ETHICAL EMPLOYMENT PRACTICES AND THE LAW 99legislation provides some measure of protection against unethical contract-
ing practices where the employer discriminates on the basis of a prescribed
attribute, but by its nature this protection is of only limited scope. Similarly,
sections 52 and 53B of the Trade Practices Act 1974 provide a limited mea-
sure of protection against misleading and deceptive conduct by employers in
relation to the creation of contracts of employment, but do not extend to
the actual content of the contract if that content was not the product of the
misleading and deceptive conduct.
It also remains the case that the system of awards and agreements estab-
lished under the WR Act provides a measure of protection against abusive
employment practices—for example through the operation of awards and
through the AFPCS. However, it is clear from the earlier discussion that the
level of protection provided by this means is severely limited.
The question then arises as to whether there is a need for some mechanism
whereby the content of individual contracts can be moderated by reference
to some general criterion of fairness. To some extent, the WR Act does this
in the case of independent contractors who are natural persons—although
this provision is somewhat circumscribed in character, and little relied on in
practice. More pertinently perhaps, section 106 of the Industrial Relations
Act 1990 (NSW) gives the Industrial Relations Commission of New South
Wales a very broad power to review the ‘fairness’ of contracts, including
contracts of employment and independent contractor arrangements, whereby
work is performed. This provision has generated a great deal of litigation, and
controversy. In many respects, it has operated more as a means of shoring
up the notice and redundancy entitlements of executive employees than as
a means of restraining unethical employment practices in any broader sense
(Macken et al. 2002: ch. 13; Phillips and Tooma 2004). The sphere of operation
of section 106 has been significantly narrowed by the 2005 federal legislation
in that it no longer applies to employees of corporations. Assuming that this
federal override is valid in Constitutional terms, this means that section 106 is
now of only limited practical relevance. Nevertheless, the popularity of section
106 with litigants (and their advisers) suggests that there is a proper role for
legislative provision that affords some meaningful level of protection against
unethical employment practices—especially for those employees whose terms
and conditions are not regulated by awards or agreements under the WR Act.
Regrettably, Work Choices evinces little sympathy for this assessment.
It can be seen from the foregoing that even in the absence of a broad-based
unfair contracts jurisdiction, and despite the depredations of the 2005 legis-
lation, the law does impose a number of significant constraints on unethical
employment practices. These include the continued operation of the award
system under the WR Act. It also includes statutory provision relating to unfair
dismissal (for employees of larger companies), discrimination in employment,
and occupational health and safety. There are even signs that the common law