Employment Contract Law

This subject has the following teaching availabilities in 2016:

This subject has a quota of 30 students. Please refer to the Melbourne Law Masters website for further information about the management of subject quotas and waitlists.

136-150 hours

The pre-teaching period commences four weeks before the subject commencement date. From this time, students are expected to access and review the Reading Guide that will be available from the LMS subject page and the subject materials provided by the subject coordinator, which will be available from Melbourne Law School. Refer to the Reading Guide for confirmation of which resources need to be read and what other preparation is required before the teaching period commences.

Melbourne Law Masters Students: None

JD Students: Successful completion of the below subject:

Applicants without legal qualifications should note that subjects are offered in the discipline of law at an advanced graduate level. While every effort will be made to meet the needs of students trained in other fields, concessions will not be made in the general level of instruction or assessment. Most subjects assume the knowledge usually acquired in a degree in law (LLB, JD or equivalent). Applicants should note that admission to some subjects in the Melbourne Law Masters will be dependent upon the individual applicant’s educational background and professional experience.

The Melbourne Law Masters welcomes applications from students with disabilities. The inherent academic requirements for study in the Melbourne Law Masters are:

• The ability to attend a minimum of 75% of classes and actively engage in the analysis and critique of complex materials and debate;
• The ability to read, analyse and comprehend complex written legal materials and complex interdisciplinary materials;
• The ability to clearly and independently communicate in writing a knowledge and application of legal principles and interdisciplinary materials and to critically evaluate these;
• The ability to clearly and independently communicate orally a knowledge and application of legal principles and interdisciplinary materials and critically evaluate these;
• The ability to work independently and as a part of a group;
• The ability to present orally and in writing legal analysis to a professional standard.

Students who feel their disability will inhibit them from meeting these inherent academic requirements are encouraged to contact Student Equity and Disability Support.

Employment contracts have been a major source of litigation in recent years, with some cases leading to very large payouts. This subject examines the evolving law of employment contracts, and other related kinds of personal work contracts. Drawing on recent cases as well as leading articles by Australian and international scholars, the lecturers consider several key questions. These include determining and varying contract terms, employer and employee duties, non-compete clauses, termination and damages. The subject also looks at the interaction between employment contracts and major statutes, such as the Australian Consumer Law and the Fair Work Act 2009 (Cth). The subject seeks to combine discussions of the practical realities of contracting with a broader analysis of the underlying assumptions in current law.

Principal topics include:

• The scope of employment regulation: Which work relationships are covered?
• The regulation of independent contracting, such as agency relationships
• The content of the employment contract: express terms
• The content of the employment contract: implied terms
• Non-compete clauses and restraint of trade
• Employment, the Competition and Consumer Act 2010 (Cth) and estoppel
• Variation and flexibility in the employment contract
• Termination at common law
• The relationship between contracts, awards and agreements.

A student who has successfully completed this subject will:

• Have an advanced and integrated understanding of the legal principles relevant to the individual employment relationship, including recent developments in this field of law and practice
• Be able to critically examine, analyse, interpret and assess the effectiveness of these legal rules
• Be an engaged participant in debate regarding emerging and contemporary issues in the field, such as recruitment; non-compete obligations; the interaction between express and implied contractual terms; the relationship between policies and employment contracts and the relationship between federal legislation (the Fair Work Act 2009 (Cth) and the Competition and Consumer Act 2010 (Cth)) and employment contracts
• Have a sophisticated appreciation of judicial decision-making in this field, and the factors and processes driving parliamentary approaches to the individual employment relationship
• Have an advanced understanding of situations in which the regulation of the individual employment relationship is relevant in work relationships and management practices
• Have a detailed understanding of the development of Australian employment contract law in an international context
• Have the cognitive and technical skills to generate critical and creative ideas relating to the regulation of the employment relationship, and to critically evaluate existing legal theories, principles and concepts with creativity and autonomy
• Have the cognitive and technical skills to independently examine, research and analyse existing and emerging legal issues relating to employment relationships
• Have the communication skills to clearly articulate and convey complex information regarding the employment relationship to relevant specialist and non-specialist audiences
• Be able to demonstrate autonomy, expert judgment and responsibility as a practitioner and learner in the field of the individual employment relationship.

• Take-home examination (5,000-6,000 words as specified in the subject reading guide) (100%) (7 - 11 July)
  or
• 10,000 word research paper (100%) (17 August) on a topic approved by the subject coordinator

A minimum of 75% attendance is a hurdle requirement.

Specialist printed materials will be made available free of charge from the Melbourne Law School prior to the pre-teaching period.

This subject is not available as a breadth subject.