13 March 2014


Two perspectives on work, boundaries and power.

'Labour Market Deregulation and Temporary Migrant Labour Schemes: An Analysis of the 457 Visa Program' by Iain Campbell and Joo-Cheong Tham in (2013) 25(3) Australian Journal of Labour Law examines the 457 visa program (Australia's main temporary labour migration scheme) through the concept of 'labour market deregulation'.

The authors comment
In this article, 'deregulation' is not equated with the removal of regulation; rather it is defined to mean the removal of a particular kind of regulation - protective regulation. Applying this concept to the 457 program, the article identifies three protective purposes: protection of the employment opportunities of local workers; protection of the working conditions of local workers; and protection of the working conditions of temporary migrant workers. It argues that this program was deregulated under the Coalition Government (1996-2007) while being subject to re-regulation under the current ALP Government (2007-present). The significance of this study is twofold: it provides a specific analysis of the 457 program, up to and including the most recent changes, and it suggests an analytical approach to examining the regulation of temporary migrant work. … 
The phenomenon of temporary migrant work is directly relevant to labour law scholarship. It concerns a substantial segment of the modern workforce. At the same time, this is a special segment, whose employment conditions are influenced not only by mainstream labour regulation but also by their temporary migrant status and the rules that govern that status. There is concern here that such workers encounter precarious employment conditions partly because of their migratory status. As a result, the phenomenon of temporary migrant work presses scholars to go beyond the boundaries of traditional labour law scholarship; it points to the overlap between the study of labour law and the study of migration law and it underlines the value of the argument for a re-envisioning of the scope of labour law in order to capture its role in shaping labour market regulation. Some scholars have begun to explore the connection between labour law and migration law. Yet, there is an immediate challenge in studying temporary migration schemes as labour law scholars: how should a fast-changing area with seemingly different organising principles be understood? How relevant are traditional concepts and arguments to do with labour regulation? 
This article picks up the challenge of examining the complex detail of temporary migration schemes by focussing on the major program in Australia that is explicitly designed to facilitate temporary migrant work – the 457 visa program, which now goes by the formal name of the Temporary Work (Skilled) (Subclass 457) visa program7 (from 1996 to 2012, its formal title was the Subclass 457 Business (Long Stay) visa program). The article aims to begin an analysis of this important and controversial scheme, using the tools of labour law scholarship. 
Introduced in 1996, the program has been controversial, with critics complaining about a lack of adequate protective regulation and the possibility of abuse. These complaints stem in part from the structure of the program as an employer-sponsored program. The 457 visa program could in fact be called an ‘employer-driven scheme’, as employers determine both which workers are brought in under the scheme and also the number of such workers, with no limits or quotas applying to the number of 457 visas issued. In order to successfully apply for a 457 visa, a worker needs to be nominated by an employer. These visas can last up to four years and can also be renewed (repeatedly). 457 visa workers, known as primary visa-holders, are entitled to bring members of the immediate family (secondary visa-holders). They can transfer employers provided that the new employer meets the relevant migration requirements. There is no restriction on these workers applying for permanent residence. Many features of the scheme encourage dependence on the employer, opening up room for abuse. 
This article assesses the detail of the 457 visa program through the pivotal concepts of labour market ‘deregulation’ and ‘re-regulation’, commonly used to characterise changes in labour law and labour regulation, both internationally and in Australia. These concepts can be blurred and characterised by difficulties, but they have proven useful in establishing the parameters both of the changes themselves and of the debates that accompany these changes. We argue that, carefully defined, they remain useful in labour law scholarship and can also be used fruitfully to analyse temporary migrant work schemes. In this way, this article offers two contributions to the literature of labour law in Australia: first, an analysis of one important program of temporary migration; and, second, further reflection on the value of central concepts used in current scholarship. 
The article is set out in the following manner. It begins with elaboration of the concept of ‘deregulation’ (and ‘re-regulation’), starting with labour law and then reaching out to show its relevance to temporary migration schemes. In the remainder of the article, the analytical framework is used to begin an assessment of the 457 visa program. The article suggests that the 457 visa program under the Coalition government was deregulatory: this was true when the scheme was enacted in 1996 and a basic deregulatory thrust was maintained over the course of the period to 2007, including in the course of the liberalisation of the rules in 2001. Documenting the changes made since the election of the Australian Labor Party (ALP) to federal government in 2007, the article highlights how such changes, first made in 2009 and more recently in 2013, have entailed a re-regulation of the scheme. We conclude, however, that these changes amount to only a partial re-regulation of the 457 visa program because of the continued existence of substantial executive discretion to set lower levels of protection.
'Control is a Double Edged Sword, and One Edge is Sharper' by Omri Rachum-Twaig in Journal of Law, Technology and Policy (Forthcoming) comments
 In her book Talent Wants to Be Free, Orly Lobel suggests a new, behavioral-economics, paradigm to employment intellectual property (EIP) law. Lobel describes a dynamic model to EIP control mechanisms such as non-competes, trade secrets and invention assignments, and argues that loosening them will create positive externalities to employers that will make such a shift economically justified. I first discuss the content of the book and the journey Lobel is guiding us through trying to emphasize the important notions in it and taking them a step forward towards a more "radical" suggestion. I argue that the utilitarian debate over EIP controls cannot capture all the sensibilities of the legal aspects of human capital, and that a new legal framework should not be constructed according to an aggregate of positive and negative externalities, rather than upon moral/natural-law grounds that have an economic justification as well. I argue that although Lobel's new model to EIP controls is very convincing and appealing to employers as well as to employees, there is a solid economical (as well as moral) ground for a dramatic change in the legal framework of EIP, regardless of the employers' point of view. I examine this argument with a case study of the survival of the music industry albeit the turbulences it went through at the beginning of the technological era with the emergence of file sharing and other forms of piracy, and will present an economic model that supports the moral grounds for a legal paradigm shift.