100 SITUATING HUMAN RESOURCE MANAGEMENT
of employment is becoming less value-neutral—notably through the emerg-
ing concept of a mutual duty of trust and confidence.
That said, it must also be recognized that some of the existing protections
do not extend to the people who might be thought to be in greatest need of
protection. For example, individuals who are technically regarded as ‘inde-
pendent contractors’, but who are in reality in a profoundly dependent rela-
tionship with their ‘principal’, are denied access to protection against unfair
dismissal. By and large, they are also denied the protection against unfair
contracting practices that is afforded to employees by the award system and
the bargaining regime established under the WR Act. To take another example,
protection against unfair dismissal under the WR Act is denied to a number of
particularly vulnerable groups, including casual and probationary employees.
Above all, as a consequence of recent legislative changes, the employees of
small and medium-sized businesses are now denied protection, even though
it seems reasonable to assume that these are the areas where there is greatest
risk of abusive treatment of employees due to the frequent lack of any effective
union presence in such workplaces, and the general lack of access to sophis-
ticated HR advice and assistance which characterizes much of the small and
medium business sector.
There are other areas where it might reasonably be supposed that the law
could provide a measure of protection against unethical employment practices
and where it does not in fact do so, or where it makes only very partial
provision. These would include the fact that the ‘National Privacy Principles’
that have been put in place under the Privacy Act 1988 (Cth) do not extend to
‘employee records’ (section 7b(3)(a),(b)). They would also include the failure
of the WR Act to make any meaningful contribution to the establishment and
maintenance of an appropriate work–life balance—despite some rather pious
aspirational statements of principle that might seem to suggest otherwise (e.g.
WR Act, section 3(l)).
Conclusions
It is clear from the foregoing that until recently the law has made at least
some contribution to the encouragement of ethical employment practices in
Australian workplaces. Perhaps its most important element of this consisted
of the safety net provided by the traditional award system, both in its own
right and as the underpinning of both collective and individual agreement-
making under the WR Act. The agreement-making procedures themselves
could also make a significant contribution to the development and imple-
mentation of ethical employment practices by helping ensure that employees
receive a greater share of the economic cake than might be the case if they
were forced to negotiate terms and conditions on an individualized basis, and