It is a basic shibboleth of Marxist thought that the law is structurally biased in the interests of capital over labour. Whether this is expressed through the language of base and superstructure, form determination or internal relations, an account of law as ultimately serving the interests of the ruling classes of specific social formations constitutes one of historical materialism’s distinct contributions to legal analysis. However, all too often this role of law has been asserted rather than demonstrated. Marx and Engels’ (Reference Marx and Engels2002) formulation of the state as the ‘executive committee’ of the bourgeoisie, whilst central to an historical materialist analysis, nevertheless risks occluding the complexities of the legal form and the deeply contradictory way it is pressed into the service of both capital and labour. I have often regarded law as something of a ‘black box’ for much progressive political economic work; whilst a broad observation of law’s functionality for capital is made, the actual internal processes by which the law exercises this function, and the role of the judiciary in executing it, are often out of view.
Eugene Schofield-Georgeson’s Contract, Labour Law and the Realities of Working Life is a timely peek inside the black box of the Australian labour law system. He begins by stating the proximate political problem: ‘[w]hereas labour law was designed to protect and advance the interests of working people, superior courts in Australia have, since the 1990s, returned to formalist legal reasoning to redefine employment relations in the interests of employers and their common law contracts’ (Schofield-Georgeson 2025, 1). Schofield-Georgeson is thus focused on the problem of Australian neoliberalism. The history of neoliberalism is of course generally well-understood (if sometimes subject to intense scholarly debate). However, less understood is the nature of this neoliberalism as a legal phenomenon. Schofield-Georgeson draws upon the work of Unger and the scholars of ‘neoliberal legality’ he influenced to put in hand the essentials of a neoliberal legal order, which synthesises, amongst other things, a juridification of social relationships, the centrality of contract as a means of repatterning those relationships, a synergy between neoliberal economic theory and law, and an opportunistic legal indeterminacy that can justify most outcomes.
With this understanding in hand, Schofield-Georgeson pins his colours to the mast – the regulation of work relationships in Australia since the 1990s has been invested by this neoliberal legality, and the prime mover has been none other than the High Court of Australia, the supreme judicial body in the fabric of the Australian state. The form neoliberal legality takes through this vehicle is a combination of ‘retroformalism’ (that is, the refashioning of classical liberal doctrines to augment the power of capital over labour), an assertion of antiquated common law concepts (even in the context of extant statutory schemes) and plastic legal reasoning that assumes whatever form is most conducive to employers.
Schofield-Georgeson demonstrates this process of legal evolution at work in tracing five distinct domains of labour regulation. Chapter 2 tackles the first of these domains, namely the distinction between employees (contracts of service) and independent contractors (contracts for service). In this context, he discusses a trinity of critical High Court decisions which represented the victory of a new formalist approach to the determination of employment status. The Personnel Contracting, Jamsek and Rossato cases saw the High Court turn its back on an established approach to assessing employment status that looked at both the terms of the contract establishing the relationship and the material way that relationship had played out (often focusing on elements of control, a capacity to delegate work, whether or not job-specific equipment is provided or must be paid for by the worker etc.). In its place, the majorities in these cases maintained that ‘the courts must only consider the written terms of the contract to assess the nature of the working relationship. Courts must not appraise the reality of that relationship, revealed by the way the parties conduct their contractual obligations’ (Schofield-Georgeson 2025, 35). This new ‘rights and duties’ approach to determining employment status essentially takes the contract at its word – if, for example, the contract apportions rights and duties in a way commensurate with an independent contractor-type relationship, then the relationship is so deemed, even if in reality the worker exercises the rights and duties of an employee. Schofield-Georgeson powerfully captures how this retroformalist application of nineteenth-century understandings of the paramountcy of written contracts has had a profound influence on the field of labour regulation. Most significantly, it has reduced the scope of labour law seen as a field of legal regulation hived off from commercial contract law. Through written sophistry, employers became capable of transforming employees into independent contractors and thus subject to the far more capital-friendly domain of mainstream contract law. Moreover, the trinity of High Court decisions has had a chilling effect on the Fair Work Commission, which is tasked with administering the Fair Work Act that applies to employees. Despite the existence of legislative provisions that seemingly allow the Commission to take a different tack to the High Court, the former has generally deferred to the latter’s rights and duties approach, even if that grates against its statutory objectives. It is worth noting that at the time of writing this review, but after the publication of the book, the Albanese Labour government has passed a further tranche of the Closing the Loopholes legislation to amend the Fair Work Act. Amongst other things, this has now statutorily codified an employment test based on the old multiple-indicia test (an event Schofield-Georgeson foresees in the conclusion of the book). Nevertheless, the central point still stands – at common law, the High Court has effected a revolution in the designation of employment status that redounds to the benefit of capital.
