Category Archives: Employment and Labour Law
Gabrielle Golding, ‘The Origins of Terms Implied by Law into English and Australian Employment Contracts’
ABSTRACT One of the most significant ways that the common law regulates employment contracts is through the implication of terms by law to fill gaps. This article traces the origins and current status of a selection of key terms implied by law into both English and Australian employment contracts. The majority of those terms have […]
Anthony Forsyth, ‘The Identity of the “Employer” in Australian Labour Law: Moving Beyond the Unitary Conception of the Employer’
ABSTRACT This article examines the concept of the ‘employer’ in Australian labour law, showing how the use of this term (and the related concept of ‘employee’) can operate to limit the rights of workers in relation to unfair dismissal, collective bargaining and employment entitlements under the Fair Work Act 2009. It also considers several areas […]
Craig Purshouse, ‘Halting The Vicarious Liability Juggernaut: Barclays Bank Plc v Various Claimants’
ABSTRACT In Barclays Bank plc v Various Claimants [2020] UKSC 13, the Supreme Court rejected the claimants’ argument that Barclays should be vicariously liable for the sexual assaults of a doctor hired on as a contractor to perform medical examinations on employees and job candidates at the bank. It upheld the traditional rule that a […]
Robert Sprague, ‘Are Airbnb Hosts Employees Misclassified as Independent Contractors?’
ABSTRACT Many companies have long sought to classify their workers as self-employed independent contractors rather than as employees. The battle over appropriate worker classification – employee vs independent contractor – has become more protracted in recent years due to the rise of online platform-based business models that provide on-demand services, such as Uber and Lyft […]
‘The Consentability of Mandatory Employment Arbitration Clauses’
“Deborah Zalesne recently posted an article on ‘The Consentability of Mandatory Employment Arbitration Clauses’ on SSRN. Her article was part of the Loyola Law Review symposium issue on consentability. (The symposium issue is available on Westlaw but it is not yet up on the Loyola Law Review website). Zalesne applies my consentability framework to mandatory […]
Kaiponanea Matsumura, ‘Breaking Down Status’
ABSTRACT The law regulates some of society’s most important relationships through status. Yet social and legal changes can render statuses obsolete or ineffective. Two pressing examples are the debates surrounding worker classification and nonmarital relationship recognition. By some estimates, between one quarter and one third of all US workers are part of the gig economy. […]
‘Common Law Frustration and Redundancy in the Context of Covid-19 Furlough’
“A limited number of cases have been decided by the House of Lords, Court of Appeal and the EAT concerning the applicability of the common law concept of ‘frustration’ in the context of the contract of employment. Each of these cases considered the operation of frustration on the employment contract in the context of the […]
‘Uber v Heller: An “Agreement Not to Arbitrate” Is Unconscionable’
“Much has been written over the past weeks about the Supreme Court of Canada decision in Uber v Heller, one of the most anticipated decisions of the year – at least in arbitration and employment law circles. I won’t go into a detailed analysis of the decision in the face of much more learned comments. […]
‘You haven’t bought my silence: confidentiality not a condition of settlement’
“In Duchy Farm v Steel the High Court upheld a County Court decision that a confidentiality clause in a settlement agreement was not a condition of the agreement, and a breach of confidentiality by Steel therefore did not absolve Duchy Farm of the obligation to pay settlement monies. Duchy Farm and Steel settled an employment […]
Niall O’Connor, ‘Whose Autonomy is it Anyway? Freedom of Contract, the Right to Work and the General Principles of EU Law’
ABSTRACT Just how significant is the freedom of contract found in Article 16 of the EU Charter of Fundamental Rights for the regulation of the employment relationship? For the first half of its existence, few could have foreseen that Article 16 would soon be at the centre of debates surrounding the place of business freedoms […]