The Identity of the ‘Employer’ in Australian Labour Law: Moving Beyond the Unitary Conception of the Employer

Abstract

This article examines the concept of the ‘employer’ in Australian labour law, showing how the use of this term (and the related concept of ‘employee’) can operate to limit the rights of workers in relation to unfair dismissal, collective bargaining and employment entitlements under the Fair Work Act 2009. It also considers several areas in which rights and obligations are ascribed more broadly, under both the Fair Work Act and workplace health and safety laws. The article then explores various regulatory approaches through which attempts have been made to extend responsibility beyond the unitary conception of the employer, in the context of three specific business models: labour hire, franchising and supply chains. The new forms of regulation adopted in Australia in recent years include labour hire licensing schemes, statutory provisions imposing liability for breaches of minimum employment standards upon franchisors, and regulatory schemes to enhance accountability across sector-specific supply chains. The article concludes with a brief discussion of reforms to bargaining structures which are critical, if business reliance on the unitary concept of the employer is to be meaningfully contested in the Australian setting.