International Journal of Comparative Labour Law and Industrial Relations

Volume 32 (2016)

Volume 32 (2016) / Issue 1

Gordon Anderson, 'The Common Law and the Reconstruction of Employment Relationships in New Zealand' (2016) 32 International Journal of Comparative Labour Law and Industrial Relations, Issue 1, pp. 93–116

Abstract

The theme of the articles in this issue of the journal is the ‘withdrawal’ of the common law courts from areas of labour law regulated by statute, using the rationale that they should not intervene in such areas even if there is no explicit statutory exclusion relating to the point at issue. This article takes a slightly different approach and considers the role played by the New Zealand Court of Appeal following the neoliberal reforms to labour law by the Employment Contracts Act 1991. It argues that the Court, rather than ‘withdrawing’, actively intervened in the development of the law to reinforce the neoliberal reforms and to ensure that the bipartite values that had characterized labour law for most of the twentieth century were displaced by the unitary values of the common law. While approaching the topic from a different perspective, the conclusion is much the same: the courts consistently decline to extend the common law in ways which would have enhanced employee rights against employers, an inhibition noticeably absent when extending the range and scope of duties owed by employees to their employers. This article argues that if employment relationships are to balance adequately the relationship between capital and labour, the autonomy of labour law must be increased through a greater codification, the reinforcement of specialist courts and the minimization of the intrusion of the common law courts into their jurisdiction.

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ISSN: 0952-617X
ID: IJCL2016006