scholarly journals An interpretation of the statutory term worker: a reply to Geare

1970 ◽  
Vol 16 (2) ◽  
Author(s):  
Isaacus K. Adzoxornu
Keyword(s):  
New Zealand ◽  
Common Law ◽  
Industrial Relations ◽  
Independent Contractor ◽  
Labour Relations ◽  
The Common ◽  
To Come ◽  
Definition Of

Under notnaal circumstances, I would have allowed Geare (1991) to indulge himself in the erroneous view that the interpretation of the tetna "worker" in the Labour Relations Act 1987 is confined to the common law "employee". lt is necessary however, to come out to defend my original thesis (Adzoxomu, 1990) that the tetna need not be so narrowly construed. Geare seeks to demonstrate, without the relevant historical or policy considerations, and more importantly, without the relevant canons of statutory construction, that his counter thesis is "in fact clearly superior" to mine (p.193). It is clear from the Geare's comment that he considers modern New Zealand industrial legislation to have preserved the master and servant relationship. The purpose of this reply is to reassert my original thesis that the definition of "worker" in the Labour Relations Act is liberal enough to cover an independent contractor and to demonstrate that the counter thesis of Geare is too conservative to meet the requirements of modern industrial relations. I shall achieve this purpose by addressing Geare's counter thesis under his own subheadings.

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.

The Need for a Constitution in the United Kingdom

1979 ◽  
Vol 14 (3) ◽  
pp. 269-285
Author(s):  
Wilberforce
Keyword(s):  
United Kingdom ◽  
New Zealand ◽  
Legal System ◽  
Common Law ◽  
Bill Of Rights ◽  
The United Kingdom ◽  
Flexible Instrument ◽  
The Common ◽  
Definition Of ◽  
The Right

I was not surprised when, from several alternative subjects, you chose, as the title of my Lecture, the need for a Constitution in Britain. Those of us without a written constitution are indeed, a select club—New Zealand, Israel, the United Kingdom.I will start with a quotation from Lord Salmon. In a recent lecture, he said: In this country [U.K.] we have an unwritten constitution. I have always regarded this as a blessing and never agreed with the theoretical objections to it. It is superbly flexible and above all it has stood the test of time. It works—and works admirably. But I am beginning to wonder whether it might not be wise to evolve, not an elaborate written constitution but perhaps the equivalent of a modern Bill of Rights. A statute which should lay down our basic freedoms, provide for their preservation and enact that it could not be repealed save by, say, a 75% majority of both Houses of Parliament.One can recognize in this passage the views of an eminent common lawyer, believing in the strength and potentialities of the common law as a flexible instrument, in, of course, the right hands: of one who believes deeply in human freedom, and who is concerned about the threat to it: who desires an explicit definition of the basic liberties and who believes that these can be protected by a sufficiently strong, entrenched, legal system. In this he undoubtedly reflects the views of many people, probably of the majority of ordinary men.

scholarly journals The reception of the economic torts into New Zealand labour law: a preliminary discussion

1970 ◽  
Vol 12 (2) ◽  
Author(s):  
Gordon Anderson
Keyword(s):  
New Zealand ◽  
Common Law ◽  
Basic Question ◽  
Labour Law ◽  
Labour Relations ◽  
Preliminary Discussion ◽  
The Common ◽  
The Law ◽  
The Impact

This discussion raises a nu1nber ojissues related to the introduction of the economic torts into New Zealand labour law during the 1970s. These include the question of whether such major innovations accorded with the principles normally accepted by comparative lawvers when considering legal transplants. and the basic question of whether the common law as developed in Britain is, in this case, suitable for New Zealand circumstances. The impact of the law in New Zealand is then outlined and the changes introduced hy the Labour Relations Act are briefly considered.

scholarly journals Trade Union Recognition and Australia’s Neo-Liberal Voluntary Bargaining Laws

2003 ◽  
Vol 57 (2) ◽  
pp. 225-251 ◽  
Author(s):  
Ron McCallum
Keyword(s):  
United States ◽  
New Zealand ◽  
Trade Union ◽  
Trade Unions ◽  
Common Law ◽  
Industrial Relations ◽  
The United States ◽  
Recognition Mechanism ◽  
The Common ◽  
The Right

