Is there a 'Public Benefit' in Improving Working Conditions for Independent Contractors? Collective Bargaining and the Trade Practices Act 1974 (Cth)

Abstract

In late 2006, the Commonwealth Parliament passed amendments to the Trade Practices Act 1974 (Cth) that were designed to make it easier for small businesses to engage in collective bargaining. The amendments were sold as providing an opportunity for groups of small businesses to counteract inequality of bargaining power in their dealings with larger businesses. Despite the hype, in reality the changes only enable collective bargaining to take place more easily in cases where public benefit can be demonstrated. This article examines the new provisions over the first two years of their operation, and focuses in particular on their utility for groups of contractor workers who want to engage in collective bargaining in order to improve their working conditions. Utilising the few case studies available from the first 2 years of the provisions’ operation, the discussion examines the difficulties contractor workers face in establishing the ‘public benefit’ of their proposed bargaining arrangements. In particular, the discussion demonstrates that the collective bargaining provisions fail to offer any substantive benefits to groups of contractor workers. Any group of workers with existing market power will be denied the opportunity to collectively bargain due to their pre-existing market position. Workers without existing market power may be allowed to engage in collective bargaining but any proposed bargaining tactics cannot be coercive in effect. This means that in practice, the provisions do not offer a meaningful opportunity for contractor workers to engage in collective bargaining to improve their working conditions.