Collective Bargaining under Trade Practices Law

The Howard Government, supported by the Labor Opposition, legislated in 2007 to enable small businesses to engage in collective bargaining with large businesses under the Trade Practices Act. The object of the legislation is to facilitate greater equality in the bargaining power of the parties. Except where the small business sells goods/commodities rather than a service, a person who is ‘employed’ and the business that provides a ‘service’ are both effectively involved in the sale of labour or in the performance of work in the labour market. However, the legal concepts and procedures relating to collective bargaining in these two types of labour transactions are different. One, the ‘employment’ of persons, is placed in the category of workplace relations operating through labour law; the other, the ‘sale of services', is viewed as a commercial transaction, dealt with through commercial law. This paper considers the question of whether there are sufficiently significant differences between these labour/service transactions as to justify the application of two separate sets of laws to deal with them — one to cover transactions between employers and employees, and the other to cover transactions between small and large businesses. A case study will be used to illustrate the involved and unsatisfactory approach of the commercial law route in determining what is in essence a labour transaction rather than a commodity transaction.