the historical role of law in the regulation of …

56 A ustralian Journal of Law & Society Vol. 1 No. 1,1982

THE HISTORICAL ROLE OF LAW IN THE REGULATION OF EMPLOYMENT —

ABSTENTIONIST OR INTERVENTIONIST?

Adrian Merritt

This article attempts to establish the origins of modern employment law. It argues that employment law was a response to the spread of industrialization in the nineteenth century and was created by vigorous legislative intervention in the form of the Masters and Servants Acts. As a result, the status-based incidents of the old master-servant relationship, appropriate to domestic and agricultural service, were grafted onto the relationship of principal and independent contractor, producing, by the end of the nineteenth century, the concepts of employer and employee.

It is now clear with hindsight . . . that in the days when our system of labour law could be characterized as abstentionist, that abstentionism related as much to individual employment law as to the institutions of collective bargaining and industrial conflict . . .

. . . [W]hat have been the reasons and the sources of authority for the decisions of Parliament and of the courts to assume a regulatory role with regard to particular aspects of the individual relationship? (Davies & Freedland 1979:200).

With this assertion and this question Davies and Freedland approach their examination of the individual employment relationship in their excellent and searching book of readings on Labour Law (1979). Despite the value of such an approach to the individual employment contract as a piece in the pattern of modern labour relations, it is an approach, I suggest, founded on a serious historical misapprehension.

Much of the difficulty faced by present-day writers on employment law arises out of the tendency, evidenced in the passages quoted, to treat the structures of statutory regulation and of collective bargaining as modifying a well-established tradition-bound body of principle based on the individual employment contract. I believe we can make more progress towards understanding (and reforming) employment law if we recognise that the notion that the law covering the employment relationship is founded on concepts of freely-negotiated contracts is still in formation, rather than a tradition succumbing to gradual erosion. We tend to talk about the ‘traditional’ contract of service, (see Clark 1967:6-24) but the principles pertaining to this contract are still being established — talk of a “tradition” is premature. It is to speak with foresight rather than hindsight.

Until perhaps the last 80 years, the field of “employment” was occupied by three legal types of work relationship: first, the (true) traditional master-servant relationship — a quasi-servile relationship between a householder and her/his menials; second, a principal-independent contractor relationship between manufacturer and artisan, farmer and skilled farm worker, purchaser and tradesman; and third, an emerging relationship between an “employer”1 and a worker, taking some of the characteristics of the domestic or agricultural service relationship, and closely regulated by statute. This last is the relationship we now speak of as the “traditional” contract, but it is still very new, and this novelty means that its implications have yet to be fully elaborated.

Thus, the starting-point for Davies’ and Freedland’s examination is misplaced. There is no “elaborate corpus” (1979:200) of law founded on the employment contract as we are coming to know it today, nor is that contract passing from an initial era of untroubled abstentionism to the harassing bounds of a period marked by an interventionist approach to labour law. For this so-called “traditional” contract is the result of a process of extensive regulation throughout the nineteenth century, and the main method of that regulation was the operation of the (now almost forgotten) Masters and Servants Acts.2

The process of this development has not been fully understood to date: the various parts of the pattern were available, but not assembled. Briefly, what happened in the eighteenth and nineteenth centuries was that increasing industrialisation, accompanied by an expansion of the scale and sophistication of “service” industries and occupations, led “employers” to seek a more integrated and disciplined work-force than was provided under a system of independent contractors and labour-only sub-contractors, often hired on a seasonal basis (Clark 1967. Workers had to be converted into “hands”3 and subjected to the same sort of control as servants — by which was meant at that time domestic servants, on farm or in household, whose position was regulated by virtue of their status. Ironically, the extension to commercial and industrial workers of the discipline previously appropriate to servants was ostensibly accomplished at law by utilisation of the

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concept (then in full flower) of contract which permeated the political and economic philosophy of nineteenth-century England (Merritt 1980). So the notion of a “contract of employment” was created to allow the imposition of the old master-servant relationship on an area of work until then occupied largely by the “independent” contract.

Alan Fox’s explanation of the development of capitalist work relations in Beyond Contract: Work, Power and Trust Relations makes much the same point, though he could be criticised for over-emphasizing the conscious, instrumentalist aspect of a structurally-determined process.

But application of the contract system proper to the employment relation would have suggested implications alarming to property owners. Since no employment contract could anticipate all relevant contingencies arising in work relations, many issues had to be settled during the everyday conduct of business . . . the damaging implication of pure contract doctrine for the employer would have been that it could not allow him to be the sole judge of whether his rules were arbitrary or exceeded the scope of his authority . . . this incipient threat to so ! integral a part of everyday control as their wide discretionary powers over the | labour force would have been intolerable. It followed that contract as the pure j doctrine defined it could not be seen by the property-owning classes as an ! adequate foundation for governing the employment relation. Their needs were j met by infusing the employment contract with the traditional law of master and ! servant, thereby granting them a legal basis for the prerogative they demanded (Fox 1974:183-184). I

I would not agree totally with Fox’s underlying perspective of the legal development involved — for the employment contract is the end-product of the extension of master-servant law to wider areas of work, rather than the pre-existing victim of the encroachment of master-servant concepts. However, his recogmition of the role played by the old restrictions in creating an appropriately regulated work-force is valuable.

Contrary to the implications of some of Fox’s analysis, the employment comtract was a new concept. In order to insure the dominance, within this new legal construction, of the old regulations and controls, masters and servants legislation was recast to include “employees” as well as servants by extending it to cover many independent contractors. The result of this process of formation is the tension-ridden hybrid we are confronted with today as the contract of employment. Lawyers have advanced so small a distance towards fully understanding it thait they have not yet agreed how to define it (Merritt 1982). The source of the tension i:s that master-servant restrictions have been built into a construct supposedly conforming to notions of contracts freely negotiated and equally balanced between parties of matching economic and juridical capacity. The employment contract canmot be defined because it is internally inconsistent.

Lawyers in the employment field have come to accept the idea of an “elaborate corpus” of law stretching back from the present day to the dawn of the induistrial era because we have failed to question the now-sanctified claim that all which nnakes earlier cases seem strange and obsolete is their terminology of “master”’ and

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“servant” which, we have agreed, means the same as “employer” and “employee” today. It has probably been in the search for an acceptable definition of “employee” that this practice of assimilating old and new cases into an unchanging “corpus” of principle has taken firmest hold. Having come, through the success of the process of creating the employee out of the servant, to accept the interchangeable value of the two terms as legal categories, we have enshrined, as authorities on the nature and content of employment, early cases dealing with the vicarious liability of the master for the servant’s acts.4 In so doing, we adopted a view of the extent of a master’s right to control that was based on true master-servant law. At the time those cases were decided, the law of employment was still in its infancy, its concepts fluid and uncertain. In no way could this be more perfectly demonstrated than by examining carefully what has come to be the locus classicus of the definition of an employee — the remark of Bramwell L J in Yewens v Noakes ((1880) 6 QBD 530, 532-533): “a servant is a person subject to the command of his master as to the manner in which he shall do his work”. When the judgment is read in full, we discover that Bramwell LJ was differentiating the servant from what he regarded as a separate legal category — the employee! So even in 1883, the process of coalescence of concepts — resulting from the socio-economic pressures I am suggesting — was still incomplete.

Just as the notion of the “employee” being worked out on the floor of factories and workshops and before the benches of magistrates had not solidified into an established legal concept in the judgments of superior courts, so the clear distinction we make today between employee and independent contractor took time to emerge, for many of the categories of independent workers were still being subsumed into the class of employee, and legal decisions as late as 1858 applied to independent contractors principles then taken up as statements of the duties of employees. I have pointed out the strange adoption of Lord Justice Bramwell’s definition of a “servant” by twentieth century judges as the benchmark of the employee. Similarly the foundation of the duty of care and skill which today we recognise as one of the basic common law obligations of the employee — the principle laid down by Willes J in Harmer v Cornelius — is explained by him in terms of the warranties of good workmanship made by persons we would categorise as clearly being independent contractors: “thus, if an apothecary, a watchmaker, or an attorney be employed for reward, they each impliedly undertake to possess and exercise reasonable skill in their several arts. The public profession of an art is a representation to all the world that the professor possesses the requisite ability and skill” ((1858) 5 CB(NS) 236, 246).

The culmination of this gradual shift in concepts, then, is the present law where there are two basic categories of worker — the employee and the independent contractor. The first category includes those who would previously have been defined as servants, and persons performing types of work initially done under arrangements allowing the worker a considerable degree of independence on the level of legal rights.5 This independence has now evaporated for these people, just as many of the skills out of which that independent position was forged have been swept away by mechanisation and by a continual “segmentation” of the work-processes involved. The second category is made up of those workers whose independent position survived — plumbers, carpenters, lawyers, doctors, artists etc.


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The “elaborate corpus” of law relating to employees is in fact the end-prodict of the gradual synthesising of the servant and the lost sections of independent wcrker. This synthesis was accomplished by the recasting of regulations regarding the servant into a contractual mould. Thus these regulations were rendered suitable to the more impersonal nature of large-scale enterprise and to the more worker-oriented climate of industrial relations which followed the community’s (often) grudging acceptance of large-scale unionisation and the emergence of labour as a participant in the institutions of parliamentary government.

(a) The Role of the Masters and Servants ActsIn the process of conceptual development underlying the emergence of this new

pattern of work relationships, masters and servants legislation played a key me yet the study of the Masters and Servants Acts has been a sorry story of neglect and misunderstanding — both in their British birthplace and in the jurisdictions to which they were exported. The application of the British Acts in the 1860s was examined by Simon (1954). Before the 1970s, there were few Australian studies (Crowley 1949: Part II, Chs. 4 and 5; Crowley Vol. IV, Part V, pp.94-115; Turner 1969). Some Australian historians are beginning to investigate the operation of masters and servants legislation. This work results from the stimulus of the Bicentennial History j project (Sullivan 1979; Cashen 1980; Rayner 1980). However, in their concentration on the pre-1850 period, they appear to be still influenced by the parochial views of earlier historians in Australia who treated the Acts as a purely colonial phenomenon, designed for the particular circumstances of the Australian j settlements and restricted in operation to the convict phase of the colony’s history (Greenwood 1967: 34-35). Lawyers have ignored the Acts so completely that even the best-informed believe them to have been everywhere long since unenforceable (but contrast Davidson 1975-7), and the nature of the Acts’ provisions has been even more completely submerged.

