The aim of this paper is to inform a sociological jurisprudence of the implied duty in the contract of employment of mutual trust and confidence. Present analyses of the emerging term have been doctrinal in nature. Such scholarship contributes a normative internal perspective to what can be understood as the jurisprudential project of guarding and maintaining law as a practice of regulation. This paper seeks to generate knowledge that will allow for an extension of the jurisprudential analysis to take into account how mutual trust and confidence may manifest in contemporary conditions of work. This is achieved by, first, presenting original sociological data of the employment relation in a work context likely to demonstrate practices that resonate with features of mutual trust and confidence – that of early-stage digital technology startups – and, secondly, contrasting this empirical account with doctrinal conceptions of the term. Findings unsettle the dominant jurisprudential account of mutual trust and confidence as positively contributing to the social goal of labour law as operating to counter the power of capital.

In The Redress of Law, Emilios Christodoulidis explores the philosophical foundations of market constitutionalism and shows how its embedded rationality shapes global governance. The author delves into critical phenomenology to lift the veil of ignorance on the fact that market constitutionalism has replaced political rationality with economic reasoning. By grounding its theory in the continental critical theory, ranging from Marxism to Weil’s existentialism and Luhmann’s systems theory, the book shows how the redress of law is also a practice that could radically transform the global political economy. However, the challenge is to displace the modern thinking of market constitutionalism that is rooted in functional differentiation and privileges constituted rather than constituent power. Such market thinking has allowed global governance experts to simplify and reduce to numbers complex polical, cultural and social phenomena embedded in constitutional legal regimes. The disembedding of law from society through functional differentiation, and the sole preoccupation of legal experts with constituted power, have contributed to the depoliticisation of constitutionalism as both theory and practice. A quintessential example of market constitutionalism in practice are global governance indicators. These indexes entail comparisons among legal regimes that empower private market rules as the final arbiter of local redistributive policies while bracketing historical, genealogical and reflexive connections to law’s social realities. The book offers several strategies of ‘redress of law’ such as rupture, contradiction and open dialectic, aiming to foreground political rather than market constitutionalism and to revamp the dialectic between constituted power exemplified by constitutional texts and constituent power, exemplified by strikes. This Article praises Christodoulidis’s sophisticated theoretical framework grounded in critical phenomenology, but at the same time pushes the author’s argument beyond the book itself. By questioning the practical implications of the redress of law, the focus on legal assumptions in global governance shows how legal experts in a variety of legal fields beyond constitutionalism have reproduced existing inequalities defined in terms of market, social and colonial hierarchies.

The UK enacted its first legal measure to address gender pay inequity, the Equal Pay Act 1970, more than 50 years ago. Yet, in 2021, the gender pay gap (GPG) still stood at 15.4%. Departing from the remedial and individual approach that characterises equal pay legislation, the 2017 Gender Pay Gap Information Regulations (the Regulations) require private and voluntary sector organisations with 250+ employees to annually publish pay data broken down by gender. The long-term aspiration of the Regulations is to contribute to closing the GPG within a generation. It is also hoped that they will encourage the public disclosure of pay data and changes in workplace policies to reduce organisational GPGs (immediate aims) and improve employers’ accountability (underlying aim). This paper considers whether the Regulations have what it takes to meet those immediate and underlying aims. Our assessment framework is built on the premise that for public disclosure to be useful and for employers to tackle the causes of the GPG, the information reported must be of sufficient quality, meaningful and relevant. The paper draws on both doctrinal analysis and empirical data reported by FTSE 100 Index companies to assess the Regulations and determine whether they hold the potential to meet those aims.

To address the issue of persistent unemployment, the UK Government implemented a conditional welfare scheme. Prompted by Mantouvalou's argument that the scheme forces people into exploitative work, this paper addresses the ‘pressing’ question of whether the scheme is compatible with the prohibition on ‘forced or compulsory labour’ under Article 4(2) of the European Convention on Human Rights. It is argued that, whether the scheme imposes the menace of a penalty, is involuntary, seriously exploitative or a normal civic obligation, ultimately depends on different understandings of the demands of distributive justice. Given the politically contested nature of those demands, Article 4(2) is a poor weapon to use when challenging the UK's conditional welfare scheme.

This paper draws on Marxist scholarship concerning the law's emancipatory potential to shed new light on the history of UK trade unions, and their relationship with law. It traces the historical development of UK trade union law from the nineteenth century to the present day with a view to illustrating the importance of considering not just the content, but also the form, of law, in explaining the role of law in shaping the development of the trade union movement, and in understanding the limits of law, including human rights law, when it comes to realising the emancipatory potential of trade unions in society today. It concludes with some observations about how legal and social actors might make use of their understanding of the legal form when it comes to harnessing the law as part of their political strategies.

