Fair dealing and the world of work

Brodie, Douglas (2014) Fair dealing and the world of work. Industrial Law Journal, 43 (1). pp. 29-51. ISSN 0305-9332

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    Traditionally, labour lawyers have held that there is a strict dichotomy between employment and commercial law; they regulate relationships which are different in nature and underpinned by different values. The emergence of the implied obligation of mutual trust and confidence can be portrayed as confirming the validity of that dichotomy. It is the contention of this paper that it is now increasingly the case that contracts for the provision of work are underpinned by shared values. One of the strongest manifestations of this process of harmonisation is the fact that obligations of fair dealing are becoming much more prevalent. The paper contends that where contracts for the provision of work are concerned this is most likely to occur where the relationship can be seen as analogous to employment. The paper explores the difficulties involved in determining whether an analogous relationship exists and goes on to discuss the implications of harmonisation for both the employment contract and the contract for services. The relevance of the emergence of the concept of the relational contract is addressed.