ETHICAL EMPLOYMENT PRACTICES AND THE LAW 87Australian Workplace Agreement or collective agreement (other than on the
terms set out in those agreements).
It may seem somewhat counter-intuitive that the British parliament should
have been prepared to introduce legislative provision regulating the content
and/or performance of what were, ostensibly at least, freely negotiated con-
tracts between employers and workers at a time when the principle of freedom
of contract was regarded as sacrosanct. As against that, the introduction of
legislation to deal with the abuses targeted by the Truck Acts can be seen to
be not entirely inconsistent with the rhetoric of contractualism (Kahn-Freund
1949: 2):
All of these abuses have one thing in common: the discrepancy between promise and
performance. The worker is deprived of the full value of his wages, either because of the
method of performance chosen by the employer, or by the assertion of counterclaims
which were not contemplated by the worker at the time of the making of the contract.
Viewed in this way, legislative intervention constituted an attempt to preserve
the integrity of the contract model by ensuring that workers received the
wages for which they had ‘bargained’, so long as they had performed their
side of the wages–work bargain. This reasoning is attractive, but not entirely
persuasive. In particular, it does not take proper account of the fact that the
legislation proscribed certain practices—for example, the payment of wages
in the form of tokens that could be redeemed only in tommy shops—even
if those practices were expressly contemplated by the parties to the contract
of employment. This suggests that the introduction of the Truck Acts was
at least in part motivated by a desire to regulate certain forms of unethical
behaviour in the labour market, even where that behaviour was endorsed
by what was, theoretically, a freely negotiated contract between two parties
equally protected by law.
OCCUPATIONAL HEALTH AND SAFETY LEGISLATION
Starting in the late eighteenth century, the British parliament enacted a range
of measures that were intended to regulate the hours and conditions of
employment of children, young persons, and women in factories and in mines.
On one reading, this can be seen as an attempt to protect the integrity of the
contract model of employment relations by virtue of the fact that the pro-
tected classes consisted largely of persons who lacked full contractual capacity.
For example, legal infants (i.e. persons under 21 years old) had only limited
capacity to enter into contracts for the performance of work, whilst parish
apprentices (see below) were seen to be in a particularly vulnerable position
in the labour market and at the same time to be persons for whom the public
had special responsibility.
It is not necessary to examine the emergence of this legislation in detail
in the present context. (For detailed treatment, see Carson 1974, 1979, 1980;