Shaping Contracts for Work: The Normative Influence of Terms Implied by Law (Oxford Labour Law)

Shaping Contracts for Work provides an in-depth examination of the common law's role in shaping employment contracts through the mechanism of implied terms. It constructs a theory which views the nature of the employment contract as distinct from other types of work contract. Terms implied by law into employment contracts, as well as their potential to operate in other non-standard contracts for the performance of work, are critically examined by reference to the test that courts adopt when they are asked to imply such terms. In part one, Golding provides an overarching survey of the law which governs express and implied terms in contracts. In doing so, she considers the broader judicial role in implying terms and assesses how it can fundamentally alter the nature of the relationship between contracting parties. Part two draws comparisons between England and Australia, tracing the origins and status of select terms across both jurisdictions, and exploring how the application of these terms is often presumed. Golding also examines the duties of mutual trust, confidence, and good faith in both jurisdictions, investigating their potential application in employment contracts. In part three, Golding demonstrates why courts need to better articulate their understanding of what constitutes an 'employment contract' as a distinctive class of contract. By focussing on the impact of terms implied by law, this work adds a unique dimension to the debate concerning the regulation of waged work in the context of ever-increasing non-standard modes of work. Cover Series Shaping Contracts for Work Copyright Contents Table of Cases Table of Legislation List of Abbreviations Introduction: Shaping the Normative Core of Contracts for Work Advancing the Enquiry Outline of Argument and Structure Methodology Scope Rethinking the Rationale PART I. TERMS IMPLIED BY LAW INTOCONTRACTS GENERALLY 1. A Legal Overview Introduction Express Terms Implied Terms A. Terms Implied in Fact B. Terms Implied by Custom and Usage C. Terms Implied by Law The Fact/​Law Distinction Implication and Construction Conclusion 2. The Significance of Implying a Term by Law Introduction Emergence of a Powerful Judicial Technique Normative Rationalisation of Contractual Dealings Identifiable Legal Rules Wide Scope of Influence Conclusion PART II. TERMS IMPLIED BY LAW INTOCONTRACTS FOR WORK 3. Origins and Current Status Introduction Duties Owed by Employers A. Duty to Provide a Safe Place of Work B. Duty to Indemnify Employees for Expenses Innocently Incurred C. Duty to Inform Employees of their Rights Duties Owed by Employees A. Duty to Obey Lawful and Reasonable Instructions B. Duty of Fidelity C. Duty to Exercise Reasonable Care and Skill D. Duty to Hold Inventions on Trust E. Duty Not to Misuse or Disclose Confidential Information Mutual Duties Owed by Employers and Employees A. Duty of Cooperation B. Duty to Provide Reasonable Notice on Termination Conclusion 4. Mutual Trust and Confidence and Good Faith Introduction Mutual Trust and Confidence A. Evolution and Existence in England B. Rise and Fall in Australia: Commonwealth Bank v Barker C. Application Beyond Employment Good Faith A. Evolution and Existence in England B. Confusion as to Existence and Content in Australia C. Application Beyond Employment Conclusion PART III. TERMS IMPLIED BY LAW INTOEMPLOYMENT CONTRACTS 5. Employment as a Class of Contract Introduction General Distinctive Characteristics of Employment The Application of General Contract Law Principles The Employee/​Worker/​Independent Contractor Distinction The Operation of Particular Statutory Rules in Employment The Courts’ Imposition of Particular Duties in Employment The Inability to Exclude Particular Duties in Employment Employment as a Relational Contract Conclusion 6. Necessity Introduction Emergence of the Necessity Test in England Confusion in Applying the Necessity Test in England Confusion in Applying the Necessity Test in Australia Excludability and Absolute Necessity Conclusion 7. The Judicial Role Introduction Examining the Judicial Role A. Why Judges Should Engage in Judicial Law-​making B. Why Judges Should Avoid Judicial Law-​making Reinvigorating Coherence Conclusion Conclusion: Reshaping Contracts for Work Summary of the Argument Translating the Proposed Reshaping into Practice A. Reclassifying Employment Contracts as a Class into Which Terms are Implied by Law B. Defining When Terms Implied by Law are Necessary in Employment Contracts C. Clarifying the Judicial Role and the Potential for a Set of Statutory Default Rules Implied into All Employment Contracts D. Detailing the Precise Approach for Implying a Good Faith Term by Law into Employment Contracts Rethinking the Rationale Bibliography Index Shaping Contracts for Work provides an in-depth examination of the common law's role in shaping contracts for work, through the mechanism of implied terms. It constructs a theory which views the nature of the employment contract as distinct from other types of work contract. Terms implied by law into employment contracts, as well as their potential to operate in other non-standard contracts for the performance of work, are critically examined by reference to the test that courts adopt when they are asked to imply such terms. In part one, Golding provides an overarching survey of the law which governs express and implied terms in contracts. In doing so, she considers the broader judicial role in implying terms and assesses how it can fundamentally alter the nature of the relationship between contracting parties. The second part draws comparisons between England and Australia, tracing the origins and status of select terms across both jurisdictions, and exploring how the application of these terms is often presumed. Golding also examines the duties of mutual trust, confidence, and good faith in both jurisdictions, investigating their potential application in employment contracts. In part three, Golding demonstrates why courts need to better articulate their understanding of what constitutes an 'employment contract' as a distinctive class of contract. By focussing on the impact of terms, this work adds a unique dimension to the debate concerning the regulation of waged work in the context of ever-increasing non-standard modes of work.