The system, provided by the Acts, of regulation of employment by summary action for offences within the work relationship can be traced back to the socio-economic changes of the fourteenth century and to the controls attempted by the Statute of Labourers (23 Edw III c 8, 1349; 25 Edw III c 1, 1350), with its provisions that labourers should not leave the service of their masters before termination of their yearly contract of hiring. This approach to the regulation of labour was later continued by the Elizabethan Statute of Artificers (5 Eliz I c 4, 1562). The law of the infant colony of New South Wales included British Masters and Servants Acts of 1747 (20 Geo II c 19), and 1765 (6 Geo III c 25), and when the British Act of 1823 (4 Geo IV c 34) was passed, it also was received into the colony. The first colonial Masters and Servants Act was passed in 1828, (9 Geo IV No 9) without — it would seem — completely displacing the British legislation. The provisions of the British Acts and of the later colonial Acts were similar in purport and for the most part in wording.

The main matters for which this summary procedure was available were: failure to commence service, absenting from service without leave, misconduct while at work, loss of or damage to property of the “employer” in the worker’s care, failure to pay wages due and ill-treatment of the worker. Where a party alleged such a situation had occurred, the Acts allowed the case to be tried by two magistrates; and, if they

held the allegation proved, penalties of fine or imprisonment for up to three months could be imposed. In the case of offences by workers, up to 1858 in NSW and 1875 in Britain, the penalty was for the most part imprisonment, and after 1858 and 1875 workers could still be sentenced to imprisonment if their goods were insufficient to cover an unpaid fine.

The British Acts culminated in 1875 with the Employers and Workmen Act (38 & 39 Vic c 90) which removed the primary penalty of imprisonment of employees and thus placed them on the same footing — as to penalties — as employers. This seems to have been regarded by British historians as tantamount to a repeal of masters and servants legislation. Thus, Simon (1954) examined the widespread use of the Acts in the 1860s and the working-class opposition to them, but appeared to conclude — without producing evidence — that the alteration in penalties in 1875 spelt the end of the Acts’ significance as a mechanism for regulating labour. Moreover, her work ignored those provisions of the Acts which gave rights of action to workers. Following her article, subsequent references to the British Acts assume, without proof, that they were used solely as a disciplinary measure against workers.6

The Australian Masters and Servants Acts were certainly not repealed nor did they fade away once the early years of hardship and rough justice were succeeded by civilisation, paved roads and steam locomotion. In all states except two the Acts are still in force. The South Australian Act was repealed by the Industrial Conciliation and Arbitration Act 1972 and the New South Wales Act by the Industrial Arbitration (Further Amendment) Act 1980. The relevant Acts in Queensland, Tasmania, Victoria and Western Australia still remain. The continued effect of the Australian Acts through the second and third quarters of the twentieth century depended on the existence, in relation to individual employment contracts, of awards under the Commonwealth Conciliation and Arbitration Act, and on the (questionable)7 force of those awards as “laws of the Commonwealth”. For, by s 109 of the Commonwealth Constitution, state Acts which are inconsistent with Commonwealth Acts are, to the extent of the inconsistency, invalid; and awards made under the Commonwealth Conciliation and Arbitration Act 1904 are treated as having the status of “laws of the Commonwealth” for the purpose of determining issues of inconsistency.8

However, Australian historians found little evidence in traditional historical sources of the use of the Australian Acts, and concluded on that basis that they were rarely used, for the use of Court records, particularly those of magistrates’ courts, is a comparatively new practice in Australian history and reflects the influence, from the 1970s, of British social historians such as the History Workshop group, and Eric Fry, in his work on urban wage earners in the 1880s argued that “In effect, the laws remained a dead letter for urban wage earners . . . Their existence may have inhibited workers but they were not the normal machinery for regulating the relationships of employers and employees.” (1956:480-481). There is enough evidence, however, of a considerable use of the Masters and Servants Acts right through the period from 1845 to 1958 to suggest that this statement needs substantial qualification. The Acts were certainly not a dead letter. Statistics of their use are incomplete, but my computation gives an estimated total of 160,000 prosecutions in New South Wales from 1845 to 1930, (Merritt 1981: 188-191) and there were another 32,000 prosecutions from then until 1963.9 That figure may still not make them the


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normal method of regulating employment relationships, but it certainly suggests they were one of the important regulatory mechanisms used.

Moreover the same amendment to the penalties which Simon took as the end of an era of employer-initiated regulation had been made to the New South Wales legislation in 1858, (20 Vic No 28, ss 2 & 4) and it is clear from the records of cases brought under the New South Wales Acts that, in that colony at least, the alteration in penalty did not result in any sudden decrease either in the total number of cases or even in employer-initiated cases, though the proportion of employee-initiated cases did increase gradually but steadily from the 1860s almost until the disappearance of statistics of Masters and Servants Act cases in 1963.10 Despite this statistical evidence, however, the interpretation of the Australian Acts by historians has to date been very similar to the British interpretation — that the Acts were primarily used by employees to control and punish their workers.

Given the obscurity into which this body of legislation has sunk, the Masters and Servants Acts might initially appear “just history”. On closer examination, they emerge as possessing a continuing relevance for the study of employment law. They are, for example, central to the focus and questioning Davies and Freedland (rightly) suggest, (1979:200) though they point in a very different direction from that suggested by these authors. For the Masters and Servants Acts provided a method of statutory intervention into the work relationships of nascent industrial capitalism that produced the patterns of employment current today and the law attached thereto. j

Perhaps one reason that the crucial interventionist role of masters and servants legislation has been ignored is that the study of employment law has concentrated on British industries, British courts and British cases. The complexity of the British experience and the varied pace of its industrialisation may tend to obscure the underlying processes. If one turns to examine the development and operation of the legislation in the setting of a new colony, founded in the dawn of the era of industrial capitalism, the patterns of development stand out with greater clarity. The Australian colonies were established by direct and forcible transportation — not just of a population, but of a code of law and of an economic system. But that system, the mode of production and the social relations based on it were not here enmeshed in the same net of long-established local customs or ancient ties of trade. Australian markets and industries, despite the vastness of the country, developed in a much more uniform way and at a more uniform pace than in Britain, so that the processes underlying that Australian development and the relationship of the legal structure of J society to the underlying imperatives of industrial capitalism can be identified more easily. Nevertheless, in my contention, the processes and relationships in operation in Australia were the same: the differences between the two countries, while seeming considerable on the surface were in large part matters of detail which did not detract from the basic conformity of the socio-economic systems — both were capitalist economies, undergoing an intensification of industrialisation, under the regulation of a legal code creating and enforcing similar work relationships. In addition to that, Australian industry and commerce was integrated into the British economy b\y the control, more or less direct, of many Australian firms by British companies arud by the destination of most Australian products for British markets (eg Butlin 1976). j


Given these similarities and close connections, the study of the effect of masters and servants legislation in Australia can provide a very valuable case-study of the overall development of employment law.

When the first Australian Masters and Servants Act (9 Geo IV No 9) was passed on 1828, the workforce of the colony was predominantly rural-based. Furthermore, it was concentrated not in agricultural pursuits, where many special skills had long been recognised in the “mother country”, but in pastoral occupations which, for a variety of reasons, had not been developed on any large scale in England, at least for some centuries before the colonisation of New South Wales (except perhaps in the Scottish highlands after the “clearances”). These pastoral occupations had, in pre-1788 England, therefore involved only very small numbers of skilled workers. Even the largest British sheep-farms would have needed but a handful of shepherds and shearers, and fencing — in a country where farm boundaries had been drawn hundreds of years before — would not have been a major enterprise. In Australia, however, the nineteenth century saw sheep-farming developed as a large scale industry almost rivalling the cotton mills and iron foundries of nineteenth century England. Sheep “stations” were vast tracts of territory, some of them bigger than many European countries, and most of them more extensive than any English county. Pastoralists employed scores of shepherds, and each shepherd handled flocks of 2000 — 3000 sheep. Whole gangs of shearers traversed the country contracting with pastoralists to get the clip off the sheep’s back. When the move to fencing started the displacement of shepherds, thousands of square miles were divided up. Even with the steel pickets and high-tensile wire available today, good fences require skill for construction. In those days of “post-and-rail” fencing, the work involved the exercise of an even more considerable skill. The experience which colonial employers inherited from their own or their parents’ past did not encompass the involvement of these occupations in pastoral pursuits on so large a scale. In England a shepherd had been, without doubt, a skilled man; but how could one come to terms with the idea of a major industry where almost all the labour involved was highly skilled? Shearing also was a highly skilled occupation. Applying the concepts of English law of the first half of the nineteenth century, shearers and fencers would have been independent contractors. Yet, in the Australian situation, they came to be treated as servants.

Part of the search for the full ramifications of the emergence of the “employee” from the “servant” involves a demonstration of how the exigencies of industrial relations in colonial Australia dictated a devastating, if as yet imperfectly understood, process of de-skilling — whereby skilled workers (and therefore, by mid-nineteenth century English terms, probably independent contractors) were turned into employees — a group whose rights were established by a gradual and subtle broadening of the category of domestic servants or menials. This metamorphosis was achieved largely through the regulatory mechanisms of the Masters and Servants Acts and through the philosophy entrenched in the Acts’ interstices. The records of Masters and Servants Act cases in New South Wales bear witness to the process by their demonstration of an articulate and consistent opposition to the erosion of expected contractual rights on the part of the workers involved in the litigation. When one looks at the history of craft unionism, this opposition dovetails neatly with the opposition of craftsmen to the destruction of

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trade “mysteries”. I would suggest it dovetails because it represents two secticns of the same broad group of workers opposing the same process — the process cf the creation of the “employee”. This movement among nineteenth century Austialian workers has been submerged till now by the obscurity of the sources in which their vigorous but ephemeral protests were recorded (the reports of hearings apptar in manuscript Bench Books of Courts of Petty Sessions held in the NSW State Archives), and by the victory of the “propaganda” campaign which attempted to justify their submergence — a continuous and self-perpetuating literary tradition (eg The Bulletin at the turn of the century: Ward’s Australian Legend in 1958) vhich, while applauding the personal qualities of the “bushman” discounted the real skills of large numbers of “bush” occupations, (eg Ward 1958:74-75).

In the pages that follow, I have attempted, by detailed examination of the New South Wales statutes and of the cases brought thereunder, to demonstrate hov the legislation achieved the result I have claimed for it — the creation of a boiy of workers suited, by their confinement into the new legal category of “employee”, for the task of supplying a disciplined labour force to the masters of industrial capital. In so doing, I am endeavouring to draw out of New South Wales masters and servants legislation the value I have suggested it holds as a case study ii the development of Anglo-Australian employment law.

