Rights and Interests — A Troublesome Distinction Reviewed in the Context of Labour Arbitration and Industrial Action

1980 ◽  
Vol 15 (4) ◽  
pp. 496-529
Author(s):  
Frances Raday
Keyword(s):  
Common Law ◽  
Industrial Relations ◽  
Large Area ◽  
Labour Law ◽  
Previous Issue ◽  
Industrial Action ◽  
Decision Making Processes ◽  
The Common ◽  
The Difference ◽  
Rule Making

It would seem particularly appropriate following the tribute which appeared in the previous issue of the Israel Law Review, to commence our excursion into Israeli labour law with one of Otto Kahn-Freund's thought-provoking observations.“Over a large area of British industrial relations, the rule-making and the decision-making processes, the, as it were, ‘legislative’ and ‘judicial’ functions are as indistinguishable as they were in the Constitution of medieval England. … And just as in the common law the judge is rule-maker and decision-maker all at once, so in the dynamic system of collective bargaining the parties ignore the difference between interpreting an old rule and making a new one.” Thus, in England, as Professor Kahn-Freund points out, the almost universally accepted distinction between disputes of rights and disputes of interests is not considered relevant.

scholarly journals The applicability of the common law in an industrial relations context (with special reference to industrial action): a comment

1970 ◽  
Vol 12 (2) ◽  
Author(s):  
Martin Vranken
Keyword(s):  
New Zealand ◽  
Western Europe ◽  
Common Law ◽  
Industrial Relations ◽  
Civil Law ◽  
Labour Law ◽  
Labour Relations ◽  
Industrial Action ◽  
The Social ◽  
The Common

This paper reflects on the uneasy relationship that exists in New Zealand between common law and industrial law. A parallel is drawn with the move of labour law away from the general principles of the civil law in Continental Western Europe. It is argued that, especially in the context of industrial action the Labour Relations Act 1987 missed out on a unique chance to assert fully the social autonorny of New Zealand labour law.

scholarly journals The Right to Strike and the "Deadweight" of the Common Law

2019 ◽  
Vol 50 (2) ◽  
pp. 281
Author(s):  
Shae McCrystal
Keyword(s):  
Collective Action ◽  
Negative Impact ◽  
Common Law ◽  
Industrial Relations ◽  
Judicial Interpretation ◽  
Industrial Action ◽  
The Common ◽  
The Right ◽  
Principle Of Legality

The hostility of the common law in respect of collective action by workers in the form of strikes is notorious. To provide workers with a right to strike, legislative intervention is necessary. In New Zealand and Australia, legislative enactment of the right to strike has taken the form of the "immunity approach" whereby strike action which meets the prerequisites for protection under the relevant statute receives immunity from common law action, while that which does not remains subject to potential liability at common law.This article analyses the adoption of the immunity approach in Australia under the relevant federal industrial relations statutes that have operated since 1993. Commencing with discussion of the hostility of the common law to collective action and the principle of legality, a presumption of statutory interpretation that presumes Parliament would not have abrogated common law rights without an express intention to do so, this article examines how the scope of protected industrial action in Australia has been consistently narrowed through hostile judicial interpretation. Such interpretation has been grounded in an approach which narrows the extent that common law rights are restricted by the statute and construes the statutory enactment of a right to strike as conferring a "privilege" on those industrial actors who remain "worthy" enough to access it.Considering the progressively negative impact on the right to strike of this approach, the argument in this article echoes calls made by Gordon Anderson in 1987 to reject the continued role of the common law in the regulation of industrial action. It is argued that the law of strikes in Australia should be codified. Such an approach should assist in downplaying judicial tendencies to interpret the right to strike as a privilege rather than as a necessary component of a functioning system of voluntary collective bargaining.

