The development and application of Masters and Servants legislation in New South Wales - 1845 to 1930

Abstract

Masters and Servants legislation was received into New South Wales at settlement in 1788. Subsequently the New South Wales legislature passed its own Masters and Servants Acts in 1828, 1840, 1845, 1847, 1857 and 1902. Though Petty Sessions reports are incomplete, there are 8199 surviving records of Masters and Servants Act cases, and the total number of cases between 1845 and 1930 amounted to (a possible) 160,000. The majority of these cases were brought by employees against employers. Through Masters and Servants Act litigation, both employers and employees sought to apply to their employment relationships their own opposing interpretations of the common law relating to the contract of employment. Employers contended for a diffuse contract, relying heavily on the hierarchical nature of the implied terms. Employees argued for a specific contract, confined within the bounds of specific and expressly-agreed terms. Although the Acts provided for redress for concrete breaches of contract, the evidence shows that litigation arose more out of inherent tensions within the employment relationship, centering around the employer's assertion of a right to manage and the employee's attempt to achieve a right to job control. The procedures of the Acts were used by the parties as a means of industrial bargaining. The cases uncover a considerable degree of unorganised, individual and spontaneous militancy in the workforce; and even when the development of strong trade unions and systems of compulsory arbitration provided other means of bargaining, employees still resorted to the Masters and Servants Acts when that tactic was more appropriate to the needs of particular industrial situations. Show more