Legal Effect of Preferential Employment Clause in Collective Agreement - Supreme Court En Banc Decision 2016Da248998 Decided August 27, 2020 -

The Justice ◽  
2021 ◽  
Vol 187 ◽  
pp. 184-227
Author(s):  
Chang-Hyun Lee
Keyword(s):  
Supreme Court ◽  
Collective Agreement ◽  
Legal Effect

The Effect of a Finding That Legislation is Unconstitutional: The Approach of the Irish Supreme Court

2007 ◽  
Vol 36 (3) ◽  
pp. 220-230
Author(s):  
Ailbhe O'Neill
Keyword(s):  
Ab Initio ◽  
Supreme Court ◽  
Common Law ◽  
Constitutional Interpretation ◽  
Temporal Effect ◽  
The Supreme Court ◽  
Legal Effect ◽  
Problematic Aspect ◽  
The Way

A number of common law jurisdictions permit the judiciary to strike down legislation which is inconsistent with that legal system's constitution. The Irish Constitution makes specific provision for this in Article 34.3.2°. The power to declare legislation invalid gives rise to a number of interesting questions concerning the temporal effect of such decisions. In Ireland, the courts have consistently adopted an approach whereby incompatible legislation which postdates the 1937 Constitution is deemed to have been void ab initio. Incompatible legislation originally passed by the British Parliament before 1937 is deemed not to have survived in Irish law from the date of the adoption of the Constitution. This gives rise to interesting issues surrounding the effect of past legal determinations which were based on such legislation. This problematic aspect of constitutional interpretation was considered at length by the Irish Supreme Court in the case of A v The Governor of Arbour Hill Prison (the ‘ A case’) in July 2006. This article explains the approach taken by the Irish courts to this aspect of constitutional interpretation and analyses the way in which the problem of legal effect was approached by the Supreme Court in the A case.

scholarly journals The Unaccepted Repudiation: A Thing Still Writ in Water

2013 ◽  
Vol 44 (1) ◽  
pp. 63
Author(s):  
Lauren Brazier
Keyword(s):  
Supreme Court ◽  
Common Law ◽  
Legal Principles ◽  
The Supreme Court ◽  
Legal Effect ◽  
The Face ◽  
The Common ◽  
Theoretical Issues

This article analyses the recent decision of the Supreme Court in Ingram v Patcroft Properties Ltd concerning the legal effect of an unaccepted repudiation. The issue before the Court was whether, and when, a lease had been successfully cancelled by either party. This involved difficult questions of whether there is a "third choice" in the face of a repudiation, the extent to which a party must be ready and willing to perform if it wishes to cancel a contract, and whether the rules of the common law regarding these issues survived the enactment of the Contractual Remedies Act 1979. The article suggests that the Supreme Court did not adequately address these issues. A failure to pinpoint the precise issue in the case gave rise to a confusing judgment that did not fully address the relevant legal principles and their application under the Act. The article discusses those principles, the theoretical issues concerning their application under the Act, and addresses aspects of the judgment in Ingram v Patcroft Properties Ltd that will make the resolution of future cases more difficult. 

No Certainty and No Justice: The Counterintuitive Effects of Enforcing “No Oral Modification Clauses”

Global Jurist ◽  
2019 ◽  
Vol 19 (2) ◽  
Author(s):  
Joshua Tayar
Keyword(s):  
Supreme Court ◽  
Common Law ◽  
Contract Law ◽  
Basic Principles ◽  
Us States ◽  
Long Run ◽  
Legal Effect ◽  
Uniform Policy ◽  
Uk Supreme Court ◽  
The Uk

Abstract The legal effect of the “No Oral Modification clause” (“NOM clause”) has been described by the UK Supreme Court as a “truly fundamental issue in the law of contract”. Courts in Australia, common law Canada, and many US states had held that the NOM clause, which prescribes that an agreement may not be amended save in writing, is unenforceable. However, in a recent decision, the UK Supreme Court unanimously held that it is enforceable. This Essay seeks to demonstrate that a uniform policy of non-enforcement of the NOM clause is more consistent with the basic principles of contract law and will likely yield greater certainty and justice in the long run.