(b) The Ambit of the ActsThe key role played by masters and servants legislation in peopling the factories

with employees, subject to a contract which owes more to the master-servant relationship than to the truly contractual rights of the independent contractors who had made up the bulk of the “non-servant” workforce beforehand, can be seen in part from the definitions of “servant” in both British and Australian legislation. For the enumerations which constituted these definitions brought together true servants — farm and domestic — with a number of artisanal occupations, which historical reality and the legal concepts of today mark out as clearly the domain of independent contractors. Thus the 1747 Act (20 Geo II c 19, s I) referred to servants in husbandry (if hired for one year or longer), artificers, handicraftsmen, miners, colliers, keelmen, pitmen, glassmen, potters, and other labourers employed for any certain time. The 1765 list followed the earlier list from artificers to potters (servants in husbandry hired for a year or more were left out), and then included labourers, and other persons who contracted for any time or term whatsoever (6 Geo III c 27, s IV). In 1823, servants in husbandry returned to head the list, without any limitations to hirings of over a year (4 Geo IV c 34 s III). The rest of the list was as in 1765. Apart from the “servants in husbandry” and perhaps the “other labourers”, these workers would surely have been independent contractors. Yet the tentacles of the Acts reached out to take hold of them.

The simpler economic structure of New South Wales in 1828 suggested a simpler definition. The 1828 New South Wales Act (s 1) referred to “any artificer, manufacturer, journeyman, workman, labourer or servant employed in any manner . . .either as a menial or house servant or on any farm or estate ... for any time”. One obvious difference between this and the English provisions is that the categories of the colonial Act referred only to types of workers rather than to types of

industries. Thus “artificer”, “manufacturer” and “journeyman” referred to skilled workers; “workman”, “labourer” and “servant” to unskilled or general workers. The descriptive section following — “employed either as a menial or house servant or on any farm or estate” — supplied an elaboration of the types of work in which the workers were employed. It is not clear from the syntax or punctuation whether this elaboration referred to “servant” only, or to “labourer” and “servant”, or to the entire list. The more sensible interpretation is that it referred only to “servant”. The bulk of the artificers, manufacturers and journeymen of the colony would have been employed elsewhere than on farms or estates. There would seem to have been little reason so to frame the Act as to exclude them, particularly since a large proportion of the workers “employed as a menial or house servant or on any farm or estate”, being convicts, would have been liable to disciplinary action without having to be brought within the meaning of the Masters and Servants Act.

The purpose of the extension of the English list of workers identified by their industry was, however, not simply to indicate the types of persons covered by the general phrase “other labourers”. It had at least two other functions. First, it covered a range of employments which are not within categories concerned basically with orthodox notions of skilled and unskilled work. Second, it took into consideration variations in the nature of the work contract so as to cover workers employed through various gang and “butty” systems. Again, there is unlikely to have been much necessity for such flexibility in a provision dealing with the Australian labour force in the first half of the nineteenth century.

The list of persons covered by the 1840 Act (4 Vic No 23) was similar to that in the 1828 Act with three major differences. First, the Act specifically mentioned “shepherd” (after “workman”) (s 2). It is not clear why this one specific inclusion was thought necessary. It would have been open to the magistrates and judges to hold that shepherds were covered by the reference to a “servant employed in any manner ... on any farm or estate” (9 Geo IV No 9 (1828), s 1); though it might perhaps have been argued that “workman” related to the industrial types of employment suggested by reference to skilled trades — “artificer”, “manufacturer” and “journeyman”, and that “labourer” referred to heavy manual work such as dam sinking, road building etc. Even if these unnecessarily restrictive interpretations had been given to “labourer” and “workman”, there seems little justification for restricting “servant ... on any farm or estate”. It is possible that this could have been interpreted as referring to farm and station hands employed around the farmhouse or head station, rather than to workers employed at outstations such as shepherds. If that interpretation were made, however, the 1840 Act would have required further extension to include, for example, stockmen, hutkeepers, sawyers, splitters, employed drovers, men engaged in clearing and felling etc. Yet only shepherds were mentioned. I suspect the explanation is simple and not profound. By 1845, the bulk of employer-initiated masters and servants prosecutions were against shepherds and it is unlikely that the situation was different five years earlier. The legislators were, therefore, very conscious that the Act applied to those particular workers, and made a point of specifically mentioning them, without realising the uncertainty which would be caused by an isolated specification amongst general categories.


The second difference may be connected with this inclusion of shepherds. The elaboration of “other male servants” was altered to read “hired either as a manual or house servant on any estate from stock-station lands or premises ...” (4 Vic No 23 (1840) s 2). Thus, “menial” became “manual”, and an “or” was omitted. The section no longer dealt with a “servant employed ... as a menial or house servant” and a servant “employed on any farm or estate”, but a composite category — servants hired as “manual or house servants, on any estate farm ...” Was the omission of the “or” deliberate, or unintentional? Did the changes produce a narrower category than that in the 1828 Act — that is, were there groups of workers hired or employed on farms or estates who could not be classified as “manual” workers? Why the change from “menial” to “manual”? Did the legislators feel that these words had the same connotation? Was a shepherd a manual worker? If not, his specific inclusion was obviously necessary, but the other categories I mentioned — stockmen, hutkeepers etc. — were still obviously not catered for.

In fact, the change from “menial” to “manual” has considerable significance when seen in the context of the role of the Acts in extending the range of occupations subject to the controls inherent in the old master-servant status! This interpretation of the purpose behind the definitions of workers covered by the eighteenth and nineteenth century versions of masters and servants legislation is strengthened by another portion of the 1840 definition, which takes up some of the categories of workers who would not have been covered if the restricted interpretation, above referred to, had been adopted. For s 2 referred not only to “any artificer . . . [and] other male servants who shall have been engaged or hired either as a manual or house servant on any estate farm ... for any time or period” but also to “any artificer ... or male servant . . . who shall have been engaged or hired ... for the execution performance and completion of any work job or business taken in task by the piece or in gross and where the amount to be paid shall not exceed the sum of thirty pounds”. (Section 4 used very similar but not identical terms — “any artificer ... or other male servant . . . who shall have hired or engaged himself ... to do perform finish or complete any work or employment whatsoever taken in task by the j piece or in gross”). Again the workers included seem very much like independent contractors.

The organisation in the 1845 Act (9 Vic No 27) recalls that which was intimated j but not effectively accomplished in the 1840 Act. The main categories were arranged on the basis of timework and piecework. Therefore ss 2 & 3 related to “any servant who shall contract with any person ... for any time or times whatsoever”, while s 8 covers “any artificer splitter fencer sheepshearer or person engaged in mowing reaping getting in hay or corn or in sheep washing or other laborer who shall contract ... for the performance of a certain work at a certain price”. Once more, the definition is suspiciously broad, even blatantly so. A labourer “who shall contract ... for the performance of a certain work at a certain price”: this could arguably be adopted as a classic description of an independent contractor!

Interpretation of these sections of the colonial Acts by the Supreme Court did for a time attempt to counteract the capacity of the words of the statutes to encompass independent contractors (eg Ex parte Evennett (1854) 2 Legge 813) but only a handful of cases went from Courts of Petty Sessions to the Supreme Court, and magistrates seemed on the whole unaware of the tenor of Supreme Court decisions.

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It can be demonstrated then that there were important departures in masters and servants legislation from what might have been argued to be the common law principles until then relevant to many of the workers covered by the Acts, and also from what we have come today to regard as established common law principles relevant to “employees”.

As a result of the shift in the legal status of workers being accomplished, there were major conflicts of interpretation of “contractual” rights between “employer” and worker litigants. The views taken by worker litigants support my interpretation of the role of the Acts, for they were firmly based on a widespread and clearly-articulated view of contractual rights which cannot be fully encompassed within the principles of employment law today, let alone within the position of nineteenth century “servants” (below 81-82). The workers’ version of their rights makes good sense, however, once we accept that, by force of tradition, they still viewed themselves largely as independent contractors, and made strenuous attempts to resist the legally-sanctioned efforts of “employers” to bring them within the purview of the Masters and Servants Acts and thereby erode and eliminate the rights they asserted.

(c) The Shift from Masters and Servants Act Provisions to Common Law Principles (i) Charges and Offences

With the achievement, by the beginning of the twentieth century, of the creation of a labour force of employees, reconciled for the most part to that status, discipline of workers by criminal sanctions is less needed. Thus, the common law of employment can now take on the guise of the freely-negotiated contract where the parties resort for settlement of their differences to the ordinary courts of the land and the accepted civil law remedies of damages and rescission for repudiatory breach. Matters that were previously offences under the Masters and Servants Acts, punishable by imprisonment, forfeiture of wages, or fine now take their place as breaches of the contract of employment, giving rise to a liability to damages or to termination of the contract. It is instructive, however, that, though the general tenor of the presentation of rights and obligations has changed and though the consequences are now a matter of civil liability rather than criminal sanction, the underlying content of the employee’s obligations today parallels very closely the duties imposed by the legislation.

The main offences by servants against masters dealt with by the Masters and Servants Acts were absconding, misconduct,11 and loss of property; 12 the main offences by masters against servants were failure to pay wages,13 ill treatment,14 and detention of property.15 These can all be aligned with current common law obligations.

The pffences by servants are clearly related to the basic common law duty of faithful service. A servant who, having commenced his employment, absented himself therefrom, would clearly today be in breach of that duty. A servant who failed to enter into a master’s employ when he had contracted to do so would be in breach of the obligation to enter the employment relationship and continue therein for the stipulated period.

The various activities which were prosecuted in terms of “misconduct” would all amount to breaches of the duty of faithful service. The common law now says that

Vol. 1 No. 1,1982

the duty can be breached by disobedience or misconduct. Charges under the Acts for disobedience, insolence, refusal to work, and negligence would correspond to breaches of the common law contract resulting from disobedience or misconduct. Where charges for “misconduct” under the Acts were based on “uselessness” or “incompetence”, they would relate in common law terms not to breach of the duty of faithful service by misconduct, but rather to breach resulting from failure to exercise reasonable care and skill. Prosecutions for wilful loss of the master’s property would relate to breaches of the common law duty by misconduct; prosecutions for negligent loss (before the elimination of that offence in 1857)(ii) * * * * 16would involve breach of the duty to exercise reasonable care and skill. Thus the Masters and Servants Acts provided for litigation of offences corresponding to breaches of the basic implied obligations of an employee at common law today.

Though I would argue that, historically, there is not, of necessity, a basic obligation of an employer to pay wages, in the majority of cases — if there is not in fact an express term to that effect — the court will imply such a term as having been obviously within the contemplation of the parties. Therefore, the provision for proceedings against employers for failure to pay agreed wages would correspond to that common law obligation — express or implied. Statistics of cases under the Masters and Servants Acts foreshadowed the inbuilt imbalance between the implied common law obligations of employer and employee — the employee’s duty of faithful service being basic and incontrovertible, the employer’s duty to pay wages being usual but arguably not essential. In proceedings under the Acts, there were far more instances of wages claims being dismissed (as unsubstantial) than there were absconding and misconduct charges so disposed of.17

Detention of a servant’s property was made an offence under the Acts (20 Vic No 28, s 8; No 59 of 1902, s 10). In today’s common law terms, this would have to be based on an implied term that the employer is bound to deliver up to a departing employee any property of that employee in his possession or control, and since the detention could amount at least to a tortious act (detinue or conversion) if not in fact to a criminal one (larceny), the implication of such a term would seem to be an obvious area for judicial creativity.

