1st Edition
Contract, Labour Law and the Realities of Working Life
This book offers a critical and timely account of how labour law has become a means for protecting employers rather than workers.
The past few decades have witnessed something of a ‘silent revolution’ in the traditional protective role that labour law has played in the lives of workers. While this transformation has been overt in the realm of the market and at the level of the legislature, the role of the judiciary in this process remains significantly under-studied. Focussing on Australia, but drawing also on material from New Zealand, the UK and Canada, this book investigates how the common law has intervened to shape labour law in the image of commercial contract, determining disputes and defining legal issues by ignoring the realities of working life. Under this new conception of labour law, industrial relations between workers and employers are rarely reciprocal or relational. Rather, they are determined by the legal meaning and purpose of the contract of employment, drafted by lawyers for the benefit of employers and their human resources departments. Having demonstrated how approaches to contractual formalist legal reasoning have redefined labour law, this book goes on to propose an array of innovative legal and policy strategies to restore the protective role of labour law to the employment relationship.
Scholarly, but also accessible to students, this book will appeal to those with interests in labour law, contract law and sociolegal studies.
Acknowledgements vi
Table of Legislation vii
Table of Cases ix
1 Introduction 1
2 The Employee/Contractor Distinction and Casual Employment: Preferring the Employer’s Contract Over the Worker’s Reality 26
3 Implied Terms: Reality in Historical Perspective and the Neoliberal Approach 55
4 Adverse Action: . . . At the Employer’s Convenience 78
5 Contract and Collective Bargaining: Neither Compulsory, Nor Voluntary Bargaining – Redesigning Collective Bargaining in the Image of Employer Power 93
6 The Right to Strike in the Shadow of Contract Law 118
7 What Can Be Done? 137
Bibliography 168
Index 182
Biography
Eugene Schofield-Georgeson is Senior Lecturer in the Faculty of Law at the University of Technology Sydney, Australia.
