Collective Bargaining in Fissured Work Contexts: An Analysis of Core Challenges and Novel Experiments

Abstract

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.