Discrimination law primarily relies on individual enforcement for addressing discrimination at work; yet those who are most impacted by discrimination are likely the least able to enforce their rights. The question then becomes: what role should individual enforcement play in discrimination law? Can we effectively abandon individual enforcement as part of the legislative model? Drawing on a mixed method, multi-year comparative study of the enforcement of age discrimination law in the UK, Australia and Sweden, this paper considers the gaps, limits and risks of the individual enforcement model in discrimination law. Integrating doctrinal analysis; statistical analysis of claims and cases, and data from the EU and OECD; qualitative expert interviews; and a survey of legal practitioners, this paper argues that while individual enforcement is inherently limited as a tool for achieving systemic change, it must remain part of any legislative model. Reflecting on the experience in Sweden, where individual enforcement of discrimination law is significantly curtailed, the paper posits that individual rights and individual enforcement remain important complements to other regulatory tools, particularly in jurisdictions with strong enduring age norms. Abandoning or severely restricting individual enforcement is unlikely to support either the macro or micro effectiveness of age discrimination law.

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.

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 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.

Changes to the Australian regulatory landscape over the past three decades of global liberalisation created regulatory uncertainty for unions. Coupled with membership decline and internal restructuring through union amalgamations, they prompted an important reorientation by unions (back) to the workplace, and precipitated different strategic decisions and organising challenges. However, the proliferation of fragmented employment relationships rendered workplace-centred organising an insufficient response. As a result, some unions experimented with ways of supplementing existing legal frameworks by other regulatory initiatives, through campaigns that resulted in the layering of regulation. In this article, we examine attempts by three unions – covering garment workers, road transport workers and aged care workers – to address the needs of members in garment homeworking, road transport and aged care in a contested regulatory environment.

This article discusses the United Kingdom (UK) 2019 Seasonal Worker Visa, which was adopted to address labour shortages in horticulture. It explains the challenges faced by workers in agriculture more broadly, and the particular issues raised by seasonal visas. It argues that the UK scheme contains significant restrictions on workers’ rights. The article situates this scheme in a framework of ‘state-mediated structures of injustice’, namely instances where legal rules with an appearance of legitimacy create or increase vulnerability and are connected to widespread structures of exploitation. This theoretical framework focuses on the role and responsibility of the state for workers’ exploitation. The authorities have political responsibility to change these rules, and may also have legal responsibility to do so under human rights law.

In my contribution to the symposium on Michael Wilkinson’s new book, I focus in on his analysis of Hermann Heller’s thinking regarding the state. Icompare Heller’s writings with those of Hugo Sinzheimer (1875–1945), a legal scholar, practising lawyer and politician who was in a position in 1918-1920 to shape the new labour law of the Weimar Republic and who thereafter became a prominent commentator on that law. In particular, Ilook at two publications from 1933: Heller’s Autoritärer Liberalismus and Sinzheimer’s Die Krisis des Arbeitsrechts, or ‘crisis of labour law’. I then consider the trade union movement’s orientation to the state during the Weimar years, and what light this shone on Heller’s and Sinzheimer’s analysis. I conclude by identifying several questions raised by the Weimar debates for labour law, trade unions and employment relations that are of enduring importance today.

Employment relations systems generally fail to enforce all legal rights of migrant workers. This article illustrates a broader approach to the way labour migration is regulated in practice, using the example of migrant domestic workers in Hong Kong. Political economists have shown that the reality of low-wage migration is either ‘more rights, less access’ or ‘fewer rights, greater access’ in terms of rights enforcement systems. Attention to the effectiveness of such mechanisms and processes reveals another feature of regulation: the divergence of theory from practice. Much scholarly attention has been paid to rights, and this analysis, in which enforcement of those rights is sought, contributes to the literature with a frequently-occurring example of how such regulatory practices effectively restrict migrant rights. The article concludes by arguing that regulation uses employers as a further ‘mechanism of control’ to determine the actual quantity and quality of migrant workers’ employment rights regardless of what is stipulated in the law.

Political parties are likely to hold differing views about employment protection legislation (EPL). While pro-welfare parties could support EPL, pro-market parties might focus on labour market deregulation. In this paper, we investigate empirically whether partisan politics, especially the government participation of Social democrats and Christian democrats, matter for EPL in 21 established OECD countries from 1985 to 2019. We show that during the golden age of the welfare state, the level of EPL was much higher where Social and Christian democrats dominated the government than elsewhere. After the golden age and under conditions of high unemployment, these unconditional effects mostly disappeared. Instead, the level of unemployment conditions partisan differences. Christian democrats liberalize EPL for regular employment significantly less than other parties under high levels of unemployment. In contrast, Social democrats defend high levels of EPL for regular and temporary employment when unemployment is low. Against expectations, they even liberalize employment protection for labour market insiders more than other parties at very high levels of unemployment.

The online publication of employment tribunal (ET) decisions in England, Wales and Scotland marks a watershed moment, opening up new innovative avenues for legal research, and promoting transparency in labour law decision-making. Drawing on this ‘dataset’, and using age discrimination decisions as a lens to facilitate analysis, this paper reflects on the advantages and limitations of using online ET decisions as a data source to support labour law research. By considering matters of time in age discrimination decisions – both in relation to time limits for bringing a claim, and ET delays – this paper uses innovative empirical findings to map the limits of the individual enforcement model adopted by discrimination laws, and illustrates some of the barriers to successfully bringing a claim for discrimination.