Collective Bargaining by Independent Contractors: Challenges from Labour Law

Abstract

Collective bargaining by small business actors, including independent contractors, is subject to the anti-competitive conduct provisions in Part IV of the Trade Practices Act 1974 (Cth) (TPA). The Australian Competition and Consumer Commission can authorise the pursuit of conduct that would otherwise breach Part IV, but the process is lengthy and difficult. This article examines suggested changes to the authorisation process that would institute 'collective bargaining notices' for small business actors. The proposed changes were embodied in a Bill introduced into Federal Parliament to amend the TPA in 2005 but which subsequently failed to be enacted. The article discusses the content of the proposed changes and explores the 'traps' lying in the common law (breach of contract, restraint of trade, economic torts) and in the TPA (secondary boycotts) that were not adequately addressed by the proposed collective bargaining notice system. The article argues that common law and TPA challenges to employee collective bargaining remain relevant for independent contractor bargaining. In order to provide meaningful access to collective bargaining for non employee actors, any changes to the TPA must address these alternate areas of potential liability.