‘Protected by Law’: A Typology of Labour Law Enforcement Monash Department of BLT Research Workshop 27 August 2010 John Howe.

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Presentation transcript:

‘Protected by Law’: A Typology of Labour Law Enforcement Monash Department of BLT Research Workshop 27 August 2010 John Howe

The University of Melbourne Enforcement of minimum employment standards Three key elements of any regulatory system: Standard setting Monitoring of compliance Enforcement mechanisms in cases of non-compliance (eg capacity to seek/impose penalties) Importance of employment standards enforcement - minimum entitlements are useful only if enforced All major economies have enforcement systems of variable design and effectiveness

The University of Melbourne Our comparative typology Country regulatory context (orientation of general legal system, orientation of labour law system) Enforcement systems and styles: Jurisdiction/scope Models Avenues/channels Powers/tools Strategy (compliance, deterrence, ‘responsive regulation’) Australia, Brazil, China, France and the U.S.

The University of Melbourne Enforcement models ModelFeatures Public Enforcement Model State has a monopoly on enforcement in some contexts Corporatist or ‘industrial relations’ model Institutionalised representation of organised interests Private enforcement model State abdicates enforcement; facilitate individual enforcement of rights or entitlements

The University of Melbourne Avenues/channels of enforcement AvenuesFeatures InformalNegotiation over non- compliance, industrial pressure AdministrativeInvestigation, authorised inspections, admin’ve powers and dispute resolution, right of entry JudicialProsecution or litigation in courts

The University of Melbourne Styles of Enforcement Models Avenues PublicCorporatistPrivate InformalAustralia (before 1995) Admin’veFrance, Brazil, China Sweden, Denmark JudicialAustralia (after 2006) US, UK

The University of Melbourne Enforcement in Australia Before 2006 (or perhaps the 1990s) Unions as ‘joint regulators’ Right of entry Informal (industrial action) or admin’ve enforcement Small ‘Arbitration Inspectorate’ Compliance strategy Low maximum penalties for breach of Act After 2006 (‘protected by law’…) Unions - representative role Restricted right of entry Less easy to access tribunal Fair Work Ombudsman Increased resources Insistence compliance Increased penalties (2004)

The University of Melbourne Growth in prosecution activity