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26 Managerial L. 1 (1984)

handle is hein.journals/ijlm26 and id is 1 raw text is: The Sources of the Contract of Employment - Implied terms at common law - The employer's duties he Sources he fundamental importance of the contract of employ- ent concept has already been stressed (1) and the distinc- >n has been drawn between it and some of its closest lies, the contract for services (2) and other employment lationships.(3) In discussing the contract of employment, was stated that one of the characteristics of such a con- act is that ......although at common law the parties can theory lay down their own terms and conditions in a ntract, the relationship is partly contractual, the terms of e employment relationship being dictated by either col- ctive bargaining or by statute.(4) The sources of terms id conditions can emanate therefore from either the col- ctive agreement when an incorporation has taken place to the individual contract of employment, or from sta- te. There is however another source, this being from the iplied terms at common law. Indeed, in the case of the st of these, namely incorporation, Freedland(5) did state at the contract of employment has developed, predomi- mntly into a contract by incorporation rather than through rms implied by law. It is of course true that the in- irporated collective agreement is perhaps the most im- )rtant source of terms of the contract of employment :cause these have been negotiated between unions and nployers, yet statute and the implied terms at common tv play an equally important role as a source of terms of e contract of employment albeit of a more static nature an those of the collective agreement. Furthermore, the trties to a contract of employment are not normally able contract out of the statutory provisions, but they may ntract out of the common law implied terms. Even though the employer and the employee do not Prmnally negotiate the contract of employment and the urce of its terms and conditions are primarily the result of llective bargaining with a superimposition of statute and mmon law implied terms, the conclusion has been ached that ...the contract of employment remains for e most part a voluntary relationship between employer d employee.... and that ....the contractual feature is ramount in the relationship....(6) The contract of emp- yment is therefore a contract which is subject to the rules contract generally. As we have seen already, there must ist offer and acceptance, there must be consideration, (7) e contract of employment must be lawful, (8) and so on. te parties to the contract are theoretically free to stipulate iatever terms they wish, which terms will govern their lationship. Having said that however, the source of terms of a con- ict of employment are in practice primarily determined the collective agreement through express or implied corporation. Another source of terms will be found in the corporation of exemption orders made in connection th the statutory unfair dismissal, the redundancy and the tarantee payments provisions. Yet a further source albeit direct, will be found in the Central Arbitration Commit- e awards made under ss.19, 20 and 21 of the Employment otection Act 1975 i.e. disclosure of information for col- ctive bargaining purposes. A fourth source of terms of a ,ntract of employment is to be found in the terms which e implied at common law, a fifth source consists of the atutory terms, a sixth consists of custom and practice, irks rules, and finally, even though the statutory -itten statement given to the employee is not the contract tmploymicnt. (9) this statement may provide evidence of iit the principal terms of the contract of employment are. ' statutory statement has been described as ....an in- valuable aid to navigation in the uncertain sea of con- tractual terms. (10) It is now proposed to treat the sources of terms of the contract of employment as outlined above. In the first two parts there will take place a discussion and analysis of the terms of employment implied at common law. This will be divided into two, namely, the implied common law duties of the employer towards his employee, which will be dis- cussed in this part, and the common law duties of the employee towards his employer, an appreciation of which will follow in the subsequent part. There will then be, in a third part, a discussion of the terms provided for by statute. Custom, practice and works rules as a source of terms of the contract of employment will then be considered. Express and implied incorporation of the collective agreement into the individual contract of employment which constitutes another source of terms has already been fully discussed (11) and will therefore not be treated, although a source allied to incorporation will appear in a future part. This, which straddles between the contract of employment and collective bargaining will therefore logically and naturally lead us out of the realm of the contract of employment and into that of the collective agreement. This future part will consist of a discussion on the incorporation into the con- tract of employment of exemption orders made in connec- tion with the statutory unfair dismissal, the redundancy and the guarantee payments provisions, under the 1978 legisla- tion. There will then follow, in yet a further part a critical analysis of the Central Arbitration Committee awards made under ss 19 to 21 of the Employment Act 1975. As both these topics, - namely incorporation of exemption orders and C.A.C. awards, - relate to legislative encour- agement (a) to enter into a collective agreement with a consequent incorporation taking place and, (b) to promote collective bargaining by the use of the sanction as being an indirect means of incorporation through the C.A.C. award, respectively, it is proposed to entitle both these parts Incorporation in relation to State promotion of col- lective bargaining I and II. For the sake of completeness, a third part will analyse the Fair Wages Resolution, Schedule II (Extension of terms and Conditions of Emp- loyment) and statutory recognition, all of which are now of historical interest and Wages Councils and Statutory Joint Industrial Councils. Terms of employment implied at Common Law It will be recalled that although the contract of employment derives its terms from a number of sources, such a contract nevertheless forms part of the law of contract generally, the terms of which are subject to agreement between the parties concerned, namely the employer and the employee. S.1 of the Employment Protection (Consolidation) Act 1978 imposes a duty on the employer to provide his emp- loyee within the first 13 weeks of employment with certain terms of his contract of employment. This statutory state- ment, it is submitted, refers the employee to the basic terms of his employment and is by no means a full and complete catalogue of all the terms and conditions. The employee will be aware of inter alia the date when his employment began; whether previous employment counts as part of his continuous period of employment; the scale and rate of his remuneration and the intervals at which it is paid: his hours of work; holidays, holiday pay, any sick pay or pension schemes; the length of notice to be given on both sides to terminate the employment; disciplinary and grievance pro- D Digitized from Best Copy Available

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