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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-

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