The Modern Contract of Employment - eBook

Leading employment law experts, Ian Neil SC and David Chin of the NSW Bar offer an elegant and substantial Australian text dealing with the modern contract of employment. Set to become the authoritative Australian reference to the contract of employment, it draws on jurisprudential developments in the United Kingdom and the United States over the last 25 years. Written by practitioners for practitioners, it sets out what the Australian law is and where to find it.

The authors’ sharp, clear and incisive analysis will be valued, made accessible for barristers, solicitors, academics and students by a succinct and expository style. Focusing specifically on the law of employment contracts, it offers in-depth analysis of the modern common law of the contract of employment, written in a succinct way that aims to provide answers, not more questions. Specific chapters on difficult areas such as the Fiduciary Obligation of Loyalty, and Mutual Trust and Confidence are critical reading for practitioners.

Table of Contents
Identifying a contract of employment
Identifying the employer
Formation
Variation
Express terms
Implied terms
Mutual trust and confidence
The fiduciary obligation of loyalty
Confidential information
Suspension
Termination
Restraints of trade
Collective agreements
Contractual remedies
Index

 

REFERENCES

Justice Monika Schmidt, launching The Modern Contract of Employment, said the book “fills a real gap for those who are daily dealing with the difficult human problems which employment law deals with. I commend it, because it deals succinctly and intelligibly with the crucial questions which the law of contract raises for employment and related fields. In my experience it is the all too frequent failure of those who have to deal with these problems, to engage with these questions and to get them right, which time and again results in difficulty and error, error which on occasions has led our society down quite wrong paths.

“It seems to me that what is too often overlooked is that in our legal system, employment contracts are not only in every single case agreements which people freely enter with each other, but they are also the legal foundation on which people perform the work, which is the bedrock of our civil society and its economic success. This foundation may not be tangible, but it is both a real and very important part of how people in our society interact with each other, day in and day out.

“As the book explains, employment relationships can arise from nothing else other than agreement, because while we certainly encourage volunteers, we do not permit either conscription or slavery. This is important because the employment contracts which people agree to make with each other, have a myriad of social consequences for all of us. Understanding such agreements, how they come to be made, the obligations and rights which they give rise to, how they can be brought to an end and what the consequences will then be, are all crucial not only to the individuals who enter such agreements, but also the society which depends on their effective operation.

“This is why it seems to me that this is not only an important book for students, practitioners and judges, but also a really valuable tool for legislators and their advisers, as well as the drafters of legislation.”

Sydney, 6 September 2012

 

Citation of The Modern Contract of Employment in Barker v Commonwealth Bank of Australia [2012] FCA 942 (03 September 2012), at [323], per Besanko J:

“It seems clear enough that in England there is an implied term of trust and confidence in a contract of employment so that an employer must not without reasonable and proper cause conduct itself in a manner likely to destroy or seriously damage the relationship of confidence and trust between employer and employee: Malik v Bank of Credit and Commerce International SA (in liq.) [1997] UKHL 23; [1998] AC 20 at 33-34 per Lord Nicholls of Birkenhead. Subsequent English cases have involved a working out of the nature and scope of the term and the identification of an exclusion area, that is, an area of the employer and employee relationship where the term does not apply: Johnson v Unisys Ltd [2003] 1 AC 518 (“Johnson v Unisys”); Eastwood v Magnox Electric plc [2004] UKHL 35; [2005] 1 AC 503; Edwards v Chesterfield Royal Hospital NHS Foundation Trust [2012] ICR 201; see also: Neil I and Chin D, The Modern Contract of Employment (LawBook Co, 2012) at para 7.30. The exclusion area is that the term does not apply at the point of dismissal (Johnson v Unisys).”

 

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Reading the book, it struck me that it fills a real gap for those who are daily dealing with the difficult human problems which employment law deals with. I commend it, because it deals succinctly and intelligibly with the crucial questions which the law of contract raises for employment and related fields. In my experience it is the all too frequent failure of those who have to deal with these problems, to engage with these questions and to get them right, which time and again results in difficulty and error, error which on occasions has led our society down quite wrong paths.

It seems to me that what is too often overlooked is that in our legal system, employment contracts are not only in every single case agreements which people freely enter with each other, but they are also the legal foundation on which people perform the work, which is the bedrock of our civil society and its economic success. This foundation may not be tangible, but it is both a real and very important part of how people in our society interact with each other, day in and day out. As the book explains, employment relationships can arise from nothing else other than agreement, because while we certainly encourage volunteers, we do not permit either conscription or slavery. This is important because the employment contracts which people agree to make with each other, have a myriad of social consequences for all of us. Understanding such agreements, how they come to be made, the obligations and rights which they give rise to, how they can be brought to an end and what the consequences will then be, are all crucial not only to the individuals who enter such agreements, but also the society which depends on their effective operation.

This is why it seems to me that this is not only an important book for students, practitioners and judges, but also a really valuable tool for legislators and their advisers, as well as the drafters of legislation. A better understanding of the operation of the law of contract in the employment context, would certainly help redress what appears to present a considerable challenge for legislators at the moment – and I don’t mean producing a statutory law to regulate all Australian contracts - but rather more urgently, improving current federal regulation of employment law.

The Hon Justice Monika Schmidt, September 2012

General Downloads

• MCE_Launch_Schmidt J_6 Sep 2012 [PDF 122590]

Product Reviews

• (2012) 36 Australian Bar Review [PDF 63849]
• Law Institute Journal April 2013 [PDF 30569]
• Workplace Review (2012) 3 WR 127 [PDF 688360]