scholarly journals The Right to Strike and the "Deadweight" of the Common Law

2019 ◽  
Vol 50 (2) ◽  
pp. 281
Author(s):  
Shae McCrystal
Keyword(s):  
Collective Action ◽  
Negative Impact ◽  
Common Law ◽  
Industrial Relations ◽  
Judicial Interpretation ◽  
Industrial Action ◽  
The Common ◽  
The Right ◽  
Principle Of Legality

The hostility of the common law in respect of collective action by workers in the form of strikes is notorious. To provide workers with a right to strike, legislative intervention is necessary. In New Zealand and Australia, legislative enactment of the right to strike has taken the form of the "immunity approach" whereby strike action which meets the prerequisites for protection under the relevant statute receives immunity from common law action, while that which does not remains subject to potential liability at common law.This article analyses the adoption of the immunity approach in Australia under the relevant federal industrial relations statutes that have operated since 1993. Commencing with discussion of the hostility of the common law to collective action and the principle of legality, a presumption of statutory interpretation that presumes Parliament would not have abrogated common law rights without an express intention to do so, this article examines how the scope of protected industrial action in Australia has been consistently narrowed through hostile judicial interpretation. Such interpretation has been grounded in an approach which narrows the extent that common law rights are restricted by the statute and construes the statutory enactment of a right to strike as conferring a "privilege" on those industrial actors who remain "worthy" enough to access it.Considering the progressively negative impact on the right to strike of this approach, the argument in this article echoes calls made by Gordon Anderson in 1987 to reject the continued role of the common law in the regulation of industrial action. It is argued that the law of strikes in Australia should be codified. Such an approach should assist in downplaying judicial tendencies to interpret the right to strike as a privilege rather than as a necessary component of a functioning system of voluntary collective bargaining.

scholarly journals Roles of the Courts in New Zealand in Giving Effect to International Human Rights - with Some History

1999 ◽  
Vol 29 (1) ◽  
pp. 27 ◽  
Author(s):  
Kenneth J Keith
Keyword(s):  
Human Rights ◽  
International Law ◽  
Armed Conflict ◽  
Common Law ◽  
General Effect ◽  
International Affairs ◽  
The Common ◽  
The Right ◽  
Domestic Law

The Right Honourable Sir Kenneth Keith was the fourth speaker at the NZ Institute of International Affairs Seminar. In this article he describes and reflects upon the role of courts and judges in relation to the advancement of human rights, an issue covered in K J Keith (ed) Essays on Human Rights (Sweet and Maxwell, Wellington, 1968). The article is divided into two parts. The first part discusses international lawmakers attempting to protect individual groups of people from 1648 to 1948, including religious minorities and foreign traders, slaves, aboriginal natives, victims of armed conflict, and workers. The second part discusses how from 1945 to 1948, there was a shift in international law to universal protection. The author notes that while treaties are not part of domestic law, they may have a constitutional role, be relevant in determining the common law, give content to the words of a statute, help interpret legislation which is in line with a treaty, help interpret legislation which is designed to give general effect to a treaty (but which is silent on the particular matter), and help interpret and affect the operation of legislation to which the international text has no apparent direct relation. 

Rights and Interests — A Troublesome Distinction Reviewed in the Context of Labour Arbitration and Industrial Action

1980 ◽  
Vol 15 (4) ◽  
pp. 496-529
Author(s):  
Frances Raday
Keyword(s):  
Common Law ◽  
Industrial Relations ◽  
Large Area ◽  
Labour Law ◽  
Previous Issue ◽  
Industrial Action ◽  
Decision Making Processes ◽  
The Common ◽  
The Difference ◽  
Rule Making

It would seem particularly appropriate following the tribute which appeared in the previous issue of the Israel Law Review, to commence our excursion into Israeli labour law with one of Otto Kahn-Freund's thought-provoking observations.“Over a large area of British industrial relations, the rule-making and the decision-making processes, the, as it were, ‘legislative’ and ‘judicial’ functions are as indistinguishable as they were in the Constitution of medieval England. … And just as in the common law the judge is rule-maker and decision-maker all at once, so in the dynamic system of collective bargaining the parties ignore the difference between interpreting an old rule and making a new one.” Thus, in England, as Professor Kahn-Freund points out, the almost universally accepted distinction between disputes of rights and disputes of interests is not considered relevant.