68 A ustralian Journal of Law & Society

(ii) Penalties and LiabilitiesThus it can be seen that the offences covered by the Masters and Servants Acts

parallel the obligations now imposed by the contract of employment at commonlaw. It was in the area of penalties for such breaches that the Masters and ServantsActs differed markedly from the common law as we know it. Not all of the penaltiesimposed were in fact sanctioned in clear terms by the legislation, but one obviousdivergence between the early Acts and the liabilities now encountered was the provision for imposition of prison terms on offending servants. At common law, actions for breach of the employment contract result, where the breach is established, in an award of damages. Under the Masters and Servants Acts until 1857, breaches by servants made them liable to a term of up to three months’ imprisonment. The Acts therefore enforced criminal penalties in an area we now regard as belonging to the civil law. After a hundred years’ exposure to the legal and political philosophy which regards social life as cemented by contracts freely

negotiated by equal parties, each calculating the advantage to himself of the performance by the other of the contractual obligation, our reaction would be to reject the notion that if one of the parties to an employment contract rethinks the calculation, and decides to “buy her or his way out” by a compensable breach, she or he should be subjected to punishment by the state for the repudiation of a private bargain. In 1967 in Coulls v Bagot’s Executor and Trustee Co Ltd, Windeyer J. said (1967) 119 CLR 460, 504) that performance of a contract was the primary right of a promisee, and damages an ancillary right, (thus suggesting that the equitable remedy of a decree of specific performance was available as of right and whether or not damages were an adequate remedy). It was argued by many (eg Meagher et al 1975:417), and justifiably so in strict legal theory, that His Honour was indulging in unfounded heresy. Yet the Masters and Servants Act provisions for imprisonment imposed not just a duty to perform (the duty correlative to the promisee-plaintiff’s alleged right to performance under a purely contractual approach) but a liability to imprisonment in place of the obligation to pay damages, which — Windeyer J. dissenting — is the primary legal remedy in contract.

Furthermore, this existence of a punitive element in an area where the basic common law principle is now one of compensation (McGregor 1980:10, 21; Ogus 1973: 17-18, 283-375) operated selectively. Only servants were punished by imprisonment for offences against the Acts. Where employers were charged under the Acts and the charge found to be proved, the magistrates would order that outstanding wages be paid (4 Vic No 23 (1840) s 3; 9 Vic No 27 (1845) s 5; 20 Vic No 28 (1857) s 5; Act No 59 of 1902 s 7). In an action at law for breach of contract by an employer in not paying wages, if the allegation of non-payment is proved, she or he will be ordered to pay a sum of money which will be equivalent to the amount of wages not paid. The penalty imposed on the employer by the legislation thus had a similar character to the compensatory nature of a present-day common law action for debt, or where appropriate, of a claim quantum meruit in quasi-contract. The penalty for workers was clearly criminal.

Even when the 1857 Act eliminated imprisonment as the primary penalty and provided for initial imposition of a fine (20 Vic No 28 (1857) s 2), the interposition of criminal sanctions continued, for fines are criminal penalties — pecuniary criminal penalties, essentially punitive rather than compensatory. Although debates in the various colonial legislatures praised the substitution of fines for imprisonment as creating equality of treatment under the Act in regard to master and servant, this can be seen not to be so when one looks to the nature of the processes involved. For servants were still subject to criminal penalties and employers only to civil ones.

As well as imprisonment and, later, fines, the Acts provided for forfeiture of wages by servants (4 Vic No 23 (1840) ss 2, 7; 9 Vic No 27 (1845) s 2; 20 Vic No 28 (1857) ss 2 and 4; No 59 of 1902, s 7). The meaning of this provision is not totally clear. It could mean: (i) that wages owing to the servant were forfeited and should, instead of being paid to that servant, have been paid by the employer to the Revenue; or (ii) that the wages owing were forfeited and that the employer was relieved of the obligation to pay wages. It is probable that the second interpretation is the correct one although the 1828 Act made provision for fines to be divided between the prosecuting “employer” and the consolidated revenue or publicly-funded institutions (9 Geo IV No 9 (1828) s 2; 4 Vic No 23 (1840) s 2). This


division of fines between the complainant employer and the state was abolished, except in cases relating to the issue of discharge certificates — ss 13 & 14 and of hiring the servant of another — s 15 — by 9 Vic No 27 (1845) s 23. “Fines” under this Act were thus in part an extraction of wages by the State and in part a forfeiture of them to the “employer”. The first interpretation, when it did not include such a division, would result in a situation no different from the imposition of a fine, and there would seem to be no purpose for the provision or use of two overlapping sections.

In one way, forfeiting wages so that the employer was freed of the obligation to pay was much closer to the compensatory nature of a modern damages claim than the requirement that the employee pay a fine to the State. There is, however, some conflict between the Acts’ provision for forfeiture and the principles of common law in relation to employment. At common law, where an employee has committed a breach of his contract — eg by leaving without proper notice — if there are outstanding wages, the employer cannot keep those wages or an appropriate portion thereof to cover the damages he would have received had he sued for breach of contract, and if the employment is covered by an industrial award, that sort of self-help is a breach of the award and makes the employer liable to a penalty.

While it is true that the employee who fails to give the proper notice is in breach of his contract the employer cannot deduct this as an amount from the total money owed to the employee nor can the employer withhold money where he anticipates that the employee may be about to walk off the job (Brooks 1979:60). j

Yet, while employment was regulated by the Masters and Servants Acts, the sentence of forfeiture of wages directed the employer to deduct a sum from wages owing. At common law the withholding of wages where an employer anticipates the employee leaving is a repudiatory breach of contract by the employer and justifies the employee in leaving. But in the context of nineteenth century New South Wales, it was behaviour practised by perspicacious masters, and recommended by the 1845 Select Committee:

Your Committee conceive that employers should attend to the check upon j misconduct which they may possess by not paying . . . servants in full until the j periods of their engagements have expired (NSW Select Committee 1845:509).

The amount of these pecuniary penalties imposed on servants was limited by reality and by the jurisdiction in fact granted. The magistrates could impose fines of up to £10 only (20 Vic No 28 (1857) s 2; Act No 59 (1902) s 4). The orders for j forfeiture of wages could cover the whole or any part of the wages owing (9 Vic No i 27 (1845), s 2; 20 Vic No 28 (1857) s 2; Act No 59 (1902) s 4) and were thus | circumscribed by the limited funds available to servants. Provision for larger fines j would often have been pointless, unless what was wanted was frequent recourse to the default sentences of imprisonment for non-payment of fines, established in 1857. The Act of that year omitted the provision for imprisonment of servants under the absconding/misconduct section except in the event of their failure to pay the fine of up to £10 which the section introduced as the penalty and the failure of sufficient j distress to produce the sum, in which case the sentence was limited to a maximum of |



14 days. It is, however, interesting that at a time of what is claimed to have been a serious labour shortage, in 1845, (Cane 1961: 19-20; Coghlan 1918: Vol 1,432-436) a legislature, made up predominantly of employers, and advised by a Committee which included some of the leading pastoralists of the Colony, should have provided for imprisonment of what labour there was, and that once that shortage was alleviated, they should abandon the imprisonment provisions! This could be taken to suggest that the labour shortages were less severe than previous historical accounts have led us to believe, or at least that they were not geographically uniform in their severity.

Reality did not however dictate the limitation of the pecuniary obligations of employers who (for the most part) had funds to meet the full claims for wages or amends for ill-treatment; nor did the limitations of their obligations accord with the basic principles of law relating to contractual damages. Where claims for unpaid wages were made, there was a jurisdictional limit of £30 in 1845 (9 Vic No 27, s 5) and £50 in 1857 and 1902 (20 Vic No 28, s 5; No 59 of 1902, s 7). The order for payment of “amends” — something which sounds much more in character with the compensatory nature of a damages award than the punitive nature of a fine — after a successful claim for ill-treatment under the 1845 Act (9 Vic No 27 ss 9 and 11) was limited to a maximum of £10 in the case of piece workers under s 9 and to a maximum of the equivalent of six months’ wages for workers hired for a fixed or indefinite period under s 11. This limitation reflected the policy of the Acts, and the concerns of the legislators and the interests they represented, rather than the legal doctrines relating to contract established today, for the basis of measuring contractual damages is the establishment of a sum which will put the plaintiff in the position in which he would have been if the contract had not been broken but had been fully and properly performed (Robinson v Harman (1848) 1 Ex 850 per Parke B). Thus, if a shepherd in the 1850s who was handling two flocks was owed a year’s wages at the end of his (normal) twelve-month agreement, that would have amounted probably to between £60 and £80;'8 so that if the “employer” had refused to pay, the shepherd’s damages in contract would have been £60-£80.18 By limiting the order to £30 (or £50), the Acts did not apply this principle of compensating for the loss flowing from the breach.

Under s8 (1840), sl6 (1845) and si3 (1903), the Acts established an arbitral jurisdiction in the magistrates whereby magistrates could arbitrate in disputes between masters and servants over matters not covered in the clauses relating to absconding, misconduct, unpaid wages or any of the other offences discussed above. Section 8 of the 1840 Act spoke of the magistrates being entitled “in any case not hereinbefore specially provided for to hear and determine any complaint difference or dispute which shall happen and arise” between a master and a servant.

While the wording of s 8 was clearly appropriate to an arbitral proceeding, with its references to hearing and determining complaints and making orders for awards, s 16 of the 1845 Act made the proceedings sound more like the prosecutions for absconding, misconduct or loss of property. It provided that “all contracts disputes differences claims and demands between masters and servants arising out of their connexion as such . . . shall be cognizable in a summary way”, and in resolution of such disputes, the magistrates could “make orders . . . and determinations”. The


sections differed also in that jurisdiction under s 16 of the 1845 Act couli be exercised by either one or two Justices whereas s 8 of the 1840 Act requirec the arbitral hearing to be conducted before two or more Justices.

The 1857 Act returned to the formula of 1840, providing in s 10 that “it shal be lawful for any two or more justices to hear and determine in a summary manner any complaint difference or dispute . . . and to make such order or award as . . . ;hall seem meet. . .”. The specification of these disputes as being not otherwise provided for was, however, omitted. Section 13 of the 1902 Act was worded alnost identically, apart from providing that any stipendiary or police magistrate, as well as any two or more Justices, could exercise the jurisdiction. It appears (in the absence of records of its exercise)19 that this aspect of the jurisdiction under the Acts par:ook a little more closely of the character of common law actions than did the prosecutions under the absconding, misconduct and loss of property sections and even the wages and ill-treatment sections, since the decision of the magistrates wis to be by “order” (9 Vic No 27 (1845) s 16) or “order or award” (20 Vic No 28 (1857) s 10) (although the 1857 “order or award” was to be enforced by imposition cf “a fine or penalty”), and the 1845 provision did not impose any limit in money terms on the order to be made, and thus would have enabled proper compensation according to contractual principles. The 1857 section however introduced a £10 limit.