Summary When Australia deregulated its economy in the 1980s, political pressures built up leading in the 1990s to the dismantling of Australia’s industry-wide conciliation and arbitration systems. New laws established regimes of collective bargaining at the level of the employing undertaking. This article analyzes the 1993 and 1996 federal bargaining laws and argues that they fail to protect the right of trade unions to bargain on behalf of their members. This is because the laws do not contain a statutory trade union recognition mechanism. The recognition mechanisms in the Common Law countries of the United States, Canada, Britain and New Zealand are examined, and it is argued that Australia should enact trade union recognition mechanisms that are consonant with its industrial relations history and practice.

scholarly journals “TRUE” JURISDICTIONAL QUESTIONS AND THE IRRELEVANCE OF A CERTIFICATE OF OUTCOME Bombardier Transportation (Pty) Ltd v Mtiya NO [2010] 8 BLLR 840 (LC)

Obiter ◽  
2021 ◽  
Vol 31 (2) ◽  
Author(s):  
Avinash Govindjee ◽  
Adriaan van der Walt
Keyword(s):  
Common Law ◽  
Labour Relations ◽  
Time Limits ◽  
Form Part ◽  
Labour Practice ◽  
Statutory Body ◽  
The Common ◽  
Definition Of

In the context of proceedings before the Commission for Conciliation, Mediation and Arbitration (“the CCMA”), the concept of “jurisdiction” generally refers to the authority of the CCMA to conciliate and arbitrate disputes between parties. The CCMA is an independent statutory body established in terms of section 112 of the Labour Relations Act 66 of 1995 (“the LRA”). It does not enjoy the wide powers of inherent jurisdiction and, furthermore, does not derive its jurisdiction from the common law, performing only the functions indicated by labour-related statutes such as the LRA. If there is a dispute about the fairness of a dismissal, or a dispute aboutan unfair labour practice, the dismissed employee or the employee alleging the unfair labour practice may refer the dispute in writing to the CCMA if no bargaining council has jurisdiction. Such a referral must generally be made within 30 days of the date of a dismissal or within 90 days of the date of the act or omission which allegedly constituted the unfair labour practice. The CCMA must attempt to resolve such a dispute through conciliation. If a commissioner has certified that the dispute remains unresolved, or if 30 days have expired since the CCMA received the referral and the dispute remains unresolved, the CCMA must arbitrate the disputes referred to in section 191(5)(a) upon request. Given the wording of such provisions, it is unsurprising that employers have requested conciliating commissioners to make in limine rulings on matters pertaining to the nature of the dispute (including whether or not the case involves a “dismissal” at all), time limits and applications for condonation and the identity of the parties (in particular, whether the applicant meets the definition of an “employee”). Section 192(1) of the LRA may support the validity of such a request at conciliation. It states that in any proceedings concerning any dismissal, the employee must establish the existence of the dismissal. Such an approach raises a number of questions. For example, are such matters really best dealt with as a point in limine prior to any attempt being made to conciliate the matter, or should they form part of the evidence at arbitration in cases where the dispute could not be conciliated? In addition, what is the effect on jurisdiction of a conciliating commissioner’s certificate of outcome indicating that a dispute remains unresolved? Such matters were raised for adjudication in Bombardier Transportation (Pty) Ltd v Lungile Mtiya NO (Unreported Case No. JR 644/09, Labour Court) (“Bombardier”).

scholarly journals The Case Against Specialist Jurisdiction for Labour Law: The Philosophical Assumptions of a Common Law for Labour Relations

1970 ◽  
Vol 19 (1) ◽  
Author(s):  
Nick Wailes
Keyword(s):  
New Zealand ◽  
Common Law ◽  
Labour Law ◽  
Labour Relations ◽  
Academic Literature ◽  
Present Call ◽  
To Come

The aim of this paper is to outline the philosophical assumptions that form the basis of the present call for the abolition of specialist jurisdiction for labour law in New Zealand The discussion here focuses on Epstein's (1983a) "A common law for labour relations ..." because it is the key statement of the case against a specialist jurisdiction, and the conclusions he advances have played an important role in the debate about labour law in New Zealand While academic literature has been largely critical of the call for the abolition of the Employment Court, there have been very few attempts to come to terms with the types of arguments used by the "abolitionists". It is argued that an adequate critique needs to be built on an understanding of the philosophical assumptions that are driving the current changes in labour relations legislation.

