these changes, situating them in the context of the historical relationship between law and industrial action in Australia, and evaluating the impact of the changes on the balance of power in voluntary collective bargaining. The paper argues that the Work Choices changes have elevated the power of employers, and protection of third party welfare, above access to the right to strike for employee participants in collective bargaining.