ETHICAL EMPLOYMENT PRACTICES AND THE LAW 85been terminated (see Creighton, Ford, and Mitchell 1993: ch. 12; Creighton
and Stewart 2005: 442–6; Macken et al. 2002: 257–77; Pittard and Naughton
2003: 237–47).
It is also interesting to note that the notion of mutuality of obligation in the
employment relationship has recently assumed an added significance in the
guise of a mutual duty of trust and confidence, which requires the parties to
the contract of employment not to act in a manner that is inconsistent with the
mutual trust and confidence that is said to be of the essence of the employment
relationship (e.g.Blissv.South East Thames Regional Health Authority[1987]
ICR 700;Malikv.Bank of Credit and Commerce International SA[1998] AC
20;Burazinv.Blacktown City Guardian Pty Ltd(1996) 142 ALR 144, 151—cf.
Johnsonv.Unisys Ltd[2003] 1 AC 518. For comment see Brodie 1996, 2001;
Creighton and Stewart 2005: 366–8; Lindsay 2001; McCarry 1998; Naughton
1997; Riley 2003, 2005: 66–95; Spry 1997). This clearly has the potential to
provide at least some incentive for the adoption and implementation of ethical
employment practices.
Even though it is somewhat stylized, this account does help provide a
context for an understanding of the evolution of employment law, with its
characteristic lack of concern for ethical considerations. This in turn serves to
explain why, from the 1830s onwards, the legislature was increasingly prepared
to intervene to try to mandate acceptable levels of ethical behaviour in relation
to at least some aspects of the employment relationship.
Early legislative intervention
Even in the heyday of laissez-faire contractualism, the law intervened in the
privity of the employment relationship to enforce, or at least to facilitate,
ethical treatment of employees. Three areas of legislative activity merit par-
ticular consideration in this context: the enactment of ‘truck’ legislation; the
emergence of occupational health and safety legislation; and the adoption of
legislative measures to facilitate and indeed encourage collective regulation of
terms and conditions of employment.
Before moving on to look at these issues in more detail, it is interesting to
note that as early as 1862 there were attempts in Britain to legislate to mitigate
one of the harsher manifestations of contractualism, the doctrine of common
employment. These attempts were unsuccessful, and it was not until 1948 that
the doctrine was finally abolished in that country, whilst in Australia it was
abolished in all jurisdictions between 1926 (New South Wales and Victoria)
and 1956 (Northern Territory) (Johnstone 2004a: 51). Meanwhile, the emer-
gence of statutory workers’ compensation schemes in the late nineteenth and