Documents Cabrelli, David 6 results

"There is an argument in academic circles that the implied duty of mutual trust and confidence will evolve to form an all-embracing super-principle under which each of the more ‘traditional' implied duties will rest, including the employer's implied duty to exercise reasonable care for the welfare and well being of the employee. The theme of this article is that, on balance, there is no evidence for the emergence of the implied duty of mutual trust and confidence as a super-principle. If anything, the recent trends in the case law emphasise the distinctiveness of the employer's duties to exercise reasonable care and trust and confidence. The article's aim was to demonstrate that both duties are separate, free-standing duties, sitting on an equal plane in terms of importance. To rationalise one, or all of the implied duties (i.e. the duty to exercise reasonable care and/or all of the other ‘traditional duties'), as one of the means by which the super-principle of trust and confidence is, or may be expressed, is to a large extent, aspirational."

"This paper pursues a line of enquiry regarding employment laws which promulgate standards (rather than rules), the legitimacy of which is premised on the need to scrutinise managerial autonomy pursuant to a norm-setting, rather than norm-reflecting agenda. Insights will be offered in relation to the expectations about the exercise of the managerial prerogative which the law transmits through such standards. The argument is advanced that a by-product of the common law and statutory policy initiatives lying at the heart of the regulation of managerial autonomy has been the emergence of differing behavioural standards in the employment relationship. In order to satisfy the common law and statutory obligations which they owe towards their employees, employers are expected to discharge a variety of standards of conduct and adjudicators must apply differing standards of review in evaluating the lawfulness of managerial discretion. These differing standards can be grouped into a hierarchy, exploring how they function to exert a higher or lower level of scrutiny of the managerial prerogative. The paper proceeds to explore the rationales for the promulgation of such differing behavioural standards in different decision-making contexts. Finally, it goes on to analyse whether such differing standards are justifiable from a formalistic and doctrinal perspective and considers the practicability and desirability of a modest package of reform consisting of limited re-alignment whereby certain standards would be harmonised in similar contexts. "

"The nature of the study to be pursued in this article concerns the extent to which the common law systems of England and Australia contain principles or rules designed to impinge on an employer's freedom of contract or legitimate trading interests in order to promote the ability of an employee to trade, work freely, and enjoy the benefits of his/her labour and innovations. This will entail spelling out the principal elements of both the English and Australian concepts and outlining the differences between them in light of new problems that have emerged as a result of recent developments in economic and social conditions."

"In previous work, the authors have sought to demonstrate how a particular strand of contemporary political theory can be usefully adopted to shed valuable light on labour law. In short, the conception of ‘non-domination' grounded in contemporary civic republican political philosophy and associated with scholars such as Philipp Pettit and Frank Lovett prescribes a sophisticated account of freedom and a socially just order. In the latter's framework, social justice is secured when laws and policies are introduced to subject private social relationships characterized by dependency and an arbitrary imbalance in social power to a measure of external control. As a subset of a socially just order, the previous work of the authors sought to sketch out how nondomination theory could act as a justification for labour laws. This would conceptualize labour laws as a set of measures that are designed to achieve a degree of ‘non-domination' in the employment relationship. Labour law achieves this by introducing legal and policy controls limiting the employee's dependence on his/her employer and restricting the arbitrary power imbalance inherent in the relationship between the employer and the employee. By serving to tone down the level of arbitrary decision-making vested in the employer, the dependency of the employee on the employer, and/or by counterbalancing the degree of power wielded by the employer, it was argued that procedural and substantive labour laws such as unfair dismissal/discharge, minimum wage laws, working time controls, and collective labour and trade union rights can be perceived as measures that are consistent with a legal framework designed to secure a degree of ‘non-domination' of the worker. In this article, the various advantages of nondomination theory as a justification for labour laws are summarized before the discussion turns to a detailed assessment of the range of objections that can be levelled at such a justificatory framework. In particular, the accusation that it is not descriptively accurate as a model, nor normatively useful as a conception for labour laws, is subjected to greater scrutiny. The article concludes with the general proposition that although Pettit's and Lovett's non-domination model is insufficient to act as an abstract justificatory theory for labour laws, it can act as a driver for specific labour laws; and more specifically, for a particular conception or form of labour law that promotes a distinctive set of regulatory techniques, and vision of the role and function of the central notion of the contract of employment. The primary significance of this article rests in the insight that domination-based narratives of civic republicanism have the capacity to act as a bridge between existing individual, relational, autonomous, substantive and procedural accounts of the regulation of the law of the contract of employment and political philosophy: a ‘new normativity', albeit one that is restricted in scope. "

"The contract of employment is the central legal institution of modern English employment law. It provides the foundation upon which most statutory employment rights are constructed; it provides a conduit for the implementation of norms negotiated in collective bargaining; and it continues to provide a contractual structure for the terms and conditions of employment for a significant proportion of the working population. The Contract of Employment provides the most ambitious and comprehensive treatise on the theoretical and doctrinal aspects of the English contract of employment in the common law world. Under the general editorship of Professor Mark Freedland, the text has been produced by a team of world leading experts in employment law. Part I examines the theoretical context to the contract of employment, studying its structure and development from a wide variety of theoretical and comparative perspectives. Part II provides an exposition and analysis of the doctrinal aspects of the contract of employment.
The coverage of The Contract of Employment is unrivalled in its depth, detail and sophistication. The legal analysis is always informed by a keen sense of the modern labour market context of the contract of employment, and it is sensitive to contemporary challenges such as precariousness, the interaction with migration law, the role of legislation in the contract of employment, and the decline of collective bargaining. It will be the principal reference point for the practitioners, judges, and academics concerned with the contract of employment as a legal category, both nationally and internationally."