It can be seen from this analysis that the offences covered by the Acts included most present-day breaches of their common law duties by employees, but only some breaches of common law duties by employers. For, despite the limited nature of the implied duties of employers, particular employment contracts may in fact subject employers to a number of express duties. Of these, the only corresponding matters covered by the Masters and Servants Acts were the obligation to pay wages, to return the worker’s property and (in 1845) to refrain from ill-treatment of the worker. It has also been shown that, whilst these offences foreshadow (though they do not exhaust) common law breaches, the penalties provided by the Acts involved j considerable differences from the practices and principles of contract law, and these | differences were carried even further by the magistrates in their application of the I Acts.

(d) Application of the Master-Servant Concepts by Magistrates \The way in which the Masters and Servants Acts structured the emerging

relationship of employment by incorporating into it the discipline applied in earlier times to servants appears even more graphically from an examination of the actual application of the Acts by the magistrates to the day-to-day work disputes brought before them.

However, magistrates were not always correct in their interpretation of the Acts. This is not altogether surprising. Most magistrates were not trained in law, being simply Justices of the Peace appointed on their standing in the community, and those decisions which were in error were for the most part made by such Justices rather than by the Police (later Stipendiary) Magistrates who were career personnel; besides, even the Police Magistrates occasionally gave faulty decisions, (and conversely, many of the decisions of even the lay magistrates demonstrated a

commendable grasp of legal principle). Moreover the legislation incorporated complexities and other obscurities sufficient to tax even highly-trained legal minds (Merritt 1981:Ch 2).

Probably the most common and most outstanding “error” was the imposition of sentences not provided for in the legislation. One such sentence was cancellation of the agreement. Section 16 of the 1845 Act and s 10 of the 1857 Act, which created the arbitral jurisdiction, provided for an order cancelling an agreement, but this was not included in the powers given under ss 2, 3 and 4 covering absconding, misconduct and loss of property. In 82 cases out of the 8,199 I examined an order of cancellation of agreement was made, and they all appear from the records to have been brought under ss 2-4 rather than ss 10 or 16. The power to cancel agreements was in fact given to magistrates in 1562 by the Statute 5 Eliz c 4 but the 82 instances of the order were all made in cases brought under the separate Masters and Servants Acts passed by the New South Wales legislature. These orders were therefore not justified by the provisions from which the magistrates took jurisdiction over the cases.

Even more unjustified was the imposition of a sentence requiring a servant to return to his service. There was no provision anywhere in the Acts for such an order, and it ran counter to what was already one of the most fundamental principles of the common law — that one cannot get, directly or indirectly, specific performance of a contract involving personal services (Johnson v The Shrewsbury and Birmingham Railway Co, (1853) 3 De G & M 914; contrast Hill v C A Parsons and Co Ltd [1972] Ch 305. See also Spry 1980: 109-112). Yet this is exactly what an order to return to service amounted to. Despite the total lack of judicial or legislative authority for such orders, their occurrence was sufficiently widespread as to suggest a settled practice. In 140 cases, a direction to return to service was the sole order made in decision of the dispute. In a great many other cases where a sentence of imprisonment was imposed or an order to pay a fine or to forfeit wages was made, this was accompanied by an order to return to service. This practice involved both a breach of common law principle and departure from the jurisdiction conferred by the Acts.

Those cases which were misapplications of the legislation were mostly denials of jurisdiction. For example, there were two cases which the magistrates declined to hear on the grounds that, as the parties’ agreements stated no specific term, they did not come within the Act. (Hyam v Hughes, Shoalhaven, 4 May 1858; Sheppard v Burke, Merriwa, 14 February 1866). Yet the Act (20 Vic No 28 (1857) s 2) expressly covered “any servant [who] shall contract with any person to serve him for any time or in any manner ...” [italics mine]. The contract for general hiring or indefinite duration was firmly established at that time, being subject to the presumption of a yearly hiring — that is, that where no term was specified, the contract was presumed to be for a year (and therefore, in the absence of contrary agreement, a year’s notice was required).

The denial of jurisdiction by the Tenterfield Bench in the case of Murray v Hammerman (8 April 1865) was also clearly in error. The charge was “Inducing C. Buchie to abscond”, and the Bench said the case was “not within the Masters and Servants Act”, yet s 9 of the 1857 Act said “If any person . . . shall cause induce or persuade any such servant ... to violate any agreement . . . which he may have


74 Australian Journal of Law & Society Vol. 1 No. 7, 1982entered into to serve with any master, such person so offending shall . . . forfeit and pay a penalty not exceeding ten pounds . . . ”.

The case of Russell v Flynn in Warialda on 31 July 1854 was another instance of misapplication of the legislation. The case was remanded until the 17 August for the attendance of a second magistrate. Section 2 of the 1845 Act did specify that the cases be tried by “two or more Justices”, but the Justices Act (14 Vic No 43 (1850) s 33) provided that a Police Magistrate could exercise any jurisdiction conferred on two justices and Police Magistrate Bligh was the single magistrate before whom Russell v Flynn had been called.

The survey of the provisions of the Act in part (c) showed that the matters for which proceedings could be brought before the magistrates foreshadowed a number of the duties of employers and employees now established by the common law of employment and actionable before the ordinary courts as breaches of contract attracting a liability in damages. I have suggested also that although the law relating to employment is framed in terms of contract, there still exists an imbalance between the rights of employers and the correlative rights of employees — an imbalance which does not exist between a principal and an independent contractor where the mutual rights are governed simply by the actual contract at which the parties arrive by negotiation. Much work in industrial capitalist society is still done by independent contractors but while the organisation of that work can accommodate the rights which those workers can obtain for themselves in contractual negotiations, the system relies for the bulk of its labour force on a far more strictly-regulated body of workers — employees — whose rights are for the most part delineated by over-riding legal principles (embodied in the “implied terms”) rather than by expressly-negotiated contracts. The restricted nature of the rights of employees was developed by subjecting them to the post-feudal superintendence over movement, job control, and conduct which had characterized the servant subject at all times to the almost patriarchal authority of the master. These status-oriented features of the nineteenth-century work relationship, as governed by the Masters and Servants Acts, are well illustrated in many of the cases reported in the New South Wales Bench Books.

It was not uncommon for magistrates to convict for absconding or misconduct when such action was arguably justified by the prior behaviour of the employers. For example, many contracts of the nineteenth century, particularly where the servant was a rural worker, involved an agreed obligation on the “employer” to supply rations. So common was this that there came to be a standard ration of so many pounds of meat, flour, sugar, tea and salt. But if servants left because they had not received rations, magistrates often fined or imprisoned them for absconding (Church v Green, Wagga, 17 June 1851; Master v Ross, Tenterfield, 13 January 1854).

Another way in which magistrates enforced a far-reaching authority in the employer was to punish a refusal to work as misconduct when what the worker had refused to do was work other than that for which he was hired. For example, when John Callaghan, who was hired as a shepherd by William Vakins of Wellingrove, was ordered to go to the head station and sink a well and declined — saying hie did not understand that sort of work, he failed in his subsequent claim for wages con 23

January 1851 before the Wellingrove Bench on the grounds of his refusing to obey orders.

Wages were made dependent upon the “employer’s” satisfaction with the worker’s diligence and good conduct, encouraging a belief that they were earned not just by work but by a proper conformity to the worker’s status as the subservient party in the relationship. Thus magistrates frequently held that where an “employer” had grounds for a charge of misconduct against a worker, the “employer” had a right to hold back wages already earned.

Sometimes the “employers’” argument for such withholding of wages was that they believed the servant was about to abscond and that they kept back the wages to ensure that she or he could continue at her or his work. This approach had been recommended by the 1845 Select Committee, (see above) and it was accepted by magistrates (Pocock v Campbell, Wellingrove, 3 February 1852; Donoghue v Felgate, Wilcannia, 14 September 1883).

The interpretation given to the Acts often imposed serious limitations on the worker’s freedom to end the relationship (by giving notice) though the “employer” was seldom prevented from dispensing with an unwanted servant. When F. Atkinson sued T. Coupland for wages in Young on 21 April 1863, he gave evidence that he had been given only one pound after a week’s work. He had been hired at 25/- per week and then discharged without notice at the end of the week. Though he claimed that Coupland should have given him a week’s notice, Police Magistrate Pearce only ordered Coupland to pay 5/- (the balance unpaid for the week worked) and costs.


(e) The Workers* Interpretation of the Work RelationshipThese cases suggest that the discipline imposed on workers through the Masters

and Servants Act left them with rights which were very restricted in comparison to those “employers”. Though the new regimen of employment law was based on the principles of contract with its (illusory) notions of mutuality, the relations in the workplace, as the magistrates gave effect to them, were very one-sided.

The workers did not accept this position without question or complaint. They held a very different opinion as to the proper nature of work relationships and the rights those relationships should embody. Thus “employers” and servants’ perceptions of the rights and obligations created by their legal relationships were often markedly different, both as to technicalities and as to fundamentals. The parties’ notion of their roles influenced the way they initiated and defended proceedings, and indicated the contractual terms they believed to bind them. Workers put forward a much broader interpretation of their contracts than “employers”. They saw their contracts as incorporating a much more balanced distribution of rights, less restricted by the implications of the survival of the status-oriented master-servant relationship, and much closer to the theoretical equality of the freely-negotiated contract. In this, they sometimes went far beyond the boundaries of the principles since developed by the courts as comprising the common law of employment. At the same time the workers’ conception of their rights often involved a more strictly contractual form than the common law came to accept. Furthermore, despite their arguments for rights not upheld by the then current state of the law, workers were in

76 Australian Journal of Law & Society Vol. 1 No. 1, 1982general well aware of those rights which the law and the legislation even then did allow, and well able to argue for those rights in a legally meaningful way. The wider rights for which they contended were also coherently formulated, and in keeping with the broad conceptual framework of the law of contract, so that it is not so much their interpretation as the particularities of modern employment law which we should characterize as displaying idiosyncracy and illogicality.