Bearing the Economic Loss of Industrial Action: The Payment of Striking Employees under the Fair Work Act 2009 (Cth)

2013 ◽  
Vol 18 (2) ◽  
pp. 292
Author(s):  
Karen Wheelwright
Keyword(s):  
Common Law ◽  
Economic Loss ◽  
Court Decision ◽  
Political Climate ◽  
High Court ◽  
Legal Principles ◽  
Industrial Action ◽  
The Common ◽  
The Right

This article aims to elucidate the legal principles governing the right of striking employees in Australia to payment during periods of industrial action. It explains briefly the common law antecedents to the strike pay provisions of the Fair Work Act 2009 (Cth) and discusses in detail a number of decisions that interpret those provisions, including the recent High Court decision in CFMEU v Mammoet, which held that the prohibition on payments to employees who take protected industrial action is confined to the withholding of wages and does not permit employers to withhold other benefits, such as employer-sponsored accommodation. The article argues that, whilst the High Court decision provides a welcome clarification, there is a need for further judicial clarification of the partial work ban provisions in particular. The article discusses the assertions that the Fair Work Act provisions are overly prescriptive and the reasons for this, and suggests that they are unlikely to be relaxed in the current political climate.

scholarly journals Back to Square One: Revisiting How We Analyse the Right of Access to Environmental Information

2019 ◽  
Vol 31 (3) ◽  
pp. 465-485
Author(s):  
Sean Whittaker ◽  
Jonathan Mendel ◽  
Colin T Reid
Keyword(s):  
Environmental Protection ◽  
Environmental Governance ◽  
Negative Impact ◽  
Environmental Information ◽  
Aarhus Convention ◽  
The Common ◽  
The Uk ◽  
The Right ◽  
Right Of Access

Abstract The right of access to environmental information has become a key aspect of contemporary efforts to promote environmental governance in the UK. The right is enshrined in international law through the Aarhus Convention which, alongside other legal developments, has influenced how academics analyse the right in the UK. How research into the right has been conducted is significant because it has led to gaps in how we understand the right and undermines environmental protection efforts. This article identifies and critiques the common analytical trends used to analyse the right of access to environmental information in the UK. The article considers two of these trends, examining their negative impact and the role of the Aarhus Convention in creating these trends. The article concludes by discussing the need to critically engage with these knowledge gaps to improve how the right is guaranteed and, ultimately, the implementation of environmental protection efforts.

scholarly journals The applicability of the common law in an industrial relations context (with special reference to industrial action): a comment

1970 ◽  
Vol 12 (2) ◽  
Author(s):  
Martin Vranken
Keyword(s):  
New Zealand ◽  
Western Europe ◽  
Common Law ◽  
Industrial Relations ◽  
Civil Law ◽  
Labour Law ◽  
Labour Relations ◽  
Industrial Action ◽  
The Social ◽  
The Common

This paper reflects on the uneasy relationship that exists in New Zealand between common law and industrial law. A parallel is drawn with the move of labour law away from the general principles of the civil law in Continental Western Europe. It is argued that, especially in the context of industrial action the Labour Relations Act 1987 missed out on a unique chance to assert fully the social autonorny of New Zealand labour law.