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 GOOD FAITH IN FRANCHISE CONTRACT

2020 ◽  
Vol 5 (19) ◽  
pp. 118-127
Author(s):  
Nurli Yaacob ◽  
Nasri Naiimi
Keyword(s):  
Common Law ◽  
Good Faith ◽  
Relational Contracts ◽  
Law System ◽  
Freedom Of Contract ◽  
Term Contract ◽  
The Common ◽  
Definition Of ◽  
The Right

Good faith has been defined as justice, fairness, reasonableness, decency, taking no chances, and so on. The concept of good faith has long been rooted in contract law under the jurisdiction of Civil law, although the definition of it is still debated until today. However, the view of the Common Law tradition does not recognize the concept of good faith as long as the contract is entered into with the freedom of contract and both parties abide by the terms of the contract. Given that a franchise contract involves a long-term contract and always been developed, it is impossible to define both rights and responsibilities base on express terms only. As such, the franchise contract gives the franchisor the right to exercise its discretion in executing the contract. It is in this context that the element of good faith is very important to ensure that the franchisor does not take advantage of the franchisee and that the business continues to prosper. Therefore, the objective of this article is to discuss the concept of good faith in a franchise contract. The findings show that the common law system that initially rejected the application of the concept of good faith also changed its approach and began to recognize the concept of good faith as it is very important for relational contracts such as franchise contracts.

Introduction

2020 ◽  
pp. 1-16
Author(s):  
Wendell Bird
Keyword(s):  
First Amendment ◽  
Common Law ◽  
Freedom Of The Press ◽  
Bill Of Rights ◽  
James Madison ◽  
Broad Definition ◽  
The Press ◽  
Narrow Definition ◽  
The Common ◽  
Definition Of

The “father of the Bill of Rights,” James Madison, described the unqualified words protecting freedoms of speech and press as embodying a broad definition rather than a narrow definition of those liberties. Upon offering those provisions, he said that “freedom of the press and rights of conscience . . . are unguarded in the British constitution,” including the common law, and that “every government should be disarmed of powers which trench upon those particular rights.” In Madison’s draft and in the final First Amendment, each clause was worded to modify or to reject the English common law on point in order to provide for far greater protection of individual liberties; no clause was worded with the restrictions that the common law imposed. Was Madison right? Are freedoms of press and speech in the First Amendment broad or narrow protections?

Family Provision in New Zealand and Australia

2020 ◽  
pp. 450-476
Author(s):  
Nicola Peart ◽  
Prue Vines
Keyword(s):  
New Zealand ◽  
Common Law ◽  
Customary Law ◽  
Indigenous Populations ◽  
Sex Partners ◽  
Same Sex ◽  
Her Family ◽  
Reproductive Techniques ◽  
The Common ◽  
Over Time

New Zealand and Australia are named in that order in the title because New Zealand was the first to develop the discretionary family provision jurisdiction, in 1900, that now applies in New Zealand, Australia, and much of the common law world. This allows courts to make awards to family members from the estate of the deceased. Originally benefitting only the surviving spouse and children, family provision has extended the rules of eligibility in line with changes in the meaning of ‘family’. So as well as spouses, claims can also, in many of the Australasian jurisdictions, be made by civil partners, cohabitants, and same-sex partners. Most jurisdictions have also broadened the class of eligible children to include grandchildren and stepchildren who were being maintained by the deceased as well as children born of new reproductive techniques. Both New Zealand and Australia have significant indigenous populations and their eligibility to claim family provision is modified to accord with their customary law. Over time, the courts have adopted a much broader view of a deceased’s ‘moral duty’ to his or her family, particularly in regard to claims by adult children. The size of awards has increased correspondingly. The chapter discusses this development, as well as the increasing relevance of Indigenous customary law and how the courts deal with disentitling conduct. In view of the greatly expanded scope of family provision in New Zealand and Australia, testamentary freedom may be only an illusion in these jurisdictions.

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