Abstract
Schofield-Georgeson’s book Contract, Labour Law and the Realities of Working Life is a valuable contribution to the debate about labour laws in Australia and their protective purpose, in light of key High Court of Australia decisions in the areas of employee/contractor distinction, implied rights, adverse action, collective bargaining and the right to strike. Utilising critical contract theory Schofield-Georgeson critiques these decisions and argues they have ‘read down’ labour law in the interests of capital. Describing this as a shift from protective labour law to the rise of the contract and ‘legal formalism’, he contends that this reliance on the law of contract ignores the reality of working life and inequality and reflects ‘judicial neoliberalism’. While not everyone will agree with his view, the book’s strength is its deep analysis and critical lens of the cases reviewed and evaluation of whether labour law is serving its protective purpose. In addition, in the final chapter – What can be done? there are also proposed remedies to the issues identified, which again will no doubt spark debate.
Schofield-Georgeson commences with Construction, Forestry, Martime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1 and ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2, which held the primacy of the written contract for the employer–contractor distinction, rather than the multi-indicia test. He also discusses Workpac Pty Ltd v Rossato and Ors [2021] HCA 23 in relation to casual employment. These are significant cases because they ‘determined the primacy of commercial contract law over the employment relationship’. At the time of growth in precarious work, the effect has been to limit protection of workers and was a return to the nineteenth century, disguising ‘an inherent inequality in bargaining power’. Schofield-Georgeson’s case analysis is comprehensive, and he discusses in detail the consequence of excluding workers from the protection of labour law. He proposes an amendment to the Fair Work Act 2009 to include a multi-indicia test and the Act now includes, since 26 August 2024, section 15AA, which states that an employee or employer is to be determined by ascertaining the ‘real substance, practical reality and the true nature of the relationship’ and in doing so ‘regard must be had not only to the terms of the contract governing the relationship, but also to other factors relating to the totality of the relationship including, but not limited to, how the contract is performed in practice.’
Schofield-Georgeson then discusses implied terms in contracts, deriving from master/servant laws and critiques Commonwealth Bank of Australia v Barker [2014] HCA 32 which did not recognise the implied term of mutual trust and confidence. This chapter includes a very interesting historical analysis and discusses legal developments in other jurisdictions. Here he proposes an amendment to the Fair Work Act 2009 for fair and mutual interpretation of employment contracts because ‘requiring the judiciary to adopt a purposive or realistic interpretative approach is vital to realising the protective purpose of labour law’. While not dismissing the importance of implied terms, this chapter seems out of sync with the book’s focus on the protections provided by labour law.
Schofield-Georgeson then discusses the seminal general protections case of Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32. While the Full Federal Court upheld the employee’s appeal, with Justices Gray and Bromberg finding that the court should ascertain the ‘real’ reason for the conduct (subjective-objective test), the High Court overturned this decision and adopted a subjective ‘substantial and operative reason’ test. Schofield-Georgeson argues that this ‘nullified’ the protections of the Fair Work Act 2009. He states that unlike earlier legislation, the Fair Work Act 2009 provides more guidance on its interpretation and that the High Court ‘twisted and stretched the legislation to accommodate an approach that favours an employer’s discretion and power’, which was neo-liberal legality. He also argues that, ironically, the Court departed from the objective test applicable in contract law. While these are strong criticisms of the High Court, the book highlights the deficiency of a subjective test in cases such as Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41 and Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd [2015] FCAFC 76. Schofield-Georgeson also discusses Qantas v Transport Workers Union of Australia [2023] HCA 27 which was ‘one recent significant exception to the High Court’s application of adverse action provisions’. Flowing from the detailed case analysis, his argument for an objective test in the Fair Work Act 2009 is persuasive. It is noted that the NSW Government’s recent amendments to the victimisations provisions of the Industrial Relations Act 1996 (NSW) have included an objective test.
Schofield-Georgeson then moves onto bargaining and Electrolux Home Products Pty Ltd v Australian Workers’ Union [2004] HCA 40, which he argues narrowly interpreted the words ‘matters pertaining’ to the employment relationship in the Fair Work Act 2009. He argues that there was a reliance on the law of contract ‘to severely erode statutory collective bargaining’ which was ‘judicial interference’ in a voluntary bargain and this decision was destructive of voluntary bargaining and collective laissez-faire. He also refers to the International Labour Organisation Right to Organise and Collective Bargaining Convention No. 98 which requires that ‘collective bargains should enjoy freedom of contract’. Schofield-Georgeson proposes that the words ‘matters pertaining’ should be removed from the Fair Work Act 2009. While many would agree with this approach this appears to be an argument for contractual freedom rather than protective labour law which again seems out of sync with the theme of the book.
Finally, Schofield-Georgeson discusses protected industrial action and the impact of Esso Australia Pty Ltd v The Australian Workers’ Union [2017] HCA 54, which interpreted section 413(5) Fair Work Act 2009, one of the common requirements which is that bargaining orders are not contravened. Overturning a majority of the Federal Court, the High Court interpreted this provision broadly with the effect that all the industrial action was unprotected, not just the action subject to the orders. This meant that the Union was unable to engage in any protected industrial action for the rest of the negotiations. Schofield-Georgeson argues this decision was a departure from prior decisions and was underpinned by neo-liberal logic, with the effect of further limiting the right to strike in Australia. Further, there was a finding of coercion against the Union, relying on contract law in the context of bargaining. Schofield-Georgeson proposes a statutory right to strike with few qualifications. There has been much debate on this subject, and it is one which academics, such as Shae McCrystal, have published on extensively. In addition, on 21 May 2026 the International Court of Justice handed down its determination that the right to strike is protected by the International Labour Organisation Freedom of Association and the Protection of the Right to Organise Convention No. 87. However, the critical element is protected industrial action which was introduced federally in 1993 to protect workers from being sued when taking industrial action, although it is limited to enterprise agreement negotiations and there are numerous requirements. In this context, Schofield’s analysis of Esso makes some very relevant arguments about the impact of the court’s interpretation to further limit access to protected industrial action.
By comprehensively analysing High Court decisions in key areas of labour law, Schofield-Georgeson’s book provides insight into their impact on the protection of labour laws. I highly recommend its critical perspective.