Student Essay Competition Winner

The Executive Committee wishes to congratulate the winners of the 2013 Student Essay Competition.

The Competition has been running for some years now and continues to grow in popularity. The quality of all entries received is remarkable and deciding a winner is not an easy task.

Congratulations to Sean Mulcahy of Monash University for his winning entry in the undergraduate category: "Still Unfinished Business: Wage Compensation and Workplace Justice for Aboriginal Workers."

Congratulations to Bryden Dalitz of the University of Melbourne for his winning entry in the post-graduate category on the duty of trust & confidence in the employment relationship.

Both authors have kindly provided an extract to their essays:

 

Sean Mulcahy

In 2006, the Australian Senate delivered its landmark report, Unfinished Business: Indigenous Stolen Wages. The report concluded that there is a need for further archival and legal research into stolen wage issues across the states. Three states now have stole wage compensation and reparation schemes, but other states, including Victoria, still lag behind. Given the sheer breadth of this issue and the fact that different state industrial relations regimes operated up until the start of this century, this paper has narrowed its focus to Aboriginal labour in the state of Western Australia, a state which has (unlike Victoria) recently launched a stolen wages compensation scheme. The paper traces the history of industrial abuses of Aboriginal workers in Western Australia in respect of both employment contracts and wages, with a critical analysis of ways forward in the pursuit of wage compensation and workplace justice. It is hoped that this analysis will guide Victorian legislators in the establishment of a strong compensation and reparations scheme and trigger a critical investigation into Indigenous stolen wages within the state.


Bryden Dalitz


The employment relationship should be one of mutual trust and confidence. It does not follow, however, that the law should force employment relationships to meet this description. The whole-hearted recognition of the implied duty of mutual trust and confidence by the Full Federal Court in Commonwealth Bank of Australia v Barker [2013] FCAFC 83 has fundamentally altered the employment relationship in Australia. Furthermore, the duty is ‘mutual’ in name only and will have a far greater impact on employers unless they are fully aware of its potential impact and can draft employment contracts accordingly.

The duty can be criticised for undermining two basic employment law assumptions. First, employment law should only impose obligations on employers that are readily identifiable so that they can be taken into account when considering future conduct. This is possible when an employer’s obligations are expressed in contract or statute, but not when they are based on an open-ended duty that gives legal effect to the ‘relationship’ in the abstract. Employers will be operating under a ‘Sword of Damocles’ as conduct the employer believed to be rudimentary and of no legal significance may retrospectively be held by a court to have breached the duty. Second, employment law should aim to balance its two competing purposes of protecting employees against abuses of power by employers and increasing productivity in the workforce. In the context of the great number of protections afforded to employees by the Fair Work Act 2009 (Cth), the duty tips the balance too far towards protection at the expense of production.

It is hoped that a future High Court rejects the existence of the duty or at least implies it only on a case-by-case basis. If the latter, it should not be implied in circumstances where the employment relationship is already sufficiently regulated by statute. In the days of onerous FWA and other protections, the duty would be like the twelfth man in cricket – present, but with little role to play.