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Industrial Relations & Labour Law:

Is there a Disciplinary Divide?

Andrew Frazer

Faculty of LawUniversity of Wollongong

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P

aradigms of Legal Scholarship

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T

he traditional paradigm

doctrinal (black letter)

Internal orientation

John Baldwin and Gwynn Davis:

"The legal scholar who operates in the common law

tradition is primarily interested not in the social policy

of the law, or the translation of that policy intoeffective practice, but rather in the coherence and

logic of legal argument applied to a given set of

facts."

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T

raditional methodology

finding the law

Enid Campbell:"Legal research entails discovery of authoritative

sources of laws in force at particular points of time,

and interpretation of those sources.

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Internal v

External approaches to law

External: Law in context

Operation and effects of legal rules

Social and political environment Law not completely autonomous

Social science data relevant to operation of

legal system

But legal scholars still focused on doctrine

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Empirical research in law

Increasing interest in operation and effects of

law

But lack of empirical research skills

Most empirical research by scholars from

other disciplines

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Labour Law in Australia

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Labour law: the traditional paradigm

Formal focus :

employment contract & arbitration system

Interaction with Industrial Relations

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Labour law works to 1985 (Bischoff et al)

category %

System: C&A 40

Terms / condns (wage fixing) 18

organisations 9

Empl relnship 9

Health & safety 8

Industrial conflict 7

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Labour law publications 1956-85

(Mitchell)

category %

IR structures / systems(arbitration)

55

Empl relationship 14

Organisations (TUs) 15

Industrial conflict 7

Health and safety 5

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Traditional paradigm: areas of interest

Limits of the arbitration system

Constitution, legislation, Cmmns discretion

Practical issues in contract of employment status, duties, dismissal

Lawyers law

Legal regulation of trade unions

Industrial action and the law

Jurisprudence of the tribunals

Development of norms

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Industrial Relations and Law

A pluralist, state decentred approach to

regulation

Concerned with rules, formal and informal But narrow view of law

As framework / environment for parties

As an input / tool As a site for contest: courts, tribunals

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Law as Regulation

Law and Labour Market Regulation

Meeting ground for labour law / IR

Broader scope - beyond empl relationship

Wider range of regulatory influences

Though still largely state-centred

Focused on formal legal processes

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An Alternative Approach to Law

Sociology of Law /

Socio-Legal Studies

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The Sociology of Law

Eugen Ehrlich

Fundamental Principles of the Sociology of Law

1913 (trans 1937)

Law is not socially autonomous

Law is effective only as social norms

the enforceable contract does not rule the world tothe extent that it is being enforced by the

authorities, but to the extent that it has become a

rule of conduct.

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Ehrlich

Law is not the exclusive product of the state

- Legal pluralism

- Organisations develop their own inner order ofthe association

Legal institutions are social institutions

- Courts decide by norms for decision

- concretised into technical legal propositions

- But these are never directly applied in practice

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Modern Sociology of Law / Socio-Legal

StudiesCotterrell:

1. Law is irreducibly socialLaw is an aspect of social relationships in general

2. Knowledge of law is empirically grounded

based on observation of the diversity and detail of

actual historical patterns (not abstract relations)

3. Study of law is systematicfrom specific to general: assess the significance of

particularities in a wider perspective

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Scope of sociology of law research

Effectiveness of law in controlling behaviour

law and social control

Influence of legal change on society

impact studies

Effectiveness of legal procedures - courts etc

legal process

Effect of social change on law responsiveness

Laws effect on social inequality

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Sociological approaches to law

(Banakar)

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A sociology of labour law

Hugo Sinzheimer

Otto Kahn-Freund

Historical and comparative analysis Descriptive account of norms regulating

actual behaviour- empirical

Critical analysis of relationship between

formal rules and social practices - gap

Theoretical synthesis - material foundations

of legal ideology

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Scope for development of law as

regulation

Social institutionalist approach

effect through social embeddedness

Pluralism

deprivileging law

focus on social norms

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Examples of sociological approach to

labour law

Australia at work project

(WRC, Sydney)

the nature of the lived reality of

employment contracts

workers knowledge & perception of the

legal instruments governing them

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Fidelity at the workplace

Implied duty under contract of employment

use of employers property

conflicts of interest business opportunities

secret profits

Employer policies Training

Workplace culture

Social norms - moral values

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