The legal treatment of work in the public sector is as significant as it is complex. Smith's 1987 work, Public Sector Employment Law, Professor McCarry's 1988 book, Aspects of Public Sector Employment Law, and the more recent Public Sector Employment in the Twenty-First Century, by Professor Pittard and the late Professor Weeks, are all testament to the difficulties and uncertainties lawyers face when studying and practising in this field.
Smith observes that a major determinant of public sector work is that key terms of work are drawn from statute rather than contract or industrial instrument of the types studied in the previous chapters of this book. To that may be added the fact that public work often entails meeting some public goal – to give frank and fearless advice, if one is a public service employee; to show fierce independence in the meting out of justice, if one is a judge; or to nurture academic freedom, if one is an academic.
This chapter analyses three key areas of public work:
This introduction deliberately uses the term ‘work’ in relation to its treatment of judges and their working conditions. Judges are not employees; they are statutory office-holders. They are appointed under statute and form an independent arm of government – they are not a servant of the elected government of the day.