Biotechnology and Patent Infringement in the USA

1999 ◽  
Vol 13 (3) ◽  
pp. 203-214 ◽  
Author(s):  
David L. Parker ◽  
Nicole Stafford
Keyword(s):  
Common Law ◽  
Judicial Interpretation ◽  
Biotechnology Research ◽  
Patented Invention ◽  
The Usa ◽  
Reward Process ◽  
The Common ◽  
The Right ◽  
Patented Inventions ◽  
Apparent Conflict

Patent systems attempt to stimulate innovation through a reward process that provides the right to exclude others from making, using, selling, or offering to sell the patented invention for a defined period of time. A critical dilemma is presented by the need to ensure at the same time that researchers have the opportunity to improve on what previous research has achieved. Patented inventions which have a significant – if not sole – usefulness in the pursuance of further research are at the centre of this dilemma. In this paper, the authors discuss this apparent conflict in the context of US biotechnology research and patent legislation. They briefly review the origins of the common law research exemption doctrine in the USA and discuss the research exemption of 35 USC Section 271(e)(1) and its judicial interpretation. They then consider a variety of proposals from commentators, and draw up their own recommendations for an approach which carefully balances the need to promote innovation through the granting of valid patents with the need to preserve research access to basic inventions which constitute valuable starting points for the furtherance of research or tools which improve researchers' ability to innovate.

scholarly journals Trade Union Recognition and Australia’s Neo-Liberal Voluntary Bargaining Laws

2003 ◽  
Vol 57 (2) ◽  
pp. 225-251 ◽  
Author(s):  
Ron McCallum
Keyword(s):  
United States ◽  
New Zealand ◽  
Trade Union ◽  
Trade Unions ◽  
Common Law ◽  
Industrial Relations ◽  
The United States ◽  
Recognition Mechanism ◽  
The Common ◽  
The Right

Summary When Australia deregulated its economy in the 1980s, political pressures built up leading in the 1990s to the dismantling of Australia’s industry-wide conciliation and arbitration systems. New laws established regimes of collective bargaining at the level of the employing undertaking. This article analyzes the 1993 and 1996 federal bargaining laws and argues that they fail to protect the right of trade unions to bargain on behalf of their members. This is because the laws do not contain a statutory trade union recognition mechanism. The recognition mechanisms in the Common Law countries of the United States, Canada, Britain and New Zealand are examined, and it is argued that Australia should enact trade union recognition mechanisms that are consonant with its industrial relations history and practice.

Natural Justice in the Australian Industrial Relations Commission

1993 ◽  
Vol 35 (1) ◽  
pp. 3-18
Author(s):  
Richard Naughton
Keyword(s):  
Common Law ◽  
Industrial Relations ◽  
Subject Area ◽  
Legal Form ◽  
Natural Justice ◽  
The Subject ◽  
The Common ◽  
Industrial Disputes ◽  
The Right ◽  
The Relationship

The Australian Industrial Relations Commission is under a statutorily imposed duty to act in afair manner, but with minimum resort to technical legal form. In addition, it is required to act promptly and effectively to prevent and settle industrial disputes. Some interesting questions arise concerning the relationship between this duty to act fairly and the common law principles of natural justice. This review of the subject area concludes that the two central natural justice principles (the right to a hearing and the rule against bias) are applied in a flexible manner in commission proceedings. The federal tribunal is often required to balance the strict application of these principles against a series of other factors. These might include, for example, matters like the expense, inevitable delay and procedural difficulties associated with a slavish adherence to the rules of natural justice.

Common Law Constitutionalism

2018 ◽  
Author(s):  
William E. Nelson
Keyword(s):  
Eighteenth Century ◽  
Seventeenth Century ◽  
Common Law ◽  
Legal Profession ◽  
Legal Institutions ◽  
Law System ◽  
The Common ◽  
Common Law System

This chapter shows how common law pleading, the use of common law vocabulary, and substantive common law rules lay at the foundation of every colony’s law by the middle of the eighteenth century. There is some explanation of how this common law system functioned in practice. The chapter then discusses why colonials looked upon the common law as a repository of liberty. It also discusses in detail the development of the legal profession individually in each of the thirteen colonies. Finally, the chapter ends with a discussion of the role of legislation. It shows that, although legislation had played an important role in the development of law and legal institutions in the seventeenth century, eighteenth-century Americans were suspicious of legislation, with the result that the output of pre-Revolutionary legislatures was minimal.

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