Collective Bargaining and the Ownership of Employee Creation: An Empirical Examination of Statutory Industrial Instruments

Abstract

The concept of employee creation is a broad one, encompassing a range of explicit, tacit and personal knowledge. The relevant literature has to date focused upon legal regulation via intellectual property and individual employment law, including express and implied contractual terms and equitable obligations. This study aims to fill a gap in legal analysis by considering the role of collective labour law regulation in governing the ownership of employee creation. The authors commence this task by reviewing the contents of modern awards and enterprise agreements concluded under the Fair Work Act 2009 (Cth) in a range of ‘creative’ industries. The authors find that agreements often purport to regulate the ownership of employee creation, either by facilitating the equitable sharing of the fruits of employee creation, or by restricting employee entitlements and imposing onerous legal obligations. A number of recent tribunal decisions are also reviewed, which serve to define the parameters of collective bargaining over the ownership of employee creation and call into question the enforceability of various agreement clauses reviewed. The article considers the implications of this research and argues that, with a careful crafting of language by the parties involved, collective bargaining can be employed to facilitate the sharing of the ownership of employee creation and avoid many of the regulatory pitfalls associated with individual employment law regulation.

Keywords: collective bargaining, ownership

JEL Classification: K00, K31