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act  bargaining  court  industrial  intervention  judicial intervention  judicial  labour  law  msd  recognition  union recognition  union 
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Preview: Industrial Law Journal - current issue

Industrial Law Journal Current Issue





Published: Tue, 05 Sep 2017 00:00:00 GMT

Last Build Date: Tue, 05 Sep 2017 05:52:54 GMT

 















Judicial Intervention and Industrial Relations: Exploring Industrial Disputes Cases in West Bengal

2017-03-01

Abstract
This paper examines a relatively neglected dimension of industrial relation in India, namely judicial intervention in industrial disputes. Through an interrogation of judicial intervention in capital-labour disputes in the state of West Bengal, the paper makes an original contribution to the literature. Through quantitative as well as qualitative examination of court cases, the paper addresses some important questions concerning the nature of judicial intervention. Does the declining force of trade union movements signify a corresponding shift to judicial recourse or an increasing pro-labour judiciary? How are the disputes read by the judiciary: do they adhere to a strict legalistic understanding or does their intervention involve going beyond the letter of the law? Is there uniformity in the nature of verdicts along the spectrum of the judiciary, ie, from the labour tribunals to the higher judiciary (High Court/Supreme Court)? Through an extensive case study of court judgments from labour tribunal to High Court to Supreme Court (where applicable), the paper situates the answers to these questions in the unique context of the sub-state of West Bengal with its specific political framework. Investigating the disjuncture between the legal prescriptions and their invisible implications, or between the jurisprudence at different levels, the paper provides clues to understanding not only the way judicial intervention plays out but also the way in which industrial relations are managed and understood in the context of West Bengal.



Establishing the Right to Bargain Collectively in Australia and the UK: Are Majority Support Determinations under Australia’s Fair Work Act a More Effective Form of Union Recognition?

2017-02-14

Abstract
The optimal legal and institutional framework for facilitating workers’ access to collective bargaining is a central issue for labour law. Since 2009, Australian labour law has adopted a novel approach to the issue of whether workers should have the right—and employers, the obligation—to engage in collective bargaining. The Fair Work Act 2009 (Cth) (FW Act) seeks to promote collective bargaining in good faith at the enterprise level, by empowering the Fair Work Commission (FWC) to facilitate good faith bargaining and the making of enterprise agreements. One of the key mechanisms available to the FWC is the power to make a majority support determination (MSD), in situations where an employer refuses to bargain and a majority of the relevant employees want to bargain collectively. The making of an MSD then triggers a number of other obligations (including the good faith bargaining requirements) and opens the way to other forms of FWC involvement in the bargaining process. An MSD has the effect of compelling an employer to bargain collectively where it has previously refused to do so. The MSD process is therefore akin to the statutory union recognition procedure operating in the UK and the long-standing union recognition processes that apply under Canadian and US labour laws. However, the Australian iteration of these legislative attempts to address the problem of employer resistance to bargaining is distinctive because it gives the FWC considerable flexibility in the method used to determine majority support for bargaining. For example, the FW Act allows for—but does not require in all cases—a ballot of employees to be conducted in order to determine the level of support for collective negotiations. Other means of establishing employee support, such as petitions, are also permitted. This potentially avoids some of the problems that have affected ballot-based union recognition systems. This article focuses on the operation of the MSD mechanism over the period 1 July 2009–30 June 2015. The article provides some background to the development of the MSD provisions in the FW Act by the former Labor Government. This is followed by an examination of the MSD provisions in the overall context of the FW Act bargaining regime, and their operation in practice, including some comparisons with the main elements of the UK statutory union recognition procedure. The article concludes with some observations about the effectiveness of MSDs in comparison with the statutory recognition procedure in the UK.



When Is a Partner/LLP Member Not a Partner/LLP Member? The Interface with Employment and Worker Status

2017-02-13

Abstract
The answer to the question of whether a partner can also simultaneously be an employee of his partnership has long been considered to be settled law. However, the introduction of limited liability partnerships (LLPs) in 2001 has not only raised the new question of whether LLP members can also be employees but has, in doing so, reopened the question of the employment status of partners, questions which now need to be viewed in the context of the widespread practice of having both equity and other types of partner/member. Furthermore, with much legislation now giving rights to ‘workers’ rather than employees, the question has arisen of whether LLP members or partners can also simultaneously be workers, regardless of whether they can also be employees. The answers to these questions go to the very heart of what the law regards as an employer–employee or firm–worker relationship, yet recent legislation and jurisprudence have failed to clarify the legal position. This article explores the employee and worker status of partners and LLP members, and the consequences both for them and for the development of the law.