90 SITUATING HUMAN RESOURCE MANAGEMENT
under a reciprocal duty of care towards their employer: seeListerv.Romford
Ice&ColdStorageCo[1957] AC 555. (For comment see Creighton and Stewart
2005: 604; Freedland 2003: 141–6; Macken et al. 2002: 118–27.)
The nineteenth century British factory legislation stands as the most con-
spicuous early attempt to enforce ethical behaviour in the workplace by leg-
islative prescription. It is true that many of those who supported its introduc-
tion were impelled by motives other than a desire to enforce such standards. It
is also true that from the earliest times, the state adopted a highly ambivalent
approach to the enforcement of the legislatively prescribed standards of behav-
iour. Nevertheless, the fact remains that there has been legislative recognition
for more than 200 years that the health, safety, and welfare of working people
cannot simply be left to the operation of market forces and to the arid and
capricious dictates of the law of contract and the law of tort.
SELF-HELP: COLLECTIVE BARGAINING
As noted earlier, the common law paid little heed to the power imbalance
between the parties to the wage–work bargain. That being the case, it is hardly
surprising that workers should seek to combine together, and through their
collective strength to bargain for more advantageous terms and conditions of
employment than they could realistically be expected to achieve as individuals.
At first, the law did not take kindly to this. In the late eighteenth and early
nineteenth centuries the British parliament adopted various measures, such as
the Combination Act 1799, that were intended to outlaw trade union activity.
These laws were, in due course, translated to the Australian colonies by force of
the Australian Courts Act 1828 (UK) (Portus 1958: 88; Quinlan and Gardner
1990: 80, 82). Master and servant legislation, the origins of which could be
traced to the Black Death of the twelfth century, was also deployed to try to
suppress trade union activity both in the UK and in Australia. Interestingly, it
survived as an impediment to trade union activity in this country long after its
repeal in Britain (Creighton and Stewart 2005: 35–43; Davidson 1975; Portus
1958: 90–3; Quinlan and Gardner 1990; Simon 1954).
As if legislative proscription, express or implied, was not sufficient to make
life difficult for attempts at collective organization, the law of contract was
applied in a manner which in effect denied trade unions the right to exist,
let alone to agitate for better terms and conditions for their members—for
example, inHornbyv.Close(1867) LR 2 QB 153 the Court of Queens Bench
determined that a trade union could not sue to recover funds which had been
misappropriated by an absconding official on the grounds that the rules of the
union were in unlawful restraint of trade with the consequence that it did not
have legal standing to enforce its own rules.