84 SITUATING HUMAN RESOURCE MANAGEMENT
wanted/needed employees. The two came together. They negotiated. They
freely entered into a contract. As noted earlier, the fact that the would-be
employee was almost invariably in a vastly inferior bargaining position vis-
à-vis the employer was no concern of the law. Nor was the law concerned with
the manner in which the parties performed the contract, or brought it to an
end: so long as they acted in accordance with the terms of their agreement.
Considerations of fairness and ethical behaviour simply did not enter the
equation.
This account of the law of master and servant and of the emergence of the
modern law of employment is, necessarily, greatly oversimplified (Creighton
and Mitchell 1995: 132):
...it is, for example, inherently unlikely that the judges who fashioned the emergent
common law of employment consciously decided to ‘infuse’ the principles of con-
tractualism with the law of master and servant. It is much more probable that they
developed and applied the law in the light of their perceptions of the principles which
ought to apply as between what were commonly referred to as ‘masters’ and ‘servants’.
Furthermore, some commentators have suggested that the fusion of the old
law of master and servant and the contract of employment was not completed
until around the middle of the twentieth century—by which time its relevance
had already been significantly eroded by social, economic, and technological
change, and by the adoption of a broad range of legislative measures that
were intended to ameliorate some of the harsher effects of the application of
common law contractual principles to the work relationship (see Deakin 1998,
2000, 2005; Howe and Mitchell 1999).
It must also be recognized that the principle of mutuality, which charac-
terized the law of master and servant, but which appears irrelevant to a truly
contractual relationship, never entirely disappeared from employment law in
either Britain or Australia. For example, the employee’s duty of obedience to
the orders of the master/employer has always been qualified by the fact that
the duty extends only to orders that arelawfulandreasonable(Rv.Darling
Island Stevedoring & Lighterage Co Ltd: Ex parte Halliday and Sullivan(1938)
60 CLR 601;Lawsv.London Chronicle (Indicator Newspapers) Ltd[1959]
1 WLR 698. For comment see Creighton, Ford, and Mitchell 1993: 181–6;
Creighton and Stewart 2005: 352–3—cf. McCarry 1984). On the other hand,
until comparatively recently, the capacity of employees to stand on their rights
in all but extreme circumstances was highly attenuated by reason of the fact
that a refusal to obey an instruction would in many instances result in termi-
nation of employment. It would be small comfort to the dismissed employee
subsequently to be found to have been entitled to refuse to obey the employer’s
instruction on the grounds that it was unlawful or unreasonable—especially
in the light of the fact that for many years the common law has set its sights
firmly against reinstatement of employees whose employment has unlawfully