Unveiling the legal effect of collective agreements in China

2019 ◽  
Vol 42 (2) ◽  
pp. 366-380
Author(s):  
Dong Yan
Keyword(s):  
Trade Unions ◽  
Substitution Effect ◽  
Collective Agreement ◽  
Labour Law ◽  
Content Type ◽  
Collective Agreements ◽  
Legal Effect ◽  
Prior Literature ◽  
Labour Disputes ◽  
Quantitative And Qualitative Methods

Purpose The purpose of this paper is to examine the actual legal effect of collective agreements by focusing on the litigation regarding the implementation of collective agreements in China where current literature on the topic is scarce. Design/methodology/approach This paper deploys both quantitative and qualitative methods to investigate the features of litigation regarding collective agreements. The judgments on collective agreement by people’s courts nationwide from 1 January 2014 to 31 December 2018 provide the primary empirical data. The intrinsic features of collective agreement disputes are investigated to delineate different sorts of theoretically presumed legal effect, namely contractual, normative and other (if any). A number of collective agreement templates and texts have been gathered and analysed to further explore the factors leading to collective agreement disputes. A dozen of labour law professionals, workers, scholars and trade union officials, were interviewed to verify the findings. Findings The number of collective agreement disputes is relatively small compared to the number of valid collective agreements or the volume of other labour disputes. This study found no litigation initiated by trade unions to claim a remedy against a violation of a collective agreement by an employer. However, a growing number of cases were filed by individual workers to complain about the terms and conditions of their individual employment agreements in contradiction to the existing collective agreement. These data do not mean that collective agreements lack problems or have no significance in action. A novel effect – a “substitution effect” – is evident in the existing labour litigations and relatively popular amongst employers, as they often refer to the collective agreement when a written individual agreement, as the mandatory document, is absent. The advent of substitution effect reflects a pragmatic view amongst Chinese labour law professionals, employers and workers. Research limitations/implications Due to the recent establishment of the online judgments database, this study has focused on collective agreement litigation in people’s courts from 2014 to 2018, which is representative of the national trend of such disputes and thus provides valuable insights. Future studies should cover a wider time span and extend to the collective agreement disputes subject to labour arbitration to provide a fuller picture of the challenges and potential solutions. Practical implications By understanding the legal effect of collective agreements in reality, the legislature, workers and employers can act accordingly to enhance or empower it. The insignificant volume of both contractual and normative claims on collective agreements indicates the pressing need to inject something concrete into both substantive rights and the implementation mechanisms of collective agreements. The existence of substitution claims illustrates the room for further implementation of written individual agreements to reduce the need to borrow from collective agreements to fill the void left by the absence of individual agreements. Originality/value This study uniquely evaluates collective agreement disputes in China to seek their true legal effect, finding the substitution effect of collective agreements that was absent from the prior literature. The features of collective agreements are reflected in this work, together with public policy and theoretical implications.

scholarly journals THE STANDARD THEORY OF ADMINISTRATIVE UNLAWFULNESS

2017 ◽  
Vol 76 (2) ◽  
pp. 289-310
Author(s):  
Thomas Adams
Keyword(s):  
Supreme Court ◽  
Main Part ◽  
Public Law ◽  
Standard Theory ◽  
Administrative Action ◽  
The Supreme Court ◽  
Legal Effect ◽  
Administrative Act

AbstractAccording to the standard theory of administrative unlawfulness an act that is public law unlawful is, for that reason, invalid and of no effect in law. In this article I suggest that the theory ought to be rejected. I begin by outlining the standard theory as well as noting its endorsement by the Supreme Court in the case of Ahmed (no. 2). Having in the main part of the paper criticised the theory, I move to lay out an alternative: that unlawfulness signals not the invalidity of an administrative act but a duty on the part of the court to invalidate it. Noting that the alternative rests upon what appears to be a paradox – that unlawful administrative action may nonetheless have legal effect – I try to show why it is more apparent than real. Finally, I return to the decision in Ahmed (no. 2).