Chapter 3 deals with Schofield-Georgeson’s second domain of labour regulation, namely the nature of implied terms in an employment contract. These are terms with a considerable provenance in the common law, read into employment contracts as ‘gap-fillers’ in the absence of express contractual terms’ (Schofield-Georgeson 2025, 55). Schofield-Georgeon notes how ‘[m]ost implied terms operate in respect to employees. They establish duties owed by employees to their employer such as skill and competence, obedience to lawful and reasonable orders and faithful service’ (Schofield-Georgeson 2025, 55). Whilst the few implied terms that bound employers (such as duties to pay wages and to care and safety) are now largely crystallised in statute, superior courts in the UK, USA, Canada, and New Zealand have come to recognise an implied term of mutual trust and confidence between the parties to the employment relationship. In the words of Lord Nicholls, one of the judges who heard the landmark Malik case in the UK, such a duty prevents employers from mistreating employees by ‘harsh and oppressive behaviour or by any other form of conduct which is unacceptable today as falling below the standards set by the implied trust and confidence term’ (Schofield-Georgeson 2025, 70). As Schofield-Georgeson argues, courts holding that this term exists, have subscribed to a heterodox perspective that recognises, and seeks to ameliorate, the reality of inequality between labour and capital. However, when given the opportunity to find the existence of this implied term in Australian jurisprudence in the case of Barker, the High Court quite deliberately cut it off at the root, based in part on a spurious distinction between Australian and English political and legal conditions (Justice Gaegler made the incredible statement that Thatcherism had ‘no analogue in Australia’!) and an obscure and highly subjective ‘necessity’ test. Once again, Schofield-Georgeson demonstrates the strengthening of neoliberal legality, noting that ‘the absence of mutual trust and confidence from Australian employment law has been used by superior courts to deny a number of significant claims with widespread application to workers across the workforce…’ (Schofield-Georgeson 2025, 75-76).
Chapter 4 delves into the adverse actions built into the Fair Work Act, designed, amongst other things, to protect trade unionists from victimisation and/or dismissal on the basis of union membership. From early in the twentieth century, a crucial feature of similar provisions in preceding labour law statutes has been a ‘reverse onus of proof,’ which ‘means that once a complaint has been lodged, a defendant-employer must provide reasons justifying their discriminatory conduct or else a finding of adverse action will follow’ (Schofield-Georgeson 2025, 81). The High Court, historically, had sought to minimise the effect of this reverse-onus on employers by focusing on the employer’s subjective intention in taking an action, rather than a combination subjective-objective test that would have required an assessment of the reasonableness of the employer’s conduct in the material circumstances of the case. In 2011, the Full Bench of the Federal Court attempted to resuscitate a version of this latter approach in the case of Barclay. What Schofield-Georgeson describes as this court’s social-democratic alternative to the traditional test was, however, quickly quashed by the High Court. Mirroring their treatment of progressive Federal Court decisions relating to the determination of employment status, the High Court reinstated liberal formalist orthodoxy through its ‘substantial and operative reason’ test. Seemingly in defiance of s 360 of the Fair Work Act, which stipulates that adverse action can be taken if the prescribed reason is one of a number of reasons, the High Court returned to a test that focussed upon the subjective mindset of the employer (akin in this regard to the test of subjective intent in criminal law). Schofield-Georgeson goes on to show how this test essentially encourages employers to cover their ulterior motive with a seemingly genuine one; so long as a subjective intention to not take adverse action is manifested (seen in the breach through the revealing intra-company communications in the Qantas case), it will be extremely difficult for applicants to demonstrate that such action was indeed taken. Schofield-Georgeson convincingly argues that this is yet another example of neoliberal legality, focusing in particular on the High Court’s incoherent and selective application of legal principles to benefit capital. Indeed, he notes that ‘[i]f neoliberalism squarely involves state intervention to effect the upward redistribution of power and resources, there is no clearer example of judicial neoliberalism than the reintroduction of this test’ (Schofield-Georgeson 2025, 87).
