The Federation Press

Employee Protection at Common Law


Employee Protection at Common Law explains the potential development of Australian employment contract law, following the deregulatory Workplace Relations “reforms” of the Howard government.

Riley makes a case for the development of the same duties of good faith and fair dealing with workplace relations law, as have developed in contemporary Australian commercial law. Chapters include an explanation of the development in employment contract law of the duty of mutual trust and confidence, and its potential to resolve individual workplace disputes over such matters as performance-based pay and termination benefits.

This new work provides the first extensive discussion of the application of the doctrine of estoppel in the workplace context. It also includes chapters on unconscionable dealing, restrictive covenants, and the application of the Trade Practices Act 1974 (Cth) to resolve individual employment disputes.


Riley’s book has two main aims: to identify the tools available in the Australian legal system that might ensure fair dealing in work relationships, and to explore how those tools might need to be developed further to create an equitable private law of work in Australia. The book succeeds very well in meeting these aims.
...Riley’s passion for her subject and her unashamed commitment to the social and economic importance of fairness at work comes through in her writing. She writes in an easy style that makes the book accessible to those lacking an expert’s grasp of the numerous legal principles she covers, while providing plenty of thought-provoking material for the reader with a strong background in workplace law and commercial law. This book is highly recommended for academics, students and legal practitioners practising in workplace and employment law. - Law Institute of Victoria, Jan/Feb 2006

[Dr Joellen Riley] is to be congratulated in publishing in this area that is dogged with politics and ideologies. The publication is excellent and timely in seeking to ameliorate the effects of recent workplace reforms by way of common law remedies, that have developed in the contractual arena. - Alternative Law Journal, Vol 31:2 June 2006

The book is a provocative reminder that existing legal and equitable principles need to be moulded to the ‘new’ employment relationship and the author provides some useful guidance as to how those arguments might be presented.
Given the high cost of litigation on employment contracts (often an ‘access-to-justice’ issue in this area) the book might be of particular benefit to practitioners involved in disputes over questionable terminations involving questions about performance-based remuneration, schemes and entitlements to particular benefits on severance. I would recommend it to anyone regularly practising in this area of the law. - Michael Daly, Law Letter No 92 (Tasmanian Law Society) Winter 2006

Joellen Riley argues convincingly that what might ensue [from the closure of roads to the state industrial tribunals via the Work Choices Act] is the development of an equitable private law of work relationships.

Underpinning this well-researched project is the recognition that, since employment contracts are relational in substance and rarely negotiated by parties with equivalent bargaining power, classical contract theory (which assumes freedom of contract) may not sufficiently protect the mistreated employee.
As Riley demonstrates, the willingness of Australian courts to look beyond the written terms of employment contracts and to require employers in appropriate circumstances to constrain the exercise of their discretion is clear. ... Riley’s comments are highly topical.

Riley explores the frontiers of Australian employment law and finds numerous common law and equitable doctrines (such as good faith in contractual performance, unconscionable dealing and common law duress) which have scope for further development, as well as certain statutory remedies which have been underutilised (such as those under the Trade Practices Act 1974). The law of post-employment restraints is also highlighted as being of increasing relevance ... Illustrative case-law examples make this a very readable resource. - NSW Law Society Journal, Vol 44(3), April 2006

The author has successfully presented various ways in which individual employees might be able to insist on “fair dealing” by their employers, either under the common law or by unfair trading legislation provisions. The arguments presented in the chapters are accompanied by good case examples and readers of this book will feel Riley’s passion for the subject and her commitment to promoting fair dealing in workplace relationships. - Australian Law Librarian, Vol 14(4), Summer 2006

Table of Contents

Preface (with synopsis)
Table of Cases
Table of Statutes

Chapter One: Beyond Deregulation
The object of this work
Deregulation – a global phenomenon
Private regulation and fairness
The Australian Experience
Escaping the limits of “employment”
The “HRM” agenda
Who is the employer anyway?
A road map
The obstacle that must be overcome
Moving forward

Chapter Two: Contract and Work Relationships
The work of this chapter
Contract law theory – the “classical” model
The nature of employment contracts
Relational contracts and the need for good faith
Regulating for good faith and fair dealing

Chapter Three: Good Faith and Fair Dealing
The juridical nature of the good faith obligation
Early manifestations of good faith
The Malik decision
Acceptance in Australia
Mutual trust as a tool of construction
“Fair dealing”
Australian Applications
Overcoming Addis
A future for good faith and fair dealing in Australia?

Chapter Four: Estoppel and Work Relationships
Escaping contract
Dealing with disappointed expectations
What is estoppel?
The appropriate remedy in a workplace context
Rocky’s tale
Beyond Rocky
Developing estoppel in a workplace context

Chapter Five: Undoing Unfair Work Contracts
The work of this chapter
The unconscionability principle
Illegitimate exploitation
An alternative analysis – unconscionable dealing
Practical lessons
Moving forward

Chapter Six: Fairly Sharing the Fruits of Work
“Human capital” disputes
What is human capital?
Potential flaws
“Property” in information?
Future directions?

Chapter Seven: Statutory Controls on Unfair Dealing
Beyond the common law
Modern statutes and a commitment to fairness
The Trade Practices Act
A rich source of jurisprudence for common law?

Chapter Eight: Moving on
A restatement of goals
Work relationships and the good faith standard
The legal tools
A role for the judiciary
Further work


Of interest...