| Book Review | Labour History, 91 | The History Cooperative

Book Review

Joellen Riley, Employee Protection at Common Law, Federation Press, Sydney, 2005. pp. xxii + 258. $59.95 paper, $80.00 cloth.

In her preface, Joellen Riley says that the spur that lead her to produce Employee Protection at Common Law was the Howard government's proposed Workplace Relations (More Jobs, Better Pay) Bill 1999 (Cth) to complete the reform task begun with the Workplace Relations and Other Legislation Amendment Act 1996 (Cth) (p. xi). It was rejected in the Senate, due to the Howard government's lack of a majority. In the period 1997 to April 2005, prior to the passage of the Workplace Relations Amendment (Work Choices) Act 2005 (Cth), after the Howard government obtained a majority in the Senate following the October 2004 election, it introduced 41 bills, 14 of which were passed by the Senate.

The introduction of the 1999 Bill led Riley to wonder if developments in the common law could be utilised to provide 'fair' protections for employees. Interesting, is it not, to think that a proposed statute would lead one to contemplate how the common law could be utilised to achieve 'desired' workplace goals? Riley explores notions developed in other legal jurisdictions, especially in the commercial world between large corporations and small business and/or 'dependent' operators and argues, by analogy, that they should be applied to dealings between employers/corporations and workers. She examines such issues as 'good faith' and 'fair dealing'; estoppel (an entitlement to fulfilling an expectation resulting from expectations made by another party); unfair work contracts; workers being able to reap the benefits of their 'human capital' and barriers not being placed on their ability to obtain employment with a competitor of their previous employer; and statutory controls on unfair dealing following 1998 amendments to the Trade Practices Act 1974 (Cth).

Riley has read many cases and consulted a large number of secondary sources. Unfortunately, however, her work is fundamentally flawed. There are three major reasons for this. They are, first, her notion or understanding of the terms regulation and/or deregulation; second, the relationship between statute and common law; and third, her findings concerning the potential reach of the common law.

Remember, Riley was motivated to produce this volume in response to the legislative reforms of the Howard government. She says, 'These reforms have been described as deregulatory'. She then adds, in brackets, 'although as I describe below, "deregulation" is something of a misnomer' (p. 1). In a section entitled 'Deregulation: A global phenomenon', and after quoting scholars who have debunked changes which have occurred in different parts of the globe as deregulation, she says,

Nonetheless, for the sake of consistency with the rhetoric of the reformers I shall adopt the term 'deregulation' as convenient shorthand for the current global shifts away from collective forms of labour market regulation, and in favour of private contract and individual resolution of workplace disputes (p. 3).

Since the election of the Howard government in 1996, Australia has been awash with industrial relations legislation (see above). Legislation is nothing more or less than regulation. The absence of legislation constitutes deregulation. How can a legal scholar, or any scholar, for that matter, conclude that legislation (and it is beside the point if one likes or dislikes the legislation!) constitutes deregulation? Why would a scholar want to stand under the same lamppost as fools? A reading of the Workplace Relations (More Jobs, Better Pay) Bill 1999 (Cth) and other pieces of legislation introduced by the Howard government clearly demonstrate the various ways in which it intends to and/or has regulated collective and individual employment relationships. Riley, who, it appears is capable of analysing and critiquing the decisions of judges — persons, who despite the observations of Charles Dickens, are not unclever — is unable to decipher the doublethink of politicians. She cannot see beyond and, more to the point, is disinterested in dismantling their 'rhetoric'.

To state a tautology, if we do not see how the world is, especially at its most basic level, it is impossible to understand how it operates. Riley placed herself in this intellectual cul-de-sac to provide a basis for her research. If labour market deregulation is, in fact, occurring; that is there is an absence of statute law, there will be scope for the common law. If, on the other hand, there are statutes in existence, which regulate labour market behaviour, there will not be scope for the common law, and treatises concerning its potential effect aren't worth the paper they are written on. Question: Is there or is there not a piece of legislation entitled the Workplace Relations Act 1996 (Cth)?

If one traverses the history of the relationship between statute and common law in the Anglo legal tradition, statutes were introduced to overcome perceived problems with the decisions of common law judges. At the end of the nineteenth/early twentieth century, legislation was introduced to 'overcome' the pro-employer bias of common law judges. The Howard government has turned this approach on its head. Since its election in 1996, it has introduced legislation, the most noteworthy being the Workplace Relations Amendment (Work Choices) Act 2005 (Cth), to counter the decisions of arbitrators and common law judges perceived to be antipathetic to the interests of employers.

At one point Riley says, 'One way to ensure that working relationships enjoy the same protection as commercial relationships would be to enact special legislation specifically tailored to regulate fair dealing in workplace relationships' (p. 30). If the Workplace Relations Act 1996 (Cth) is not 'special legislation specifically tailored to regulate ... workplace relationships' what then is it? Unfortunately for Riley, she and the Howard government have different notions of 'fairness'. More fundamentally, this specialist legislation (and that which will be presumably introduced down the track as new issues emerge which antagonise employers) trumps the common law. Also, what are we to make of her observation that there are constitutional problems restricting the ability of a federal government in 'enacting national legislation on workplace standards' (p. 232)?

It is unclear if the essential proposition Riley advances concerning the use of the common law, and statute law involving commercial matters, to enhance employee protection has any real substance. For example, she said, that

So far Australian courts have been slow to develop a body of case law to demonstrate the operation of the mutual trust and confidence obligation as a tool for construing other obligations in the contract (p. 84).

She was unable to find an Australian case where an employee, who had been treated unfairly, had been able to rely on estoppel to address such treatment (p. 97). She also found that 'The body of case law on unconscionable dealing defines no bright line' (p. 163). Riley is especially critical of decisions where judges have placed restrictions on employees being able to utilise their 'human capital' and their endorsement of post-employment covenants (pp. 166–196). Her conclusions with respect to protections available to employees under the Trade Practices Act 1974 (Cth) are far from encouraging (p. 218). In addition to this, it needs to be remembered, as Riley is acutely aware, that the costs of mounting common law actions will be prohibitive for most workers. Only 'high' profile and highly paid persons/workers, involved in disputes over substantial sums, will be able to and/or have the incentive to mount common law actions.

Employee Protection at Common Law is a poorly conceived work. Its major weaknesses are Riley's inability to understand that legislation introduced by the Howard government involves regulation, and not deregulation, of employment contracts, that such legislation trumps and is designed to override unpalatable decisions of common law judges (and those of industrial tribunals), and failing to follow the logic of her findings, concerning the impact of the common principles she examined within Australia.


University of Melbourne	BRAHAM DABSCHECK

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