In conducting negotiations and working out disputes — which arose from the realities of the power structure of the workplace — through the established medium of Masters and Servants Act proceedings, the parties’ arguments worked over the basic elements of the developing law of employment. Many cases involved disagreement as to whether any legal relationship had in fact arisen between the parties. Sometimes this involved the claim by a defendant “employer” in a case for wages that the complainant had not been hired but taken in and given keep out of charity or because of family ties (eg Sinclair v McKay), Wilcannia, 19 February 1886). Sometimes workers charged with breach of the Act denied that there was any proper agreement. In so doing, they demonstrated a formal approach to the process of contracting far more “legalistic” than that now accepted by the common law, with its recognition of employment contracts entered by a “wink and a nod”, (eg Ferguson v John Dawson Ltd [1976] 1 WLR 1213). Since it is the worker who stands to lose by legal enforcement of contracts entered with minimal formality and fleshed out by unequal implied terms, the nineteenth century workers’ attempted insistence on agreements concluded only after full discussion and acceptance of express provisions demonstrated a keen grasp of the way in which the law could be used to protect their interest within labour relations. In arguing that an employment contract involved greater formality than is now required by the courts, they also of necessity posited other more informal agreements not legally binding, or not completely so. This argument was based on a demand that there must be in fact, and not just in legal fiction, an intention to create legal relations, (eg Parsons v Southern Tableland and South Coast Racing Association [1978] 1 NSWLR 47).

When workers acted on their (arguably sound) view that they were not legally bound, they ran the risk of prosecution for absconding by “employers” who insisted a contract had been created. In May 1858, Barclay in Eden prosecuted Higginbotham for absconding. He said he had hired him in April to repair a fishery and that Higginbotham had absconded after a few days and hired with Falkiner, the whaler. Higginbotham agreed that he had gone to repair the fishery but said he had “made no agreement”. Unfortunately for him, the developing law laid down that his acceptance of the repair job implied a fully fledged legal agreement and he was therefore sentenced to 14 days imprisonment. (Even though the Act no longer permitted the imposition of such a sentence). William Gill also defended himself against an absconding charge by denying a formal agreement when prosecuted by John Jenkins of Gundagai on 13 December 1858. He denied he had any agreement for service with Jenkins, saying he “had made some sort of agreement but it wasn’t a regular agreement”. He escaped a penalty because the bench “discharged (him) from custody at the solicitation of his master”. In defending their insistence on fully negotiated contracts, workers placed great importance on written and signed agreements. It would appear to be as much due to the desires of “employers” as to any supposed lack of sophistication by workers that so many contracts were oral

only. One man even crossed swords with a solicitor “employer” on the significance of a signed agreement. When S. Scott was charged by Manby, a solicitor in Eden, with absconding on 8 October 1867, he said he had never signed an agreement with Manby and had in fact refused to do so. But since the law did not insist on a written and signed agreement to establish a contract of service, Scott was fined £5.

Perhaps the most contested aspect of nascent employment contracts litigated through the Masters and Servants Acts was the question of duration: had the contractual term been brought properly to an end or had it been wrongfully terminated? By the principles of employment law as established today, the contract is terminated lawfully if a fixed term has expired or if the proper period of notice is given and served (Mackin et al 1978:49-53). During the period of that law’s development, disputes arose over each of these methods of termination. It is now established that the contract can also be terminated where the employer is in breach of its terms and the employee accepts the breach as a repudiation discharging him from further obligations (Guest 1975:523-526), and there were Masters and Servants Act cases where a worker accused of absconding gave evidence that he regarded himself as having been relieved of further performance in this way. The arguments were unsuccessful because they were in advance of judicial acceptance of the principle. At other times, “employers” told servants to leave as a result of disputation in the workplace and later alleged absconding or refusal to work. In this situation also, the servants attempted to argue the contract had already been brought to an end by the “employer”.

The comment of one Bendemeer worker sums up neatly the views of workers as to the mutuality of obligations to give notice. In the case of Easton v Jackson for wages on 2 January 1864, Easton said he had been hired by the week and told by Jackson he could not leave without a week’s notice. He was discharged without warning on a Monday morning, and told Jackson “it was very strange (he) should say that without giving a week’s notice or paying wages”. The bench ordered Jackson to pay Easton his wages immediately. As this case shows, “employers” were not always willing to accept that notice requirements could bind both parties, (see also Bar dell v Cornish, Merriwa, 25 May 1859). They thus often did not regard as effectual notice given by workers, though they did not hesitate to treat workers’ failure to give notice as actionable under the Masters and Servants Acts. In Powers v Stephens, Armidale 29 January 1862, the complainant — a mail driver — was hired by the week and gave the requisite week’s notice. When this expired, his “employer” asked him to stay, that is — to enter a new agreement, the previous agreement having terminated on expiry of the notice. Power agreed to do so if the “employer” he had arranged to go to was willing and able to find someone else. He went on to the new job and wrote back to Stephens saying the new “employer” could not get anyone else. Power had therefore acted completely in accordance with the old contract and was now proceeding to comply with the new, but when he went back to get his wages from Stephens, the latter refused to pay. He said in evidence before the bench he had tried to get a warrant against Power for absconding, but that this had not been issued because Power had already issued a summons against him, Stephens, for wages. Stephens obviously found it unpalatable that the worker had been able to release himself by the giving of notice.


78 Australian Journal of Law & Society Vol. 1 No. 7, 1982

It was common for “employers” to ask workers to enter a new agreement on the completion of an old one. In these circumstances, workers frequently agreed to contract for a shorter period, for example — a three month hiring following a yearly one, or they might agree to stay for a few days as a favour until the “employer” found a replacement. Disputes sometimes arose when the shorter hiring or period of grace ended, the “employers” arguing that the workers had entered a new yearly hiring, which they would then attempt to enforce through the Acts. Norman, a Shoalhaven worker, claimed the wages earned in such a period. He had completed his agreement and refused to hire for another 12 months but agreed to stay a few weeks until his “employer”, Mackay, found a replacement. He then claimed the wages earned during that time. Mackay argued Norman had agreed to stay a further six months, but on 20 August 1860, the magistrate accepted Norman’s argument and ordered Mackay to pay the wages claimed. However, the servant who did not ask for a settlement and leave immediately the term of the hiring expired still ran the risk of being told he had impliedly entered a new agreement to which he could be held by the processes of the Acts.

Just as “employers” attempted to disregard notice given and to extend periods of grace allowed by servants, probably to protect themselves against the problems of periodic shortages of labour, they often tried to escape the effects of hasty discharges resulting from arguments and disputes in the workplace. They sometimes resolved these disputes by ordering a servant to leave, and then, when the servant had done so, denying that he had been discharged and trying to hold the servant to work out the agreement in full. An application of general contractual principle to agreements for the performance of work would have meant that the workers were entitled to treat such an order as a discharge and to leave, and the modern law of employment does apply general principles in such a situation. Even in those early days of employment law’s development, many magistrates already gave effectt to that rule, but it was not then so well established, so that all magistrates acted upom it (Lea v Radford, Mudgee, 31 December 1856; Ryan v Kane, Nowra, 27 April 1859; Naughton v Wiseman, Warialda, 15 February 1849).

While the provision of the contract (express or implied) setting its duration was the single most contentious term, leading to numerous disagreements between “employer” and worker, disputes arose frequently over various other terms; of particular contracts. In the case of contracts concerning shepherds, one such term related to the obligation — or absence thereof — to compensate the “employer” for lost sheep. Shepherds would argue that they were not liable to make compensattion because there was no term in the agreement providing for it. The practice: of | requiring shepherds to pay for sheep lost was particularly oppressive to them, ;and ! their attempt to escape it by this example of worker insistence on an express agreement was understandable, though doomed. There was specific provision for compensation in the sections dealing with loss and destruction of property, (9 (Geo IV No 9 (1828) s 3; 4 Vic No 23 (1840) s 7; 9 Vic No 27 (1845) s 4; 20 Vic No 28 (1857) s 4), and the “implied terms” with which employment law was being constructed allowed the imposition of many such obligations upon workers in the guise of teirms incorporated into their contracts by custom and practice (Guest 1975: 140-141). lln a predominantly pastoral economy, this was an obvious area for the doctrine: of implication to be utilised. The cases where the shepherd’s argument for a strictly

express contract was tried therefore failed (eg Heyes v Williamson, Armidale, 6 January 1865; Carroll v Bayley, Merriwa, 16 March 1869).

The actual work contractually agreed on was also an area of contention. “Employers” attempted to construe this term of the contract broadly while workers obviously favoured a strict application of the agreement. This raises questions about the parties’ approach to their roles within the employment relationship (eg Pearce v Felgate, Wilcannia, 8 January 1884). Elizabeth Simmons, a general servant, was discharged for refusing to work, and responded by a wages claim (Simmons v Penrose, Wilcannia, 3 July 1883), in which she gave evidence she had not refused to work — it was part of her agreement, she said, not to do any washing up on washing day. Such claims are understandable from workers professing some recognised trade. They are not surprising either in hierarchically-divided types of domestic service, such as parlourmaids, where the status and privileges of the various positions would have been jealously guarded and where the nature of the working environment encouraged deference from the lower ranks of servants not only to the “employer” but also to the “senior” servants. Many of the occupations of colonial and rural society were, however, inherently general and diffuse, as witnessed by their appellation: “general servant” and “generally useful”. Yet even amongst these workers, there was clearly a keen belief in the bounds of the contract and the legal effect of terms regulating work, as Elizabeth Simmons demonstrated.

The disagreements over obligations imposed by the contract discussed in these pages show that, on the whole, “employers” relied on the restrictions of the master-servant relationship, whereas workers looked to the express provisions of their agreements, either to enforce those provisions or to deny obligations not covered in express terms. Such a denial meant in effect a rejection of the view that implied terms could insert obligations into the gaps left where no express provision was made. By contesting these implied obligations, the workers were in many cases claiming implied rights, for the absence of an obligation could create a right. Thus the approach of both groups to the emerging employment contract, though in one sense contradictory in that a contract based on implied rights and duties was set against a formal agreement on expressly negotiated terms, had this similarity: that both attempted to gain legal recognition for a particular theory of the law relating to the work relationship. Both sought to set up what was a political (in the broadest sense) conception of the respective roles of “employer” and worker in labour relations.

(0 Conclusion: From Master-Servant Law to Employment Law — the Second PhaseMany of the elements at issue in the confrontation discussed in the previous

section are still the subject of struggle between employers and employees today. The establishment of a “right to work” in its various manifestations is a case in point, though inroads have been made into the law’s previous denial of such a right (Hill v C. A. Parsons and Co Ltd, [1972] Ch 305; Langston v Amalgamated Union of Electrical Workers, [1974] 1 All E R 980 per Lord Denning MR), and its related enforcement of the rule of “no work no pay” (Gapes v Commercial Bank of Australia Ltd, (1979) 27 ALR 87). Before these attenuated advances had been made, nineteenth century workers were forced to rely on arguments based on the particular terms of their contracts — though these were sometimes, surprisingly, successful. In


80 A ustralian Journal of Law & Society Vol. 1 No. , 1982

Hines v Chapman (Maitland, 7 October 1853), the complainant claimed wages for 11 days’ work. He had in fact worked nine days, and was enforcedly idle on two further days “because of bricklayers drinking”. Chapman jibbed at payiig for those days and Hines argued there was no agreement he was not to be paid if other workers were absent. He was thus, in effect, arguing for the insertion into the silence of the contract of a right to be paid for readiness to work. The bench upheld his argument and ordered Chapman to pay the full amount claimed.

