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Aspects of the Wage-Work Bargain
Published online by Cambridge University Press: 16 January 2009
Extract
Some apparently elementary questions relating to the content of the contract of employment continue to pose problems for practitioners and academics alike, as recent developments show. These developments focus attention on the employee's right to payment of wages, and how and to what extent this right may be qualified or defeated by two fairly common features of industrial life: temporary absence of the employee from work, and defective performance by the employee of the obligations arising under his contract of employment.
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References
1 For recent attempts to analyse the essence of the wage-work bargain see M. R. Freedland, “The Obligation to Work and to Pay for Work” [1977] C.L.P. 175. Also the same author's The Contract of Employment (1976), Chaps. 2, 4.Google Scholar; Elias, P., “The Structure of the Employment Contract” [1982] C.L.P. 95Google Scholar; McCarry, G. J., “No Work, No Pay” (1983) 57 A.L.J. 378.Google Scholar
2 Contract of Employment, p. 20.
3 “ … was the consideration to be work actually done, or was it to be a readiness and willingness to do work if of ability to do it.” Hancock v. B.S.A. Tools Ltd. [1939] 4 All E.R. 538 at 539–40.Google ScholarCf. Browning v. Crumlin Valley Collieries Ltd. [1926] 1 K.B. 522Google Scholar, per Greer, J. at p. 528: “the consideration for work is wages, and the consideration for wages is work.”Google Scholar
4 Op. cit., p. 102.
5 (1944) 72 C.L.R. 435, 475.
6 [1980] I.C.R. 755. See now The reservations as to certain aspects of the decision in Gunton expressed by May, L.J. in R. v. East Berkshire Health Authority ex pane Walsh, The Times, 12 May 1984.Google Scholar Support for the Gunton approach is to be found in Decro Wall International S.A. v. Practitioners in Marketing Ltd. [1971] 2 All E.R. 216Google Scholar, per Salmon, L.J. at p. 223.Google Scholar
7 George v. Mitchell & King (1943) 59 T.L.R. 153Google Scholar; Woolley v. Allen Fairhead & Sons Ltd. (1946) 62 T.L.R. 294.Google Scholar
8 [1983] I.R.L.R. 360.
9 The term is used here in the second of the three meanings identified by Stoljar, S. J., “The Doctrine of Failure of Consideration” (1959) 75 L.O.R. 53.Google ScholarCf. also The Fibrosa [1943] A.C. 32Google Scholar, per Simon, Lord at p. 48.Google Scholar
10 Hancock v. B.S.A. Tools Ltd. [1939] 4 All E.R. 538Google Scholar; Petrie v. Mac Fisheries [1940] 1 K.B. 258Google Scholar; Mears v. Safecar Security Ltd. [1982] I.R.L.R. 183Google Scholar; Howman & Son v. Blyth, [1983] I.R.L.R. 139.Google Scholar
11 Such mutuality has recently been identified as crucial to the employer—employee relationship, in the sense that the obligation on the employer to offer work and the obligation on the employee to do it is a feature which distinguishes the contract of employment from other arrangements for the performance of paid services: O'Kelly v. Trusthouse Forte pic. [1983] I.R.L.R. 369Google Scholar; Nethermere (St. Neots) Ltd. v. Taverna, [1984] I.R.L.R. 240.Google Scholar
12 [1980] I.R.L.R. 361.
13 At p. 362. His Lordship drew on the analogy of a claim for breach of promise of marriage, and the decision in Jefferson v. Paskel [1916] 1 K.B. 57.Google Scholar
14 At p. 365.
15 Hartley v. Harmon (1840) 11 Ad. & E. 798.Google Scholar
16 Treitel, , The Law of Contract, 6th ed., p. 758.Google Scholar
17 Freedland, , Contract of Employment, p. 271Google Scholar; Goodman v. Pocock (1850) 15 Q.B. 576.Google Scholar
18 Similarly, the duty to mitigate loss arises only in respect of the claim for damages. No question of mitigation arises when wages are claimed.
19 [1977] V.R. 87. See now also Welbourn v. Australian Postal Commission (1984) 52 A.L.R. 669.Google Scholar
20 At p. 91.
21 [1975] 2 All E.R. 233, per Lord, Denning M.R. at p. 240Google Scholar and Stephenson, L.J. at p. 242.Google Scholar
22 There is, of course, room for discussion as to t he meaning of “performance” in this context. For example, an employee who is “on standby” may be said to have earned his wages through performance, even though h e is never actually called upon to perform work during this period.
23 Secretary of State for Employment v. A.S.L.E.F. (No. 2) [1972] 2 Q.B. 455.Google Scholar
24 Faust v. Power Packing Casemakers Ltd. [1983] I.R.L.R. 117Google Scholar; Naylor v. Orion & Smith Lid. [1983] I.R.L.R. 233.Google Scholar
25 Button v. Thompson (1869) L.R. 4 C.P. 330.Google Scholar
26 The problem arises in other systems too. In France it arose recently when schoolteachers (who have the status of civil servants) refused to teach classes of more than 25 pupils, as a means of taking industrial action short of an all-out strike. The decision there (of the highest administrative tribunal, the Conseil d'Étai)—see Dalloz, Receuil, Jurisprudence (1979), p. 298—was that the teachers had a right to be paid their salary, even though what they had done might amount to a disciplinary offence. The analogy with English law is not, however, strong on any technical grounds, since the relationship between the teachers and the state in France cannot be analysed in terms of contract.Google Scholar
27 [1971] 2 All E.R. 666.
28 It was on this basis that the decision in Gorse was distinguished by Walton, J. in Cresswell v. Board of Inland Revenue [1984] I.R.L.R. 190, below.Google Scholar
29 [1972] 2 Q. B. at p. 492. See also the definition given by Buckley, L.J. in Decro Wall International S.A. v. Practitioners in Marketing Ltd. [1971] 2 All E.R. 216 at 232.Google Scholar
30 [1984] I.R.L.R. 190.
31 At p. 198.
32 (1795) 6 T.R. 320.
33 It has been convincingly shown (Matthews, P., “Salaries in the Apportionment Act 1870” [1982] Legal Studies 302Google Scholar) that on its proper construction the Apportionment Act should not be interpreted so as to provide relief from this rule. On the other hand, the significance of this rule of the common law is much reduced by the abandonment of the presumption that, unless otherwise stated, contracts of employment are for a year's duration: Richardson v. Koefod [1969] 3 All E.R. 1264.Google Scholar
34 “Partial Performance of Entire Contracts” (1941) 57 L.Q.R- 373, 381; Freedland, , Contract of Employment, p. 134.Google Scholar
35 Sagar v. Ridehalgh & Sons Ltd. [1931] 1 Ch. 310Google Scholar; Hart v. Riverside Mill Co. [1928] 1 K.B. 176. Because deductions for bad work were seen as relevant to how wages were calculated, there was no infringement of the Truck Act 1831, s.3, in either of the cases cited.Google Scholar
36 The Times, 22 November 1983. (The present discussion is based on the Lexis transcript of the judgment.)
37 Above, p. 342.
38 [1984] I.R.L.R. 184.
39 At p. 188.
40 National Coal Board v. Galley [1958] 1 W.L.R. 16.Google Scholar
41 I am grateful to Dr. John Carter of the University of Sydney for his helpful comments made in the course of the preparation of this paper.