Discrimination as Tort: A Missed Opportunity?
Discrimination law struggles with its identity, variously categorised as being within employment law, constitutional law, and human rights. However, discrimination laws operate largely as statutory torts, providing a civil action to compensate for ‘wrongs’. Judges regularly adopt tortious principles to interpret these statutes. Despite these close ties, there is no principles-based approach evidenced in discrimination legislation, jurisprudence or literature on the role of tort. This represents a missed opportunity to improve discrimination laws. Through historical, doctrinal and comparative analysis in Australia, Canada and the United Kingdom, this thesis asks: to what extent should tortious principles be used in discrimination law?
The Influence of Administrative Law Principles in Australian Labour Law
The extent to, and manner in which, doctrines of administrative law find expression in, and have impacted upon, Australian labour law has been the subject of little scholarly interrogation. This thesis examines the influence of concepts such as unreasonableness, proportionality and procedural fairness both under the Fair Work Act 2009 (Cth) and in the common law of employment. It considers the implications that flow from the transfer of such concepts from one field to the other in light of the basic normative concerns of each, and whether doctrines that were developed for the primary purpose of controlling state power remain coherent when applied to the ostensibly private relationship of employment.
Is it appropriate for the criminal law to be used as a part of a regulatory response to wage theft in Australia?
This thesis explores the extent to which the criminalisation of conduct should be used as part of a regulatory response to wage theft (ie the failure of employers to pay workers their minimum statutory entitlements), and in what circumstances. The terminology of wage theft is itself contested, as it suggests that the conduct inherently satisfies criminal tests, despite there being no jurisdiction in Australia which criminalises the underpayment of workers. This thesis looks at whether criminalisation should occur for deliberate or reckless conduct, underpayments more broadly, or whether criminalisation should not be adopted at all.
Theoretical and normative questions of whether current regulatory approaches and theories are amenable to securing compliance objectives in a labour law context will be considered, as well as the limitations and problems associated with a regulatory focused model, incorporating criticisms arising from criminological approaches to corporate crime. Doctrinal elements of enforcement models, including the current civil enforcement regime for underpayments, as well as enforcement and penalty regimes more broadly will be analysed to understand the purposes and the applicability of such models to the underpayment of wages.
The Work-Relatedness Connection in Labour Law
This thesis examines varying notions of work-relatedness in labour law. In exploring these causal, temporal, and other connections to employment, the focus is on the consequences for workers – including dismissal for off-duty conduct and the unavailability of workers’ compensation – which can flow from the determination of the work-relatedness question. Whether the required work-related connection is construed widely or narrowly is also significant when determining if an employer should be held vicariously liable for employee conduct, if an employment-related decision is discriminatory, or if the required employment nexus exists for the purposes of work health and safety law. This thesis explores the links between notions of work-relatedness in each of these areas. It is argued that conceptual clarity is needed in order for workers and employers to properly identify the scope of their rights, duties, and obligations. Specific issues that are considered include whether there is, or should be, a connection between an employer’s right to regulate worker conduct and their potential liability for such conduct or an associated injury. Consideration is also given to the theoretical and moral basis for distinguishing between work-related and private conduct.
Australian domestic human rights legislation and the employment relationship
This thesis asks whether the statutory bills of rights introduced in the Australian Capital Territory, Victoria, and Queensland (‘the Charters’) may significantly impact on the employment relationship. In contrast to their overseas counterparts, especially in Canada and Europe, Australian labour law scholars and practitioners have afforded domestic human rights instruments very little attention. Drawing on comparative scholarship and jurisprudence, the thesis conducts a sustained analysis of several Charter rights at work. The research aims to reveal areas where the Charters have significant and under-explored implications for employment and industrial relations and areas where it is unlikely they will make a substantial impression.
Workplace Investigations: Interactions with Regulation and Pathways for Reform
Workplace investigations are an essential management tool for employers, including to address allegations of employee misconduct and discharge statutory obligations. In addition, conducting workplace investigations has, over the last decade, become a burgeoning industry. Little is known, however, about the actual practices of workplace investigations and the interface of investigations with public regulation. This project will be the first detailed analysis of the law and policy dealing with workplace investigations in Australia. It will include empirical research on the process and outcomes of workplace investigations, which will explore the experiences of employers, employees, investigators and advisors. As well as examining the history of regulation of workplace investigations, and the current regulatory framework covering this growing field, this project will canvass what might be done in the future to improve the protections for employees, and others, who are involved in workplace investigations.