Some of the rights contested in the Masters and Servants cases have found their way into modern employment law. This modification of the legal principles evolving in the nineteenth century in relation to work relations is for the most part the result of the collective action of workers in the intervening period and of legislative response to that action,20 but it should not be seen as a direct reaction to worker pressure. Employment law in the twentieth century has not followed a clear and untroubled path of development from its infant stage in the nineteenth century when the influences of developing capitalism, the master-servant relationship and the quasi-mystical theories of contract seemed to be the only fairies present round its cradle, for another came unbidden to the christening to make its promises and predictions for the infant’s future. That one was organised labour.

I do not intend to argue that trade unions, or even the parliamentary representatives of labour, had any direct influence on the development of the underlying theories of employment law. I do not believe they did. Campaigns by the labour movement may have affected the introduction of statutory modifications within the broader field of the law relating to work relations in Britain — in such areas as workers’ compensation law, the demise of the doctrine of common employment, (Employers’ Liability Act, 1880 (England); Radcliffe v Ribble Motor Services Ltd, [1939] AC 215, Law Reform (Personal Injuries) Act 1948 (England), the immunities granted by the Trade Disputes Act 1906 (England) to trade unions in the wake of the Taff Vale decision ([1901] AC 426) and so on — and obviously the labour movement in Australia had a serious interest in the introduction of state and federal arbitration systems. But the pivotal theories about the nature and obligations of the employment contract were the creation of judges, and on this creation organised labour exerted no direct influence. Where it did make its mark, however, was on the general climate of opinion; so that the full-blown employer-oriented bias of the developing employment contract became somewhat less justifiable and the introduction of some reality into the fiction of the freely-negotiated contract between juridical equals somewhat more pressing. As a result of this, I would suggest that the rigour of the law being applied through the Masters and Servants Acts was diluted by later decisions of the superior courts, and thus some of the cases examined in earlier pages would, if they came before the courts today, have had different results.

One such amelioration is the acceptance by modern employment laws that breach of contract by an employer may give the employee the right to rescind — in other words, to leave. We have seen (at 76) that under the Masters and Servants Acts, a worker who did so would be charged (and convicted) for absconding. Another change is the recognition that the obligation to give notice of termination binds the employer as well as the employee (77-78). Another is the rule that an employee is

not bound to obey an order which requires her or him to do work outside the nature of the work contractually agreed on (79).

Another way in which collective action and individual militancy indirectly influenced the content of employment law was the legal recognition, little by little, of “practices” built on concessions won in struggle and negotiation. In guarding and consolidating these gains, workers used then a combination of strategies equivalent to those used today — industrial action and legal consolidation. Today, such concessions, over-award payments and conditions, are introduced by employee organisations into logs of claims, and, if successful, incorporated into future industrial awards. In the nineteenth century, workers sought to have them incorporated into their individual contracts by accepting in this context the idea of terms implied by custom. One such custom was that shearers stopped work early on Saturdays. In Yass in December 1870, shearers working for P. Bernard stopped at 3.15 p.m. on Saturday and left the station “because invited to go to a spree”. Bernard attempted to reduce their wages on account of the several hours work lost (the normal hours were 6.00 a.m. to 6.00 p.m.) and to treat them as having repudiated their contracts, and in a claim by J. Payne for wages on 14 October 1870, a reduction of £2/2/0 in wages was upheld. This early blow in the move towards a shorter working week was thus deflected.

Finally, of course, direct pressure through trade unions and political representation has affected the broad content of labour law, even if it has not been brought to bear on the narrower, though crucial, corpus of employment law. The earliest provisions for schemes of compensation to injured workers have their origins in this sort of agitation. Even under the body of law surrounding the Masters and Servants Act, the rights of workers unable to work through illness or injury were frequently at issue. While today the situation has been resolved by legislation providing compensation for injury at work and by clauses in industrial awards, nineteenth century workers attempted to establish their rights through contract. In his wages claim against J. M. Doyle of Maitland on 27 October 1862, J. Carroll admitted having left work on a Tuesday afternoon to see a doctor and returning the next day. He had asked permission to go but Doyle had said he could not spare him and had told Carroll if he left without permission, he need not return. Doyle then refused Carroll a settlement. Carroll told the court he knew he had done wrong but said he was ill. Doyle was ordered to pay £1/6/1 wages. Since the report does not disclose the amount of wages claimed, it is not possible to tell whether they were reduced because of Carroll’s unauthorised trip for medical attention. Other workers were less apologetic about their claim to a right to time off for illness or injury. E. Bowd of Mudgee broke his leg when bringing in a horse and was eight weeks in hospital. When he left hospital, he went to his “employer”, John Dickson, and asked for his wages. Dickson refused them, saying he would pay the money to the hospital. Bowd sued for the money on 15 July 1857, arguing that he had not asked Dickson to send him to hospital and should therefore not have to lose his wages to pay for the treatment. Dickson was ordered to pay Bowd the amount claimed. The view of a worker’s contractual rights implicit in the arguments put in these cases was presented as an explicit formulation by William Todd, a carpenter and joiner, who was sued by Philip Sullivan, a Tenterfield inn keeper, on 19 November 1858, for refusing to work through illness. Sullivan gave evidence that Todd had asked for


Vol 1 No. 1, 1982

wages for a month during which he had been ill for a fortnight. To Sullivan’s suggestion that it was “rather unreasonable to expect wages for that time”, Todd replied that the “employer” would have to pay if his servant was ill for twelve months. Developments in the common law have not completely borne Todd’s contention out. Arguably, illness of long duration would today result in automatic frustration of the contract, (Hart v A. JR. Marshall & Sons (Bulwell) Ltd [1977] 1 WLR 1067; [1977] ICR 539) though in the case of shorter illnesses the employer would be bound to pay wages unless the contract specifically provided that wages would not be paid for time not worked, (Marshall v Harland & Wolff Ltd [1972] ICR 101). But today Todd would also have statutory rights.

However, not even the welfare legislation of the last fifty years or even the more recent “floor of rights” could be expected to have established the sort of relationship contended for by Ephraim Gimbert, which takes to its limit the radical view of the contract on which the workers’ claims previously discussed were based. Gimbert was a shepherd for R. & W. Lowe of Mudgee, in charge of two flocks. At the end of his twelve-month term, when he gave up the flocks and applied for a settlement, the Lowes said they had lost £300 through the bad condition of the sheep which they attributed to unsatisfactory shepherding by Gimbert. Gimbert did not deny this. He simply told the Lowes “when a master hires a man he takes him for better or worse” (Gilbert v Lowe, Mudgee, 2 September 1857). There is a sense in which this claim, far-reaching though it is, can be supported if one treats the employment contract as one of equal rights expressly negotiated. The “duty of care and skill” is essentially a fiction. A worker engaged in contractual negotiation, asked by the officious bystander if he understood that he would be liable in damages to the employer for failure to do his work with skill, would never give the testy reply “of course” on which the implication of a term allegedly depends. (Shirlaw v Southern Foundries (1926) Ltd, [1939] 2 KB 206). While liability for damage caused by negligence can be justified, the law’s insistence on the mutuality of choice by employer or employee and by employee of employer logically involves the result that the employer has taken the chosen employee with whatever lack of skill and incapacity he may have — taken him “for better or worse”. But though logical, this is still not the law, and even today the duty of reasonable care and skill, and implied warranty of skill on which the'duty is based, leave no room for the interpretation of the contract which Ephraim Gimbert put forward over one hundred years ago.

These cases demonstrate the fundamentally different perceptions of the work contract held by litigating “employers” and workers, based on opposing views of the rights and obligations appropriate to their roles within the employment relationship. This opposition of views represented the conflict between the workers’ attempt to retain the rights of independent contractors and the employers’ insistence on their subjection to the restrictions previously imposed on servants. The tensions thus created are still unresolved in the common law of employment, despite inroads now being made through the courts into the earlier breadth accorded to the “employer’s” rights, and advances achieved through legislation creating not individual rights in contract but collective rights attaching this time to the status; of employee. The use of the Masters and Servants Acts surveyed here was a major part of the ongoing process of settling the legal rights and duties of employers and employees which has been conducted on a number of fronts, of which industrial

82 Australian Journal of Law & Society

“warfare”, the passage of protective legislation and the system of compulsory arbitration are but more visible examples.

* * *

This survey demonstrates the key role which masters and servants legislation played in the development of employment law in New South Wales. They provided a statutorily-based structure through which the courts were able to intervene and control the content and the operation of employment relationships. Despite the consistent recourse to the Acts’ procedures by workers, the effect of the regulatory process was to entrench the privileges of masters as the contractual rights of employers. Thus, at the end of the crucial period within the process — by the 1880s and 1890s — as pastoral occupations began to yield in importance to urban industrial ones, the contours of the “employment” contract had been shaped by six decades21 of regulation of “employees” in terms of concepts designed in feudal and post-feudal days for servants. The servant became the employee.

This concept of “employee” was deeply marked by the circumstances of its birth. If the law did adopt for a time in the early twentieth century an “abstentionist” approach, (which is questionable particularly in Australia where the new century saw the introduction of a national scheme of compulsory arbitration which soon became a dominant force in employment relations), abstentionism was more appearance than reality, for the effects of the law’s vigorous intervention in the nineteenth century would take some decades to dissipate. Thus, direct legislative intervention into the field of employment was, for a time, less necessary — until a changing political and economic climate and a changing mood amongst workers dictated its vigorous renewal, by both labour and conservative governments, on the one hand to safeguard gains indirectly or surreptitiously won by organised labour or, on the other hand, to hold the dyke against further inroads into the “managerial prerogatives” of employers.


Endnotes

1. The epithet “employer” begs the question as to the nature of the relationship between that person and her/his worker. It is hard however to find a convenient term which embraces all persons who purchase the labour of another. I have therefore resorted to the stratagem of using the legally- charged word employer but placing it in quotation marks to indicate that the person or class in question had not, at that stage, acquired the legal status of employers today.

2. Great Britain — 20 Geo II cl9 1747; 6 Geo III c25 1765; 4 Geo IV c34 1823; NSW — 9 Geo IV No 9 1828; 4 Vic No 23 1840; 9 Vic No 27 1845; 20 Vic No 28 1857; Act No 59 of 1902; Qld — 25 Vic No 11 1861; 9 Geo V No 19; Vic — 27 Vic No 198 1864; 54 Vic No 1087 1890; 55 Vic No 1219 1891; 6 Geo V No 2646 1915; 19 Geo V No 3673 1928; Act No 6242 of 1958; S.A. — 10 & 11 Vic No 9 1847; 12 & 13 Vic No 5 1849; 15 & 16 Vic No 6 1852; 26 & 27 Vic No 7 1863; Act No 83 of 1877; Act No 112 of 1878; Tas — 4 Vic No 12 1840; 16 Vic No 23 1852; 18 Vic No 8 1854; 19 Vic No 28 1856; 46 Vic No 18 1882; 48 Vic No 36 1884; 51 Vic No 3 1887; W.A. — 32 Vic No 8 1868; 46 Vic No 11 1882; 50 Vic No 20 1886; 51 Vic No 1 1888; 55 Vic No 25 1892; 55 Vic No 28 1892.