Chapter 5 explores the ambit and content of the enterprise bargaining system as it stands today. After adumbrating different potential models of enterprise bargaining, Schofield-Georgeson argues that the current system is a hodge-podge collection of the worst elements of each. From the old system of voluntary bargaining at the turn of the twentieth century, the High Court has retained and reapplied common law contractual doctrines; from the system of state-sponsored compulsory bargaining under the aegis of the arbitration system is derived a profound state control over the permissible terms of agreements, which must involve ‘matters pertaining’ to the employment relationship; and from a collective laissez-faire approach (the ideal-type closest to the current arrangements), it integrates an unwillingness of the state to intervene in disputes between parties with profound asymmetries in power. Schofield-Georgeson draws these threads together through an analysis of the landmark Electrolux case, where the High Court ruled it illegitimate to include in enterprise agreements ‘bargaining fees’ for non-union members who benefitted from a union-negotiated deal. This decision simultaneously undermined the capacity of parties to freely bargain about matters of importance to them, degraded the statutory scheme and strongly recast unions in the neoliberal language of ‘agency representation’.
The final domain Schofield-Georgeson investigates in Chapter 6 is the contemporary right to strike in Australia. From being formerly prohibited under the old conciliation and arbitration scheme, the movement to enterprise bargaining in the early 1990s saw industrial action become ‘protected’ from civil liability in the context of a bargaining period. In order to become protected, however, a range of highly prescriptive criteria, both procedural and substantive, had to be respected. Whilst the system generally has operated to curtail industrial action, the 2017 Esso case saw the High Court greatly trammel this right even further. Problematically conceiving of protected industrial action as a ‘privilege’ rather than a right, the Court rendered an extremely technical interpretation of Fair Work Act strike provisions that sees even minor infractions of orders strip any subsequent strike action of its protected status (whether the infraction was intended or not). Moreover, apparent ambiguity in the proposed list of industrial actions in the Esso case was resolved firmly in favour of the employer, another example of judicial opportunism when competing understandings of capital and labour clash.
Having demonstrated beyond doubt that a neoliberal legality now has a firm hold on the Australian labour law system, Schofield-Georgeson asks what can be done in the final chapter of the book. Amongst the more important reforms he identifies are the need to return to industry-wide bargaining; a codification of ‘fair dealing’ on the part of employment providers to institutionalise, and expand upon, the defunct implied duty of mutual trust and confidence; legislative change mandating a subjective-objective test for adverse action claims; scrapping of the ‘matters pertaining’ requirement for the content of enterprise agreements; stronger rights to strike, partly secured through a new, much broader, definition of ‘protected action’; more democratic selection of High Court judges and tribunal members; and probably most significantly, much stronger rights for unions to organise, either narrowly, through the capacity to exact bargaining fees, or more broadly, such as by imposing default union membership. Schofield-Georgeson concludes by noting that these proposals can help labour law return to its historic mission:
‘It is only through recognising the living, breathing reality of work and the procedures involved in rendering it fair that the law can give voice to industrial democracy. Anything less is an artificial or legal construction of work that, as we have seen, may be all too easily manipulated in the service of those who command the power of material resources, legal representation and superior status in the employment relationship’ (Schofield-Georgeson 2025, 167).
To return to the problematic I set out at the beginning of this review, Schofield-Georgeson has illuminated the black box wherein occurs the articulation of the law and the interests of capitalists. Through an exhaustive analysis of the texts of High Court decisions, legislative provisions and the general history of labour regulation in Australia, he sketches for the reader the structure of neoliberal legality in Australia and how it bears on the regulation of work relationships. Importantly, this is explained not as a process of passive judicial reflection, but one of constitution; the forms of contractualisation, juridification, and the private–public distinction that characterise neoliberal legality are prime means by which the upward redistribution of income through state action (which is the essence of the neoliberal project) is effected.
