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

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