Employment as a Class of Contract

Abstract

Abstract This chapter considers the first element of the test for implying a term by law as a necessary incident of employment contracts: that the term must be necessary in the ‘class’ of employment contracts. It undertakes a comprehensive analysis of employment contracts as a ‘class’ into which terms are implied by law, which, by its nature, includes an assessment of what separates that class of contract from other types of contracts for the performance of work. The discussion in this chapter demonstrates that, in the context of implying terms by law, the class of employment contracts is not easily identifiable. In fact, the so-called ‘class’ is an overly generalised and inconsistently defined category into which terms have been and are implied by law. In that sense, the employment contract does not necessarily confine itself to a unique definition or understanding. It retains a whole range of characteristics that are also present in other types of contracts, including the broader category of contracts for the performance of work. Courts have paid sparse attention to identifying and understanding employment contracts as a distinctive class of contract when they imply terms by law. There is scope for courts to develop that understanding. Generating this further understanding will assist courts in developing the common law that shapes employment contracts. It will also allow for more accurate predictions as to how common law is likely to develop as it continues to shape those agreements.