Who Owns Human Capital? A critical appraisal of Legal Techniques for Capturing the Value of Work

Australian Journal of Labour Law, Vol. 18, pp. 1-25, 2005

25 Pages Posted: 10 Jun 2005  

Joellen Riley

University of Sydney - Faculty of Law

Abstract

Our laws - particularly the doctrines developed in the equitable jurisdiction - which privilege property owners have created expectations that employers of workers become the owners of the intellectual capital produced by labour. Presumptions in our intellectual property laws, and the post-contractual extension of the employee's duty of good faith and fidelity have strengthened employers' capacity to retain human capital within the firm. At times of womb-to-tomb employment patterns, such laws may have been defensible. But the world has changed. This paper argues that in the deregulated, flexible workplaces encouraged by the Workplace Relations reforms, workers bargain not for job security, but for employability, i.e., the opportunity to acquire skills, experience and contacts which will enhance prospects for continued employment market participation. If this bargain is to be upheld by law, we need to reexamine legal attitudes to the ownership of human capital.

JEL Classification: K31

Suggested Citation

Riley, Joellen, Who Owns Human Capital? A critical appraisal of Legal Techniques for Capturing the Value of Work. Australian Journal of Labour Law, Vol. 18, pp. 1-25, 2005. Available at SSRN: https://ssrn.com/abstract=740024

Joellen Riley (Contact Author)

University of Sydney - Faculty of Law ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia
+61 2 9351 0205 (Phone)
+61 2 9351 0200 (Fax)

Paper statistics

Downloads
300
Rank
80,505
Abstract Views
1,766