The Your Rights at Work Campaign in the lead-up to the 2007 Australian federal election successfully mobilised a groundswell of community opposition to the radically anti-union Work Choices employment relations legislation of 2005. There were hopes that its successor, the 2009 Fair Work Act, would usher in a new regime of good-faith workplace relations, support for collective bargaining and vulnerable workers’ access to enforceable labour rights. Major gaps are the failure to address workplace power imbalance, especially in small workplaces, and lack of support for employee participation and voice mechanisms. A case is made for the inclusion of such mechanisms in legislative National Employment Standards. The article concludes by arguing that it is a mistake for unions to expect too much from legislation, rather than investing in the pursuit of the sort of community alliances which, after all, have made a restoration of Work Choices untenable.

At first glance, Part 3–1 of the Fair Work Act 2009 (Cth) seems to overlap with long-established anti-discrimination laws, offering protection against adverse, attribute-based conduct in employment. On close analysis, however, it turns out to be a new and quite different regime. Although the Fair Work Act offers a simple alternative to dated and complicated anti-discrimination laws, its provisions are at times overly-simple, raising uncertainty about how they will operate. Our analysis leads us to conclude that the approach to discrimination protection in the Fair Work Act, while an important addition to the remedies available to Australian workers, is compromised by failing to take account of lessons learned in the long history of anti-discrimination law.

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.

This article addresses the potential of the Fair Work Act’s good faith bargaining provision to enhance good faith bargaining and employment relationships, using New Zealand’s good faith provisions under the Employment Relations Act 2000 as a comparative frame of reference. It explores the limitations of the Fair Work Act’s compliance-based approach to good faith, which consists mainly of the parties presenting a legally defensible appearance of not acting in bad faith. In contrast, the New Zealand legislation aims to suffuse good faith with considerable content and definition, enabling parties to the employment relationship to extend good faith well beyond bargaining. In contrast to the Employment Relations Act, the formalistic, procedural approach promoted by the Fair Work Act is unlikely to encourage a significant cultural change towards meaningful good faith principles and practices.

This non-refereed article is adapted from the paper presented on 21 August 2009 by Ms Angela Zhang, to the symposium, The Fair Work Act: Promises, Potential, Protections and Pitfalls. This symposium was designed to bring academic analysis together with voices representing low-paid workers. The community organisation Asian Women at Work, based in western and south western Sydney, believes that legislative reform will bring greater fairness at work only if it is accompanied by a concerted multilingual campaign to educate women of their legal rights at work, and their sources of redress. Employer education, union right of workplace entry, and an effective inspection regime are also crucial. The legislated minimum conditions in the National Employment Standards are seen as being set too low to offer real protection. Even if low-paid workers could access the new collective bargaining stream, the Individual Flexibility Arrangements that are mandatory in every collective agreement are likely simply to continue employers’ power to dictate working arrangements. Whilst the Act improves the regulation of unfair dismissal, many migrant women will remain unprotected, because of small business exemptions. Nevertheless, in coming together to lobby and campaign, the women have found a source of strength and power.

In The Great Transformation, Karl Polanyi problematised the commodity status of labour. He described it as ‘fictitious’ and asserted the human aspect of labour necessitates ‘protection’. In bringing Polanyi’s mature works to bear on these claims, this article uses the ‘fictitious commodity’ concept to highlight the tension in neoclassical theory between concrete reality and its idealist construction of the economy. This contradiction directly challenges the veracity of the self-regulating market. The article develops two related themes. The first is Polanyi’s critique of the neoclassical conception of ‘the economy’ as an ideal (market) construct which gave rise to the notion that labour could be regulated by the forces of supply and demand. The second is the lack of logic in the notion of a ‘self regulating’ market and Polanyi’s appreciation of the concrete tendencies of capitalist economies to develop institutional arrangements that ensure the economy is always, and necessarily, more than ‘the market’.

The article sheds light on the proposition that labour is a commodity by considering from a fundamental theoretical perspective whether labour is subject to the same market forces which apply to commodities in general in capitalist economies. It suggests that no spontaneous competitive force exists within capitalism that would adjust labour demand to its supply, in contrast to the adaptation of supply to the demand for commodities in general. This result is argued without reference to assumptions about inflexibilities or impediments in labour or other markets, or institutional features peculiar to ‘the labour market’. Its explanation of why labour markets do not clear is at odds with a core tenet underlying orthodox economic theory of the last century, which has acted as a fundamental benchmark for most theorising about labour to the present day. Rejection of this tenet is at the heart of a heterodox explanation of unemployment, the real wage and income distribution in capitalist economies.

Japanese car makers were able dramatically to expand their share of the US car market in the seventies and eighties. This was partly the result of their own efforts and partly fortuitous. This paper examines why the US car makers of this period were vulnerable and how the Japanese were able to exploit their own technical and organisational strengths. An understanding of this key period in the history of Detroit’s ‘Big Three’ indicates why some two decades later the US companies found themselves on the brink of corporate ruin.