The Coalition's Plan to Regulate Industrial Relations

1993 ◽  
Vol 4 (1) ◽  
pp. 1-26 ◽  
Author(s):  
Braham Dabscheck
Keyword(s):  
Common Law ◽  
Industrial Relations ◽  
Good Faith ◽  
The Common ◽  
Industrial Conflict ◽  
The Law

In October 1992 the federal coalition released Jobsback, a statement of its industrial relations policies. The article situates Jobsback in the context of the evolution of the coalition's industrial relations policies since the Fraser years, outlines its major features, and provides a critique. Jobsback erects a new regulatory schema under a banner of deregulation. Three key elements are contained in Jobsback. They are tribunal avoidance and the use of the common law, legislatively imposed employment rules to ‘aid’ the transition from an award to a non-award system, and enterprise confinement. The article draws attention to the coalition's views concerning industrial conflict, constitutional issues, transitional problems associated with establishing legislatively imposed workplace rules, minima in workplace agreements, the Office of the Employee Advocate, equality before the law and good faith bargaining.

scholarly journals Te ao Māori in a "Sympathetic" Legal Regime: the Use of Māori Concepts in Legislation

2009 ◽  
Vol 40 (2) ◽  
pp. 531 ◽  
Author(s):  
Arnu Turvey
Keyword(s):  
Decision Making ◽  
Cultural Identity ◽  
Common Law ◽  
Legal Regime ◽  
Treaty Of Waitangi ◽  
Decision Making Processes ◽  
Practical Effect ◽  
The Common ◽  
The Government ◽  
Positive Step

The incorporation of Māori concepts into legislation has been one of several methods the government has employed to acknowledge and promote Māori cultural identity and give practical effect to the Treaty of Waitangi within its legislative frameworks.  While legal recognition of Māori concepts may have appeared as a positive step towards the creation of a mutually beneficial level of bicultural discourse in the government's management frameworks, in practice they have been the source of a new set of challenges. By transplanting Māori concepts directly into legislation, Māori ideas must become operational parts of Western regimes; concepts which are to be recognised and given effect to within the decision-making processes of bodies charged with the administration of particular legislation as well as the courts. Drawing on Commons' observations about the nature of artificial selection - the process by which the meaning of ideas and language is consciously or subconsciously manipulated by the group in power in order to advance its own interests, it becomes evident that, in the context of the common law legal system, Māori concepts have become detached from their original purpose and meaning.

The Contractualisation of Labour Law

2018 ◽  
pp. 33-47
Author(s):  
John Gardner
Keyword(s):  
Common Law ◽  
Employment Relationship ◽  
Labour Law ◽  
Work Relations ◽  
Contractual Relationship ◽  
The World ◽  
British Labour ◽  
The Common ◽  
The Law ◽  
Main Ideas

This chapter explores the idea that labour law rests on ‘a contractual foundation’, and the idea that work relations today are ever more ‘contractualised’. Section 1 lays out some essentials of British labour law and its connections with the common law of contract. Section 2 explains what contractualisation is, not yet focusing attention on the specific context of labour law. The main claims are that contract is not a specifically legal device, and that contractualisation is therefore not a specifically legal process, even when the law is complicit in it. Section 3 shifts attention to the world of work, especially the employment relationship. Here the main ideas are that the employment relationship is not (apart from the law) a contractual relationship, and that all the norms of the employment relationship cannot therefore be captured adequately in a contract, legally binding or otherwise. Section 4 illustrates the latter point by focusing on the rationale and the limits of the employer’s authority over the employee. A contractual rationale yields the wrong limits. It gives its blessing to authoritarian work regimes and lends credence to the miserable view that work is there to pay for the life of the worker without forming part of that life. Throughout the chapter there are intimations of the conclusion drawn in section 5: that contractualisation, in the labour market at least, is a process that lovers of freedom, as well as lovers of self-realisation, should resist—or rather, should have resisted while they still had the chance.

scholarly journals Dividend Smoothing and Investor Protection

2019 ◽  
Vol 22 (2) ◽  
pp. 55-70
Author(s):  
Ante Džidić ◽  
Silvije Orsag
Keyword(s):  
United States ◽  
Common Law ◽  
Investor Protection ◽  
Civil Law ◽  
Legal Origin ◽  
Agency Model ◽  
Dividend Smoothing ◽  
Widespread Phenomenon ◽  
The Common ◽  
The Difference

