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The work/personal interface

A Comparative Study

Gordon Anderson, Douglas Brodie and Joellen Riley

The employee’s ability to maintain an autonomous private life alongside employment has long been contested territory in employment law. The rights to paid and unpaid leave to attend to illness and emergencies, and to undertake caring responsibilities and recreation, are the fruits of earlier industrial struggles; and where these rights appear in employment contracts, it is generally as a consequence of the influence of mandatory provisions in statutes or statutory instruments. Claims that employers must also accommodate an employee’s freedom of expression have also been contentious. This chapter considers the interplay of common law and statutory influences in establishing contemporary boundaries between work and personal life. Keywords comparative employment law, contract of employment, work and personal life, freedom of employee expression

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Statutory and incorporated terms

A Comparative Study

Gordon Anderson, Douglas Brodie and Joellen Riley

This chapter considers the extent to which provisions arising from a range of sources have influenced employment contract terms. This includes terms and conditions that have been established through processes of collective bargaining and also codes of conduct and ‘human resources’ policies that commonly govern employment practices in large enterprises in order to manage compliance with statutory obligations, for instance obligations to provide procedural fairness in disciplinary proceedings. A contemporary challenge for employment law is managing an expectation of ‘coherence’ between the demands of statutory regulation and the principles of common law. Keywords comparative employment law, employee, contract of employment, terms and conditions, law and human resources,

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Security in employment

A Comparative Study

Gordon Anderson, Douglas Brodie and Joellen Riley

This chapter considers the extent to which employees in the three countries enjoy security in their employment and, in particular, protection against unjustified dismissal. Prior to unfair dismissal legislation, employees were subject to arbitrary dismissal at any time. The introduction of unfair dismissal legislation was an important turning point in the balance between the common law and statute, and between employers and employees allowing the courts to intervene in an employer’s management of its employees. This chapter identifies the key legislative characteristics of unfair dismissal protection in each jurisdiction, evaluates the extent to which the common law approach to dismissal influences the statutory regimes and examines the current relationship between the common law and the statutory schemes. Keywords comparative employment law, contract of employment, unfair dismissal, employment security

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Introduction

A Comparative Study

Gordon Anderson, Douglas Brodie and Joellen Riley

The introduction takes up David Marsden’s argument that the rise of the modern business enterprise relies on two great innovations: limited liability and the contract of employment. It outlines the authors’ objective to analyse the character of the contract of employment in the United Kingdom, Australia and New Zealand and to examine the interrelationship between the contract of employment and the political, economic and social dynamics that have shaped the employment environment in each jurisdiction. Keywords comparative employment law, contract of employment

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Gordon Anderson, Douglas Brodie and Joellen Riley

This chapter explores the interrelationship of the implied terms of fidelity and mutual trust and confidence and related obligations. A characteristic of employment law is the role played by the common law implied terms in all contracts of employment, most significantly the undefined and open-ended implied obligation of fidelity, that restrain an employee’s autonomy by requiring them to subordinate many of their own interests to those of their employer. Until recently, an employer did not owe any reciprocal duty; but the development of the implied term of mutual trust and confidence and, more recently, the potential development of good faith obligations in the general law of contract generally have slowly changed that picture. Elements of commonality exist which may help to identify emerging core values of the employment contract, as norms of good faith and fair dealing become more significant in the law of contract as a whole. Keywords comparative employment law, contract of employment, mutual trust and confidence, good faith

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Gordon Anderson, Douglas Brodie and Joellen Riley

This chapter considers the risk to the employee that the employer will abuse their superior bargaining power to dictate terms, or manage the employment relationship, in a way that imposes an undue or oppressive burden on the employee. Employees accepting indefinite engagement in an enterprise often commit to the development of their own ‘human capital’ – their knowledge, skills and relationships – in the best interests of the employer’s enterprise. The chapter explores the techniques by which the common law of employment has mitigated the risk of unfair bargains, and of capricious and arbitrary exercise of the employer’s powers of management focussing principally on the development of principles of contract interpretation and construction that favour restraint on the capricious exercise of discretion. Keywords comparative employment law, contract of employment, allocation of risk, unfair contractual terms

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Employee mobility

A Comparative Study

Gordon Anderson, Douglas Brodie and Joellen Riley

This chapter considers the vexed question of limits on an employee’s mobility, both the right to change employment and to utilize their accrued human capital. Post-boomer generations do not expect to stay in a job forever, nor do post-Thatcher employers expect to retain staff throughout a full career. Fixed term contracts have come to dominate employment practices in many fields, especially those in the so-called ‘knowledge economy’. Three aspects of the employment relationship are discussed: the ownership of valuable intangible property created by employees; the scope for employers to seek protection from competition from their employees during the employment relationship in a world of ‘portfolio’ careers; and employer strategies to protect themselves from competition after the termination of the employment relationship. Keywords comparative employment law, contract of employment, restraint of trade, intellectual property

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Gordon Anderson, Douglas Brodie and Joellen Riley

This chapter explains how and why the contract of employment achieved the pre-eminent position it occupies in modern employment law, including its role in delivering aspects of social justice such as a minimum floor of employment conditions. This development primarily involved the legal creation of that ubiquitous concept of modern labour law – the ‘employee’. Individuals can perform work through a wide variety of arrangements, but the consequence of doing so as an employee brings into play a largely unique set of legal rules defining the rights and obligations of that employment status. Keywords comparative employment law, employee, contract of employment, history, role and function

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Defining the employee

A Comparative Study

Gordon Anderson, Douglas Brodie and Joellen Riley

This chapter considers the manner in which the common law has been influenced by changing employment practices when determining whether or not a worker is employed under a contract of employment. It considers the evolving tests for determining whether a worker is an ‘employee’ and how, in developing these tests, the courts play a critical policymaking role as ‘gatekeepers’ in determining which workers enjoy access to the range of rights and obligations derived from statute. Keywords comparative employment law, contract of employment, indicia of employment

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Conclusions

A Comparative Study

Gordon Anderson, Douglas Brodie and Joellen Riley