Key to Schofield-Georgeson’s ability to conceptualise this process is the trenchant distinction he establishes between ‘reality’ and juridic fictions. By the former, he means the ‘economic and social conditions arising in workplaces and the labour market’ (Schofield-Georgeson 2025, 7), that is, the material experience of employment in a capitalist economy. By contrast, juridic fictions are intrinsically abstractive notions that constitute legal subjects as something other than they are in the realm of reality, e.g. the construction of the employment contract as between two autonomous, equal and self-interested agents, rather than between two structurally distinct parties with radically different capacities. Throughout the book, Schofield-Georgeson shows how time and again the High Court favours abstract, lifeless juridic fictions over the reality of work. Indeed, this was particularly powerfully demonstrated in the case of the trio of High Court decisions that radically remade the common law test of employment. I did have some minor philosophical quibbles about this distinction between reality and juridic fictions. Certainly, it is hard to deny that a contract looks real enough to a worker when it is put before them to sign. Moreover, recourse to some of the classic Marxist work on ideology, particularly Althusser (Reference Althusser2014), would have both sharpened and complexified the relationship between the two terms of this dichotomy. As ideology, juridic fictions can be conceived as imaginary relationships that express how the relationships of reality are lived; the fictions are thus both false and necessary at the same time. Indeed, it is hard to conceive how capitalism could function if its legal institutions legitimately recognised the reality of exploitation. However, these quibbles do not detract from the essential fecundity of Schofield-Georgeson’s distinction – when faced with a choice between recognising the imperatives of the real world workers toil and struggle in, and a world of abstract juridic pantomime, the neoliberal High Court has opted for the latter.
Another great virtue of the book is that it pitches itself at a range of social scales. Tracing neoliberal legality is, in Schofield-Georgeson’s hands, a systemic approach. On the one hand, this means a real sensitivity to the fine-grained and subtle distinctions between juridical categories and in the art of statutory interpretation. Schofield-Georgeson, following the High Court’s reasoning across his five domains of labour regulation, delves into the technical minutiae around matters as varied as employees vs independent contractors, the distinction between subjective and objective legal tests, the interpretation of protected action provisions in the Fair Work Act, and the judicial history of various legal doctrines. He handles these very technical subjects with a commonsense touch that makes it comprehensible to the lay reader (and given levity by some witty and delightfully acerbic asides).
On the other hand, however, Schofield-Georgeson telescopes his conceptual understanding of neoliberal legality outwards to a point where many labour law researchers baulk; that is, he explicitly frames this legality as operating in the great struggle between labour and capital. I find that much of the more staid labour law scholarship tends to become too bound up with the categories that it deals in. Yes, there are employees (full-time, part-time and casual), contractors (independent and dependent), businesses (registered and unregistered), and corporations. However, to become too wedded to these gradations (often artificial, as Schofield-Georgeson maintains) is to ignore the great structural separation between labour and capital, and risks ignoring the molten political-economic mantle that continually shifts the crust of these juridic categories. Schofield-Georgeson thus does an admirable job of synergising the micro and the macro scales to paint a compelling picture of neoliberal legality.
Aside from my earlier philosophic quibble, there is only one real shortcoming worth mentioning. At times I felt that Schofield-Georgeson played a bit fast-and-loose with a couple of definitions that were quite significant to his analysis, namely ‘social democracy’ and ‘industrial democracy’. A solid, consistent definition of either is not really advanced. This had the dual effect of sometimes applying a label to a phenomenon I did not think deserved it, e.g. describing various courts as producing ‘social-democratic decisions’, and also buttressing some historically questionable claims. For instance, there is a certain level of romance attached to the old Australian conciliation and arbitration system, which is at various points equated with a system of industrial democracy, a proposition many researchers would question or outright deny.
Nevertheless, Contract, Labour Law and the Realities of Working Life is a ground-breaking work that deserves to become a leading text in its field. Schofield-Georgeson has demonstrated beyond doubt that the High Court of Australia has actively constituted and reproduced a neoliberal legality that has crippled the power of the working class. The text leaves one feeling that the surest bastion of ruling-class paramountcy in Australia is the High Court, and to expect it to change of its own accord is fantastical. Although statutory change is not a panacea for all of neoliberalism’s ills, Schofield-Georgeson shows the first step to challenging Australian neoliberal legality is to directly politicise that reality which the High Court has so studiously ignored and buried beneath abstract juridic fictions. In an era where the political conditions for change are better than they have been for some time, Contract, Labour Law and the Realities of Working Life is necessary reading.