scholarly journals KEDUDUKAN PERJANJIAN BERSAMA (PB) TERHADAP PERJANJIAN KERJA BERSAMA (PKB) DALAM HUBUNGAN INDUSTRIAL

2019 ◽  
Vol 2 (1) ◽  
Author(s):  
Muhammad Holy One N Singadimedja
Keyword(s):  
Industrial Relations ◽  
Employment Law ◽  
Employment Relationship ◽  
Collective Agreement ◽  
Employment Relationships ◽  
Collective Agreements ◽  
Labor Agreement ◽  
Legal Effect ◽  
Collective Labour Agreement ◽  
The Relationship

ABSTRAKLegally that the relationship between workers and employers are the same even though the socio-economic position between employees and employers is different, the nature of the employment law has resulted in employment relationships are not always harmonious between workers / unions and employers in industrial relations, the number of employers who eliminate or reduce workers' rights to conduct collective bargaining (PB) to deviate the collective Labour agreement (CLA), whereas in the company there has been a Labour agreement (CLA) is still valid by reason of the collective labor agreement (CLA), which is not in accordance with laws and regulations.The conclusion obtained is that the position of the Collective Agreement (PB) as a Source of Law Autonomous Employment Law is part of the Collective Labor Agreement for the duration of the validity of PKB there are things that do not fit in the employment relationship so it is possible made the Collective Agreement which will then be included in the change PKB with the provisions PB must be registered at the Industrial Relations court, the legal effect of the NT tertentangan with CLA, PB may be declared null and void, cancellation of PB can be done through the judicial land in the area of collective agreements made, since the Industrial Relations court has no competence to resolve disputes cancellation of the Collective Agreement. Keywords: Position, the Collective Agreement, Working Agreement

scholarly journals Classifying Actions in Sentencing Based on the Classifying Criterion “Repeated”: Correlation between Criminal Procedural and Criminal Law Aspects

2021 ◽  
Vol 6 ◽  
pp. 3-11
Author(s):  
Iryna Basysta
Keyword(s):  
Supreme Court ◽  
Criminal Court ◽  
Guilty Verdict ◽  
Criminal Proceedings ◽  
Criminal Proceeding ◽  
The Supreme Court ◽  
Legal Effect ◽  
Procedural Code ◽  
State Of Affairs

Presently, different judicial divisions of the Criminal Cassation Court of the Supreme Court offer varying legal conclusions concerning the possibility to classify the actions of a person when sentencing based on the criterion of classification “repeated” varies. This conclusion follows from the analysis of the judicial Decree as of December 11, 2019 (Proceeding No. 51-4204 км 19, Сase No. 274/2956/17) of the Third judicial division of the Criminal Cassation Court, the Decree of the First judicial division of the Cassation Criminal Court as of July 10, 2018 (Proceeding No. 51-2475 км 18, Case No. 545/3663/16-к), and of the Decree as of February 27, 2019 (Proceeding No. 51-5205 км 18, Case No. 695/136/17) of the Second judicial division of the Criminal Cassation Court.Due to such a state of affairs, the already amalgamated division of the Criminal Cassation Court of the Supreme Court was making its own decision in Case No. 591/4366/18 (Proceeding No. 51-1122 кмо 20) on September 14, 2020. Yet, my opinion is that not all arguments and statements of facts provided in this decree can be agreed on without questions.In the process of the research, it was proved that the situation of the judge’s practicing their discretion powers concerning merging criminal proceedings into one proceeding (according to the requirements of Article 334 of the Criminal Procedural Code of Ukraine) is the only exceptional situation that provides for, in absence of the court’s guilty verdict in “the first criminal proceeding,” which for the legal classification of the repeated offence must take a legal effect, using the criterion of classifying the actions of the accused as “repeated” in the “next criminal proceeding.” Otherwise, we should be discussing violation of the constitutional foundation of presumption of innocence in the criminal proceeding and a securing proof of guilt.

scholarly journals Donazione indiretta e rinuncia di proprietà

2020 ◽  
Keyword(s):  
Supreme Court ◽  
Private Law ◽  
The Public ◽  
Legal Effect

This article deals with the link between two essential topics of Italian Private Law: the donation agreement and the renouncement act. In particular, it’s very important to underline the distinction between a direct donation and an undirect one, according to the fact that the first one requires the public form, while the second one could still be considered with legal effect without it. Furthermore, the analysis will be focused in some of the most important pronunciations of the Italian Supreme Court, in order to understand the key elements of the undirect donations.

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