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  • Cited by 1
  • Print publication year: 2017
  • Online publication date: August 2018

Chapter 3 - Introduction to the Fair Work Act

Summary

Introduction

The opening chapters of this book outlined the basics of the contract of employment offer and acceptance are required, as are consideration and certainty of terms. Characterising a contract as being one of either employment (contract of service) or a contract for services (independent contractor) is important. The law has ‘special protections aimed at preventing the misuse of the independent contractor relationship (in other words, stopping one party engaging others in such a way as to avoid paying the entitlements that the law stipulates for employees). Further, the common law implies various duties into the employment contract to some extent there is still debate in Australia on the nature and scope of those duties and the protections they deliver.

Some authors, such as US law professor Stewart Schwab, would argue that the contract of employment is no different from most other contracts and it is not necessary for there to be a sophisticated body of law tailored to governing an employment contract or workplace rela- tionship. However, although the extent of regulation varies from country to country (and the US is at the less interventionist end of the regulatory spectrum), many acknowledge the special nature of the contract of employment: for many, a job is crucial to their identity and is their means of buying food and shelter; being exploited at work can have negative impacts on their health, and depending on the worker's skill set and the economic circumstances of the day, a different job may be difficult to find. And finally, the productivity of the workplace affects society as a whole.

Debates on legal theory, together with the historical and social settings of Australia, have produced the labour and employment law that we have today. That law draws from both common law and statute; it finds a central place for organised labour and a strong national regulator, yet also aspires to promote flexibility and productivity. It is complex and extensive in nature, and in the last twenty or thirty years has seen enormous change. Our system is unique, though it draws on international concepts. It is largely nationally driven, yet has a history of innovation at the State government level.

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