5

Ethical employment

practices and

the law

Breen Creighton

Introduction

Notions of what constitutes ethical behaviour must inevitably reflect the moral
values to which any given society aspires at any given point in time. Consider-
ations of time and space preclude detailed consideration of what constitutes,
or ought to constitute, ethical employment practice in Australia in the early
twenty-first century. However, for purposes of exposition, ethical behaviour in
employment will be taken to encompass four key elements: respect for the dig-
nity and personal integrity of individual employees and potential employees;
respect for, and protection of, the physical and mental integrity of employees;
access to ‘decent work’ in the sense of access to an appropriate range of
different forms of work, proper conditions of work, security of employment,
and ‘feelings of value and satisfaction’ (ILO 1999: 7; 2001); and moderating
the practical effects of the imbalance in economic power between individuals
who sell their labour in the marketplace and those who purchase it.
No legal regime could ever effectively and comprehensively enforce ethical
behaviour thus defined. However, the law can and should provide a framework
that can encourage participants in the labour market to behave in an ethical
manner. This can be done by, amongst other things, providing meaningful
incentives for those participants to observe the norms of that framework, and
a means of redress for those who have been subjected to treatment that is not
consistent with the prescribed standards of behaviour.
This chapter begins by examining the role of the law as a facilitator of ethical
behaviour in the workplace from an historical perspective. It does this by first
looking at the law of master and servant and at its subsequent transformation
into the modern law of employment. This is followed by a consideration of the
increasing role of legislative intervention from the early 1800s onwards. This
historical overview provides a basis for a brief description and analysis of the
role of the law as facilitator and guarantor of ethical behaviour in employment
in contemporary Australia, and for some thoughts as to where the law could
or should go in the future.