Who Owns Human Capital? A Critical Appraisal of Legal Techniques for Capturing the Value of Work

By Joellen Riley

Our laws which privilege property owners have created expectations that employers of workers become the owners of intellectual capital produced by labour.

Presumptions in 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 word of work has changed. Riley argues that in the de-regulated, flexible workplaces encouraged by the Workplace Relations Act 1996 (soon to expand), workers bargain not for job security, but for employability, ie, the opportunity to acquire skills, experiences and contacts which will enhance prospects for continued employment market participation. If this bargain is to by upheld in law, we need to re-examine legal attitudes to the ownership of human capital.

(Australian Journal of Labour Law; vol. 18, no 1, April 2005)