Abstract This paper examines the agency model of dividends where the importance of dividends depends on the level of investor protection. The importance of dividends is presented by the dividend smoothing concept, while the level of investor protection is determined by the legal origin. Within this, the sensitivity of dividends to earnings changes was analyzed to examine the universality of the dividend smoothing phenomenon. Subsequently, the difference in proportions of dividend smoothing firms within the common law and civil law countries was tested to determine which of these two systems attributes more importance to dividends. Finally, the application of Lintner’s model was examined in transition countries as well as in United States. Research results show that dividend smoothing is a globally widespread phenomenon, but the likelihood to reduce or cut dividends is greater in civil law countries. Also, the largest percentage of dividend smoothing firms was recorded in common law countries.

Employment Law in Context

2020 ◽  
Author(s):  
David Cabrelli
Keyword(s):  
Common Law ◽  
Historical Context ◽  
Employment Law ◽  
Labour Law ◽  
Practical Applications ◽  
The Social ◽  
The Common ◽  
Employment Rights ◽  
A Company

Employment Law in Context combines extracts from leading cases, articles, and books with commentary to provide a full critical understanding of employment law. As well as providing a grounding in individual labour law, this title offers detailed analysis of the social, economic, political, and historical context in which employment law operates, drawing attention to key and current areas of debate. An innovative running case study contextualizes employment law and demonstrates its practical applications by following the life-cycle of a company from incorporation, through expansion, to liquidation. Reflection points and further reading suggestions are included. The volume is divided into eight main Parts. The first Part provides an introduction to employment law. The next Part looks at the constitution of employment and personal work contracts. This is followed by Part III, which examines the content of the personal employment contract and the obligations imposed by the common law on employers and employees. The fourth Part is about statutory employment rights. The fifth Part covers equality law. Part VI looks at the common law and statutory regulation of dismissals. The Part that follows considers business reorganizations, consultation, and insolvency. Finally, Part VIII describes collective labour law.

Bearing the Economic Loss of Industrial Action: The Payment of Striking Employees under the Fair Work Act 2009 (Cth)

2013 ◽  
Vol 18 (2) ◽  
pp. 292
Author(s):  
Karen Wheelwright
Keyword(s):  
Common Law ◽  
Economic Loss ◽  
Court Decision ◽  
Political Climate ◽  
High Court ◽  
Legal Principles ◽  
Industrial Action ◽  
The Common ◽  
The Right

This article aims to elucidate the legal principles governing the right of striking employees in Australia to payment during periods of industrial action. It explains briefly the common law antecedents to the strike pay provisions of the Fair Work Act 2009 (Cth) and discusses in detail a number of decisions that interpret those provisions, including the recent High Court decision in CFMEU v Mammoet, which held that the prohibition on payments to employees who take protected industrial action is confined to the withholding of wages and does not permit employers to withhold other benefits, such as employer-sponsored accommodation. The article argues that, whilst the High Court decision provides a welcome clarification, there is a need for further judicial clarification of the partial work ban provisions in particular. The article discusses the assertions that the Fair Work Act provisions are overly prescriptive and the reasons for this, and suggests that they are unlikely to be relaxed in the current political climate.

15. Inchoate offences: attempt, conspiracy and assisting and encouraging under the Serious Crime Act 2007

2018 ◽  
Author(s):  
Janet Loveless ◽  
Mischa Allen ◽  
Caroline Derry
Keyword(s):  
Great Britain ◽  
Common Law ◽  
Mens Rea ◽  
Court Decisions ◽  
Serious Crime ◽  
Different Types ◽  
Actus Reus ◽  
The Common ◽  
The Difference

This chapter examines different types of inchoate offences in Great Britain, which include attempt, conspiracy, and encouraging or assisting. It explains the conditions of liability for these offences, discusses the relevant provisions of the Serious Crime Act 2007, clarifies the general principles of these offences, and identifies their actus reus and mens rea elements. It also explores and clarifies the difference between these offences. The chapter discusses the three offences that replace the common law offence of incitement which apply to one who ‘facilitates’ another’s offence. Examples of relevant cases and analyses of court decisions in each of them are also provided.

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