ETHICAL EMPLOYMENT PRACTICES AND THE LAW 101by placing procedural and substantive constraints on unethical behaviour by
employers.
Recent legislative changes have seriously compromised the nature and
extent of this contribution. The changes are based on assumptions about the
capacity of individuals adequately to represent their interests in negotiations
with employers or potential employers that simply do not bear critical exam-
ination. Not only do these changes diminish the direct contribution of the
law to the encouragement of ethical employment practices, they also limit the
capacity of employees and their representatives to encourage the adoption of
ethical employment practices by employers—for example by denying them
the right to negotiate for certified agreements dealing with unfair dismissal.
It is also important to appreciate that many of these recent changes are
inconsistent with Australia’s obligations in international law. They are, for
example, not compatible with the obligations assumed by ratification of the
key ILO Conventions dealing with Freedom of Association (Nos 87 and 98) or
the Termination of Employment Convention 1982 (No 158). This has been
the case for some years (Creighton 1997, 1998; ILO 2005: 34–8), but the
2005 amendments take the nature and extent of non-compliance to new levels
(Fenwick and Landau 2006).
For all that, legislative provisions concerning occupational health and
safety, EEO, prevention of discriminatory treatment in or in relation to
employment, and remedies for unfair dismissal can still be seen to play a posi-
tive role in promoting ethical employment practices. By the same token, there
are several areas where the law might be expected to make a positive contribu-
tion, and where it makes little or none. These include the regulation of unfair
contracting practices and helping nurture more effective work–life balances.
Even more disturbing is the fact that Australian labour law and employment
law have made little attempt to address the profound changes that have taken
place in the labour market as reflected in the explosion in casual employment
and in other forms of non-traditional work relationships. Worse, in several
critical areas, individuals who could be expected to be most vulnerable to
unethical treatment by their employers (or potential employers) are expressly
denied legislative protection that is afforded to their better-placed colleagues.
It must also be recognized that many of the protections against unethical
behaviour that are in place have developed in an ad hoc manner over a long
period of time. They do not proceed from any clearly articulated sense of what
constitutes ethical behaviour in employment, or of what the law can or should
do to encourage, and enforce, such behaviour. Given the fractious character of
the Australian polity, this is hardly surprising. But it does seem to bear out the
proposition articulated at the outset: the law cannot realistically be expected
to ensure ethical treatment of employees and potential employees. However,
it can and should help. Recent legislative developments provide little cause for
optimism that that potential will be realized in the foreseeable future.