3. For a closer-to-contemporary comment on the social implications of the linguistic philosophy of workers as “hands” see Dickens.

4. Eg Performing Right Society Ltd v Mitchell and Booker {Palais de Danse) Ltd [1924] 1 K.B. 762 which cites as authorities in the identification of the employment contract: Sadler v Henlock (1855) 4 E & B 570; Blake v Woolf [1898] 2 QB 426; Milligan v Wedge (1840) 12 Ad & E 737; Rapson v Cubitt (1842) 9 M & W 710; EC. T. v Barrett (1973) 129 CLR 395 citing Sadler v Henlock; Simmons

84 Australian Journal of Law & Society Vol. 1 No. 7, 1982v Heath Laundry Company [1910] 1 KB 543 citing Sadler v Henlock; Williams v H. V. Larsen Ltd [1928] 21 B.W.C.C.339 citing Sadler v Henlock.

5. See for example the description of pin making in Smith, 1889; 3: cf Braverman 1974.6. Eg Smith 1975: 342, relying on Wedderburn 1971:76, mentions 17,100 prosecutions and 10,400

convictions in 1872, and on that basis concludes that “Labour was therefore regulated to a degree, principally for the benefit of the master . . .”.

7. Though it is generally accepted that the Commission’s awards take on the character of laws, I would argue that the legal basis for such an interpretation is dubious. The intricacies of the argument and counter-argument are, however, beyond the scope of an endnote.

8. Clyde Engineering Co Ltd v Cowburn, (1926) 37 CLR 466. Lawyers in Australia came to ignore the Acts because of an (unaccountable) belief that the legislation had been invalidated by the High Court decision in Ex parte McLean (1930) 43 CLR 472. The effect of this case has been widely misunderstood by writers and practitioners: eg Macken et al, 1978: 209: “it was argued by the High Court that the state Act (ie the 1902 Masters and Servants Act) was invalid under s 109 of the Constitution being inconsistent” [emphasis mine]. In fact, the decision was that the Act was invalid (or on more recent interpretation of s 109 — merely “inoperative”) only pro tanto — that is, to the extent of the inconsistency. In other words, it was inoperative in relation to parties to those Commonwealth awards which dealt with matters previously covered by provisions of the Masters and Servants Act. This meant that while McLean’s case made important restrictions to the field of the Act’s operation, the decision left a considerable range of employment situations still within the ambit of the Masters and Servants Acts, as witnessed by the 32,000 subsequent cases in New South Wales alone:- NSW Judicial Statistics 1930-1963.

9. New South Wales, Statistical Register, 1837-59 and annual volumes from 1860. Throughout the 1950s, there were approximately two thousand Masters and Servants Act cases each year. In 1958, there were 1998, in 1959 none, in 1960 and 1961 two cases, in 1962 one case and in 1963 two cases. From 1964, the Act was not separately covered in the statistical tables. I have not yet been able to find the reason for the dramatic drop in the number of cases after 1958. Since Masters and Servants Act proceedings were brought by individuals, the explanation cannot lie in government policy. It would appear that alterations to other legislation (as yet unidentified) made the Act’s procedures less advantageous to complainants, who by that time were almost exclusively employees.

10. Identification of cases as employer- or employee- initiated can only be made from the Petty Sessions records themselves — the published statistics do not divide the cases in such a way as to allow positive identification of the status of the initiating party. The distribution of cases in the surviving court records from 1845-1949 (from which date access to the material was restricted by the “30-year rule”) is as follows:- Employer-initiated Cases: 2,718 Employee-initiated Cases: 4,783For a more comprehensive breakdown of these figures according to time and court district, see Merritt 1981: 207-213B.

11.9 Geo IV No 9, 1828, s 1; 4 Vic No 23, 1840, s 2; 9 Vic No 27, 1845, s 2; An Act to regulate the Law between Masters and Servants, 20 Vic No 28, 1857, s 2; An Act to Consolidate the Enactments relating to Masters and Servants, Act No 59 of 1902, s 4.

12. 9 Geo IV No 9, 1828, s 3; 4 Vic No 23 1840, s 7; 9 Vic No 27 1845, s 4; Act No 59 of 1902, s 6.13. 4 Vic No 23 1840, s 3; 9 Vic No 27, 1845, s 5; 20 Vic No 28 1857, s 5; Act No 59 of 1902, s 7.14. 9 Geo IV No 9, 1828, s 4; 9 Vic No 27, 1845, ss 9 and 11.15. 20 Vic No 28, 1857, s 8; Act No 59 of 1902, s 10.16. The 1857 Act made a significant change in the provisions relating to destruction or loss of property.

For it altered the second part of the formula to refer only to wilful loss, so that the section dealt only with any servant who “shall wilfully abandon lose or injure any cattle or any other property” (“cattle” being defined to include sheep, horses, goats and swine). This change thus removed from the field of operation of the Act the great majority of cases which the section had previously dealt with. The absence of a report of the deliberations of the 1857 Committee is a great frustration here, for it might have illuminated the mystery of why this change was made. Did the consciences of the legislators prompt them to remove a provision whose effect was oppressive, or did the pocketbooks of employers prompt them to dispense with a provision that was no longer necessary? The history of the Acts and their operation does little to diminish the temptation to cynicism.

17. The number of claims for wages (or rations) dismissed was 755. The number of charges by “employers” against workers dismissed was 135.

18. New South Wales Statistical Register 1837-59. Table 63. Rates of Wages. The average annual wage of a shepherd was calculated on the basis of one flock, usually of 1,500-3,000 sheep. Where a shepherd was given two flocks (as often happened), the wage was doubled. The average wage for one flock in the 1850’s was 30 - 35.


19. Reports of cases brought under the arbitral provision do not appear in the records. The surviving Bench Books and Charge and Summons Books contain only one reference to such a proceeding. Since it is most difficult to believe that no other such case was ever heard, one strongly suspects that these cases were either recorded separately in Books which have not survived, or were not recorded at all.

20. For example, British legislation on dismissal, reinstatement and redundancy, Australian legislation on reinstatement — see Conciliation and Arbitration Act (Cth), s 5; Industrial Arbitration Act (NSW) ss 20A, 95.

21. Though the Australian colonies had by 1890 struggled through ten decades of existence, in the first four of these the workforce was controlled by the penal system designed for its predominantly convict composition. The real “bite” of masters and servants legislation on employment came with the 1840 and 1845 Acts as the balance shifted to “free” labour.

References

Braverman, Labour & Monopoly Capital (1974) Monthly Review Press, New York.Brooks, Principles of Australian Employment Law (1979) CCH, Sydney.Butlin, Investment in Australian Economic Development 1861-1900 (1964) Cambridge University Press, London.Cane, “Ollera”, Armidale and District Historical Society (1961) 2 Journal and Proceedings. No 1. Cashen, “Masters and Servants in Early South Australia” (1980) The Push from the Bush — A Bulletin of Social History No 6, 22-23.Clark, “Industrial Law and the Labour-Only Sub-Contract” (1967) 30 Modern Law Review, 6-24. Coghlan, Labour and Industry in Australia Vol. 1. (1918) Oxford University Press, London.Crowley, “Working Class Conditions in Australia 1788 - 1851”. Unpublished Ph.D. thesis (1949) University of Melbourne.Crowley, “Master and Servant in Western Australia 1829 - 1851” (1953) 4 Journal and Proceedings of the Western Australian Historical Society 94.Davies & Freedland, Labour Law: Text and Materials (1979) Weidenfeld & Nicolson, London. Davidson, “A Skeleton in the Cupboard; Master and Servant Legislation and the Industrial Torts in Tasmania” (1975-77) 5 University of Tasmania Law Review 123.Fox, Beyond Contract: Work, Power and Trust Relations (1974) Faber, London.Fry, “The Conditions of the Urban Wage Earning Class in Australia in the 1880s” (1956) Unpublished Ph.D. thesis, Australian National University.Greenwood (ed), Australia: A Social and Political History (1967) Angus & Robertson, Sydney.Guest (ed) Anson’s Law of Contract, 25th ed (1975), Clarendon Press, Oxford.Macken et al, The Common Law of Employment, (1978) Law Book Co., Sydney.McGregor, McGregor on Damages (14th ed) (1980) Sweet & Maxwell, London.Meagher et al, Equity: Doctrines and Remedies (1975) Butterworths, Sydney.Merritt, “The Nature and Function of Law: A Criticism of E. P. Thompson’s Whigs and Hunters” (1980) 7 British Journal of Law and Society, 194-221.Merritt, “The Development and Application of Masters and Servants Legislation in New South Wales — 1845 to 1930” (1981) Unpublished Ph.D., thesis, Australian National University.Merritt, “‘Control’ v ‘Economic Reality’: Defining the Contract of Employment” (1982) 10 Australian Business Law Review 105.New South Wales, Legislative Council, Select Committee to inquire into and report on an Act of the Governor and Council (4 Vic No 23) entitled “An Act to ensure the fulfilment of engagements, and to provide for the adjustment of disputes between New South Wales and its dependencies” Report, in New South Wales, Legislative Council, Votes and Proceedings (1845).New South Wales Statistical Register. 1837-59 and Annual Volumes from 1860.New South Wales Statistical Register. Judicial Statistics 1930-1963.Ogus , The Law of Damages (1973) Butterworths, London.Rayner, “Master and Servant in the New Norfolk Magistrates’ Court” (1980) The Push from the Bush — A Bulletin of Social History No 6, 34.Simon in Saville (ed), Democracy and the Labour Movement (1954) London.Smith, A. An Inquiry into the Nature & Causes of the Wealth of Nations (1889) Edinburgh.Smith, I. T. “Is Employment Properly Analysed in Terms of a Contract?” (1975) 6 New Zealand Universities Law Review 341.

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Spry, Equitable Remedies: Injunctions and Specific Performance (2nd ed), Law Book Co, Sydney. Sullivan, “Master and Servant in New South Wales before 1850” (1979) The Push from the Bush — A Bulletin of Social History No 3, 44.Turner, “Newcastle Miners and the Master and Servants Act, 1830 - 1862” (1969) 16 Labour History 30. Ward, Australian Legend (1958) Oxford University Press, Melbourne.Wedderburn, The Worker and the Law (2nd ed) (1971) Penguin, Harmondsworth.

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