Conference Agenda

Unlawful underpayment of employees is a persistent and urgent problem both in Australia and internationally. It harms underpaid workers, undermines compliant employers, depletes payroll revenue and threatens the integrity of labour laws. Nation states seeking to curb underpayment face an enormous challenge given limited resources of labour inspectorates and increasing complexity of labour markets. Traditional top-down state enforcement has had limited success, with government agencies struggling to increase compliance motivations and reshape institutional efficacy.

Australia’s labour inspectorate, the Office of the Fair Work Ombudsman (FWO) recently initiated an innovative approach to tackling the enforcement challenge by collaborating with business and worker representatives via a tripartite model.

Tripartism is supported by theories of regulatory best practice, such as by Elinor Ostrom, which suggest that harnessing the unique resources of influential non-state actors in public-private partnerships is superior to markets or state regulation alone. Enrolling the distinctive resources of industrial actors, and other third parties, can supplant and/or supplement state efforts to motivate and maintain compliance with laws.

However, to realise these benefits, collaborative compliance and enforcement activities must overcome a set of risks and challenges, particularly in tripartite initiatives, when the state is seeking consensus among multiple actors. These challenges include: conflicting interests, adversarial histories, low trust, power asymmetries, and regulatory capture. In this context, the state’s convening and facilitative role is key to parties achieving sufficient alignment for collective action at three levels – the enterprise, the sector, and the system as a whole.

Introducing and advancing tripartite forums is a form of ‘institutional work’ in which parties shape the institutions within which they reside. Viewed through this lens, parties have agency to shape the ‘rules of the game.’ Our research builds on the tripartism literature and offers empirical analysis of the FWO’s initiative, focusing on the extent and conditions in which tripartism can effectively foster a culture of increased compliance with labour laws.

In addressing this topic, we present data from over 45 interviews, field observation of tripartite meetings, and results from a national stakeholder mapping survey of parties directly involved in the tripartite initiative.

To protect workers' rights and promote safe and healthy working conditions, labour regulation must be appropriately enforced. This requires enforcement strategies which are both within the capacity of the regulatory agency to utilise, and which are able to achieve the desire regulatory outcome.

Theories of responsive regulation suggest that the regulatory agency should select the appropriate enforcement strategy. Braithwaite conceptualised enforcement strategies as a pyramid, with frequently used strategies (being less coercive, less interventionist, and cheaper) at the bottom with more coercive and expensive strategies higher up the pyramid. Bottom layer strategies could include information interventions such as the capacity to propagate "advice, information and persuasion".

There has, however, been little exploration as to when, why and how regulatory bodies with multiple regulatory strategies at their disposal utilise information interventions or evaluate their impact. Therefore, we know little about how information interventions are being used to move beyond the paradigm of "good idea, no impact".

This knowledge gap becomes more acute when we consider the importance of information interventions to regulatory agencies which lack a full complement of regulatory powers, such as Australia's Equality Commissions. Australia's Equality Commissions are unified by their legislatively stated goal to minimise prohibited discrimination, and the fact they can use a truncated pyramid of enforcement strategies which does not extend to coercion, punishment or sanction.

This paper will introduce current empirical research (HR ETHICS 2024-27851-49715-3 University of Melbourne) exploring the following research questions:

1. How have equality commissions in Australia used information interventions; and

2. If, and how, they have evaluated information interventions used.

The research consists of a mixed methods qualitative study, generating survey and interview data from each of Australia's Equality Commissions. This novel data about the use of information interventions by Australia's Equality Commissions will be analysed to shed light on how information interventions can be utilised in achieving effective and impactful regulation. Particular focus will be placed on the use of information interventions when limited regulatory strategies are available, or resourcing or other imperatives dictate primary use of cost-effective strategies.

The transformations of work and the weakening of trade unions call for a rethink of labour market regulation. In response to these challenges, labour inspections have experimented with different enforcement strategies through internal services restructuring, the diversification and combination of approaches to workplace monitoring, and the cooperation with partners such as trade unions.

Co-enforcement with unions and workers is a key strategy for enhancing the effectiveness of labour inspection by leveraging their expertise and direct knowledge of workplace conditions. This takes various forms, such as joint inspections involving inspectors, unions, and workers, or “inspector-delegates” elected by workers that can carry out enforcement functions. These models empower workers to participate actively in monitoring their working conditions and encourage controls through complaints filed by workers, enhancing trust and the willingness to denounce employer abuses.

The Joint Company Inspection (IPE) in Geneva is a significant example of “union-initiated co-enforcement”. The IPE is composed of an equal number of inspectors from unions and employer associations and its delegates have prerogatives similar to those of state inspectors. Why and how did this form of co-enforcement emerge in the Swiss context, known for its fragmented labour inspection system and historically limited union participation in labour market control? What are the advantages and limitations of IPE for labour market regulation?

Based on semi-structured interviews with IPE managers and key informants across the Swiss labour inspection system, as well on an analysis of grey literature, this paper explores the socio-economic and political conditions that enabled the emergence of this form of co-enforcement of labour standards. We first examine the global challenges of labour inspection and introduce co-enforcement, emphasising the role unions can play in it. It then analyses the fragmented Swiss labour inspection system, before exploring the creation of IPE and discussing its interaction with other enforcement bodies in the promotion of labour standards. By examining the dynamics between unions, employer associations, and inspection, the study contributes to academic and political discussions on the innovative forms of labour market regulation.