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John O. Haley

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John O. Haley

As cross-border transactions expand in our contemporary global economy, the significance of comparative contract law is evermore apparent. In addition the role of lawyers in transactional counselling as well as dispute resolution has become increasingly prominent. Appreciation of the principal similarities and differences between the two major subdivisions of Common Law (the United States and the British Commonwealth) and Civil Law (French versus German law) has thus become imperative. This Research Review endeavours to facilitate such appreciation and will prove an essential reference point for students, researchers and policymakers.
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John O. Haley

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John O. Haley

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Gordon Anderson, Douglas Brodie and Joellen Riley

This chapter considers the challenges faced by the courts and legislatures in an era where modes of employment and the economic and legal distance between workers and the beneficiaries of that work are changing at an accelerating rate. The labour market has witnessed a large growth in the number of agency workers and the ranks of the self-employed as well as arrangements such as franchises. The extent to which workers are genuinely providing their services through a vehicle other than employment is open to question especially when terms and conditions are inferior to those available to employees. The challenge of how to deal with this question poses ongoing problems for the courts. Keywords comparative employment law, employee, contract of employment, independent contracts, ‘gig’ economy, sham contracts

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Gordon Anderson, Douglas Brodie and Joellen Riley

The contract of employment provides in many jurisdictions the legal foundation for the employment of workers. This book examines how the development of the common law under the influence of contemporary social and economic pressures has caused this contract to evolve.
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Common law remedies

A Comparative Study

Gordon Anderson, Douglas Brodie and Joellen Riley

This chapter considers common law remedies available to an employee. While the law provides that where a party sustains a loss by reason of a breach of contract they are, so far as money can do it, to be placed in the same situation, with respect to damages, as if the contract had been performed, in fact the employee’s position in terms of damages is grossly unsatisfactory. Addis v Gramophone continues to constitute a barrier; and the measure of damages where wrongful dismissal is concerned fails to recognize the full extent of the employee’s interest in the employment relationship. The position in respect of equitable orders also leaves a great deal to be desired despite the fact that the courts now recognize that the employee’s interest in employment relations should not be seen as purely pecuniary. Keywords comparative employment law, contract of employment, remedies, damages, Addis v Gramophone

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Conclusions

A Comparative Study

Gordon Anderson, Douglas Brodie and Joellen Riley

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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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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