Conclusion

Abstract

Abstract Through the lens of terms implied by law, this final chapter arrives at an overarching theory of the nature of the employment contract in relation to other types of contract for the performance of work. This is achieved by making a series of conclusions and recommendations as to the ways in which courts might shape the nature of the employment contract in the future. A rethinking of the courts’ rationale for implying terms by law into those contracts primarily, as well as the broader category of contracts for the performance of work is suggested. Following the analyses in previous chapters, this concluding chapter recommends four main options for reform in both England and Australia. These options include, first, that there is a need for the courts to better articulate their understanding of what actually constitutes the ‘employment contract’ as a distinctive class of contract into which terms are implied by law, separate from the broader notion of ‘contracts for the performance of work’. Secondly, courts must clarify when it is ‘necessary’ to imply a term by law into the class of employment contracts. Thirdly, the judicial role must be clarified in relation to the regulation of employment. Lastly, there ought to be greater clarity around the interrelationship, if any, between a duty of good faith and mutual trust and confidence.