ETHICAL EMPLOYMENT PRACTICES AND THE LAW 89workers, irrespective of age or gender—except those engaged in agriculture
and in domestic service. These latter were, of course, the areas where the
‘familial’ model of master/servant law evolved, and most closely reflected
reality. British occupational health and safety legislation did not extend to
workers in agriculture until 1956, and does not extend to workers in domestic
service to the present day—see Health and Safety at Work Act 1974 (UK),
section 51.
By 1878, British factory legislation had assumed a form that is recogniz-
ably the forerunner of the regulatory regime that remains in place in the
first decade of the twenty-first century. The same is true for an enforcement
philosophy that accords chief priority to persuasion and education rather
than prosecution and punishment. Admirable as this approach may be in
principle, carried to extremes, it can severely compromise the credibility of the
entire regulatory regime (Carson 1970a, 1970b, 1979, 1980; Henriques 1979;
Johnstone 2004a: 37–41).
Starting with the Supervision of Workrooms and Factories Statute in
Victoria in 1873, all of the Australian colonies/States adopted their own ver-
sions of then-current British factory legislation in the period prior to the
First World War (Gunningham 1984: 65–71; Hagan 1964; Johnstone 2004a:
41–3). They also adopted, and by and large have maintained, the British
approach to enforcement—with all of its virtues and all of its vices (Johnstone
2000, 2003a, 2003b, 2004b; La Trobe/Melbourne Occupational Health and
Safety Project 1989; Prior 1985). The various Australian jurisdictions have
also adopted essentially the same solutions to the perceived inadequacies of
the traditional system as were advocated by the Robens Committee in Britain
in 1972 (Creighton and Stewart 2005: 589–601; Gunningham 1984: ch. 6;
Howells 1972; Johnstone 2004a: 63–76; Robens 1972; Woolf 1973). It is also
interesting to note that the industrializing countries of Western Europe all
adopted the British model of occupational health and safety regulation in the
nineteenth and early twentieth centuries (Ramm 1986).
As with the Truck Acts, the adoption of factory legislation during what is
generally supposed to have been the heyday of laissez-faire contractualism
may seem somewhat counter-intuitive. However, it is also possible to see the
emergence of this legislation, and especially the increased emphasis upon the
health and safety of workers of all ages and genders from the 1840s onwards, in
terms of protection of the integrity of the contract model. In particular, it can
be seen to have lent legislative support to the implied contractual obligation to
provide and maintain a safe and healthy workplace that is assumed to be part
of all contracts of employment—seeMathewsv.Kuwait Bechtel Corporation
[1959] 2 QB 57;Tothv.Yellow Express Carriers Ltd(1969) 90 WN (Pt 1) (NSW)
378;Tai Hing Cotton Mill Ltdv.Liu Chong Hing Bank[1986] AC 80. This
contractual duty of care is largely coterminous with the common law duty
of care, breach of which will constitute the tort of negligence. Employees are