ABSTRACT
The focus of this book has been to interrogate the making and evolution of laws pertaining to protection of workers who lose their jobs in the United Kingdom, Australia and the United States. In all three jurisdictions, the importance of traditional labour law approaches in shaping future reform is apparent. Collective laissez-faire in the United Kingdom and conciliation and arbitration in Australia were embedded in the two systems’ labour law heritages and acted as a constraining force upon the development of a statutory right not to be unfairly dismissed for individuals. Nonetheless, whilst the United Kingdom and Australia shared a common law tradition as the overarching legal principle for the two jurisdictions, this masked their highly divergent traditions in the area of labour law. The United Kingdom’s collective laissez-faire system accorded the parties a substantial degree of industrial autonomy to determine the content of agreements. In contrast, Australia’s labour law tradition of conciliation and arbitration was significantly more juridified, although the state transferred its power to regulate industrial relations to an independent commission to determine the outcomes of disputes through a system of awards developed via conciliation and arbitration. These two methods, voluntary collective bargaining in the United Kingdom and compulsory collective conciliation and arbitration in Australia, both sought to secure industrial peace. Moreover, when the two methods were regarded as failing in this objective, the labour law traditions of the United Kingdom and Australia were subject to near terminal stress and strain, and alternative labour law models were canvassed. By way of contrast, although various scholars called for alternative labour law models in the US, there was no widespread recognition of a need for wholesale change or an unfair dismissal statute. The American labour law tradition involved both the yearly hiring rule and the employment at will rule, with the latter ultimately becoming the dominant position at common law, particularly after its enunciation in the work of Horace Woods, 1 and more recently in its acceptance as part of the restatement project. 2
is that there is less difference between the systems in practice than might be originally thought. 3 Drawing upon Estreicher and Hirsch, who say that the US has a ‘defacto cause regime’ because of the numerous statutory and common law exceptions to the at-will rule, 4 in this chapter I consider whether the contemporary regulation of laws pertaining to protection of job security in the United Kingdom, Australia and the US are really so different in practice.
