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Published online by Cambridge University Press: 02 January 2018
In 2005, the Law Commissions published a report reviewing unfair contracts legislation in the UK. Where the contract of employment was concerned, the Commissions were of the view that, in short, the status quo should remain. This paper seeks to appraise that position and considers whether an opportunity to bring forward beneficial reforms has been missed. The paper takes cognisance of the legislative scheme in New South Wales, which contains extensive powers where unfair contracts are concerned. It is suggested that, in the UK, the two key issues which need to be addressed are contracting-out and terms which may be substantively unfair.
1. Chitty on Contract (London: Sweet & Maxwell, 29th edn, 2004) p 890.
2. Unfair Terms in Contracts Law Com No 292; Scot Law Com No 199.
3. Ibid, para 6.8.
4. The equivalent section in Scotland is s 16.
5. For example, Brigden v American Express [2000] IRLR 94.
6. Freedland, MR The Personal Employment Contract (Oxford: Oxford University Press, 2003) p 190.Google Scholar
7. It may be noted that the Scottish equivalent of s 3 (s 17) does refer to a standard form contract.
8. [2000] IRLR 94.
9. Ibid, at 96.
10. Ibid, at 94.
11. Phillips Products Ltd v Hyland (Note) [1987] 1 WLR 659 at 666 and cited with approval by Stuart-Smith LJ in Johnstone v Bloomsbury HA [1992] QB 333 at 346.
12. Unfair Terms in Contracts, above n 2, para 6.8.
13. Ibid, para 6.8.
14. Kahn-Freund, O Collective agreements under war legislation’ (1943) 5–6 MLR 112 CrossRefGoogle Scholar at 117.
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16. This is now to be found in a number of statutes including the Employment Rights Act 1996, s 230(3).
17. Employment Rights Act 1996, s 230(3)(b).
18. Davis Contractors v Fareham Urban District Council [1956] AC 696 at 724.
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24. Naylor (t/a Mainstreet) v Payling [2004] PIQR 615.
25. Synaptek v Young [2003] STC 543.
26. Allied Dunbar (Frank Weisinger) v Weisinger [1988] IRLR 60 at 65.
27. (1963) 109 CLR 210.
28. Ibid, at 217.
29. [1984] QB 90.
30. [2001] HCA 44.
31. Ibid, at para 68
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33. Lee v Showmen’s Guild [1952] 2 QB 329 at 342.
34. Spring v Guardian Assurance [1995] 2 AC 296 at 335.
35. [1992] QB 333.
36. Ibid, at 346.
37. Ibid, at 346–347.
38. Health and Safety at Work Act 1974, s 2.
39. [2003] 1 AC 518.
40. Johnstone v Bloomsbury HA, above n 35, at 346–347.
41. Clark v Nomura International [2000] IRLR 766.
42. I leave to one side questions relating to the appropriate scope of the duty where protection against psychiatric harm is concerned. See Barber v Somerset CC [2004] IRLR 475.
43. Malik v BCCI [1998] AC 20 at 46.
44. Ibid, at 38.
45. Hill v CA Parsons [1972] 1 Ch 305.
46. Industrial Relations Act 1996, s 106.
47. Ibid, s 105.
48. Ibid, s 106.
49. As well as being able to vary or avoid the contract, s 106 of the Industrial Relations Act 1996 also empowers the Commission to make a consequential order for the payment of such a sum of money as is just in the circumstances of the case.
50. Moray Vincent v Merrill Lynch Australia [2000] NSWIRComm 160.
51. [1998] NSWIRComm 360.
52. I would also suggest that if powers of this type were introduced the relationship between any new statutory scheme and existing statutory rights should be expressly addressed. Where Parliament has legislated on the subject of substantive employment rights it has tended to lay down minima. It might be said that if an employer has complied with such provisions it would be inappropriate to hold that a term was unfair. Of course in some industries bare compliance with statute would be out of line with general standards and a term might be held to be unfair on that basis.
53. [1978] IRLR 63.
54. Repealed by s 19 of the Employment Act 1980.
55. Current Law Statutes 1975, commentary to para 8 of Sch 11.
56. Wood, P ‘The Central Arbitration Committee’s approach to Schedule 11 to the Employment Protection Act 1975 and the Fair Wages Resolution 1946’ (1978) 7 ILJ 65 CrossRefGoogle Scholar at 78.
57. Current Law Statutes 1975, commentary to para 8 of Sch 11.
58. [1989] 1 SCR 1038
59. Davies, P and Freedland, M Kahn-Freund’s Labour and the Law (London: Stevens, 3rd edn, 1983) p 18.Google Scholar
60. Malik v BCCI, above n 43, at 37.
61. Dacas v Brook Street Bureau [2004] IRLR 358.
62. [2001] IRLR 627
63. Lord Bingham of Cornhill ‘From servant to employee: a study of the common law in action’ (2002) 13 SALJ 253 Google Scholar at 266.