请教一句法律英文--->进

"it would be hard to over emphasise either the contribution made by implied terms in building up the contract of employment or the flexibility and power this operation gives to the judges whose job it is to construe the contract"
请大家帮忙分析下,我实在不是很理解话的意思,请各位高手帮忙分析下行吗?
我要写这个的分析,要讨论,我都快哭出来了:(
谢谢了

都没人知道怎么写吗?前面我明白,我只想有人指点下后面(....or....)

    过分强调扩大劳动合同（雇佣合同）中默认条款的作用和法官解释合同自由裁量权，都是不合适的。

终于有人理我了,先谢谢
我想请问要如何写法官解释合同仲裁权?
好象老师讲的我都没明白,又都是英文讲我都疯了
如果您知道能告诉我一些吗,谢谢

   法官解释合同仲裁权，法院的仲裁权？扑通扑通

谢谢,论文我写完了,我觉得就是法院的最后裁决吧,我把这个部分用案例体现了,反正是写好了,写的我烦死了,中文都没学过的东西让我用英文学:(
上学期是学商法这学期学这个,还好是最后1门法律了,不然还没回国我就挂了,由此很是佩服各位法律专业的学生!也谢谢永远的司考~

有点难

如果大家愿意等我成绩下来我把我的论文贴上来给大家看看
成绩不下来我不敢贴,因为不知道写的对不对,要等老师评判

    届时拜读大作！

要怎么上传?

我的论文成绩回来 60%(40% 过 ^^)
“It would be hard to over emphasize either the contribution made by implied terms in building up the contract of employment or the flexibility and power this operation gives to the judges whose job it is to construe the contract”

Contract of employment is a legally enforceable agreement between an employer and an employee. It can impose duties on both the employer and the employee. They are normally, but not always, written down, and normally you are given your contract before or when you start work. But the courts will rule that a contract exists between you and your employer if you have agreed to perform a task in return for working.

The contract of employment consists of terms from a number of sources, such as express terms, implied terms, statutory terms and terms derived from collective agreement. The main source will usually be an express agreement between the parties, which may be oral or in writing. Some terms of a contract of employment may not be written down, but are implied by law or by custom and practice in your workplace. For example, the employer''s duty to provide a safe, secure and health environment is implied by law into all contracts of employment.

The express terms of a contract of employment are those expressly agreed by the employer and employee, and may be in writing or expressed orally. Even a job advertisement, an application form or a letter of appointment could contain contractual terms, as well as matters orally agreed in the interview. These terms may deal with wages, commissions, hours of work, holidays and so on. The court or tribunal may be called on determine the rights of the parties by interpreting the exact wording of the express terms of a contract of employment. Thus in Cole v Midland Display Ltd.  The employee was a manager employed on a staff basis. The tribunal held that the phrase meat that the employee was entitled to wages during periods of sickness or no work but in return the employee could be required to work overtime with out pay. However in Redbridge London borough council v Fishman , in this case, the teacher was ancillary to her main job, which was as a director of the resource centre. Consequently, the headmaster’s instructions went beyond the strict contractual obligation of the employee, and were therefore unreasonable. The express term in the contract which permits an employee has a right to occupational sick benefits, or there is in force a permanent health insurance scheme, the employer can’t bring to dismiss an employee, and it’s probable that there is also an implied terms that the employer will not dismiss an employee who is off work sick while covered by such a scheme. Aspden v Webb poultry & meat group ltd.  Indicated that this may be the case even where the employee is served with the appropriate period of notice.



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Implied terms that is not written into your contract of employment but is considered to be part of it. As well as the terms you actually agree with your employee, an employment contract can include implied terms.  Implied terms include duty of the employer to provide a secure, safe and healthy environment for employees, employee's duty of honesty and loyal service, an implied duty of mutual trust and confidence between you and your employees that neither side will act in such a way as to breach that trust, a term too obvious to need stating (like that your employee will not steal from you), any terms that are necessary to make the contract workable (for example that someone employed as a driver will have a valid driving licence). Some terms and conditions (eg entitlement to enhanced redundancy pay) may become part of the contract through established custom and practice. The law also imposes some terms automatically, such as the right to paid holidays and the right to receive the national minimum wage.

Implied terms in employment contracts fall into several categories. Terms implied "in fact". These are not necessarily implied into all employment contracts, but will depend on the circumstances of the particular case. They are used by the courts to fill in a gap which the express agreement has failed to cover. A variety of tests are used, the "business efficacy" test and the "officious bystander" test.

Business efficacy
The business efficacy test cannot justify a term which is not necessary to the contract as a whole even if it is necessary in order to make a part of the contract workable (see Scally & ors v Southern Health and Social Services Board ). The part of the contract which was unworkable in this case related to pension provision. However, the House of Lords held that there was a term implied by law instead. In Villella v MFI Furniture Centres Ltd . The High Court implied a term that the employers would not dismiss an employee, save for cause other than ill health, in circumstances which would deprive the employee of benefits under a long-term disability scheme. The clause was necessary "to give business efficacy to the contract to provide disability benefit".
Terms may be implied into employment contracts by custom and practice, in other words if they are customary in a particular trade or locality or at a particular workplace. To constitute a binding custom, a term must be "reasonable, notorious and certain" Henry v London General Transport Services Ltd  is a good case for this point.

The "officious bystander" test
Terms can be implied if it is "something so obvious that it goes without saying”. The test is known as the "officious bystander test" from the case of Shirlaw v Southern Foundries , in which it was said that a term would be implied where it could be said

that "if, while the parties were making their bargain, an officious bystander were to suggest some express provision for it in their agreement they would testily suppress him with a common 'Oh, of course'". The question is whether it would have been obvious at the time the agreement was first entered into, not at the time the dispute arose. It must be a term that would have appeared obvious to both parties (Deeley v British Rail Engineering Ltd ).

The rationale is based on the presumed intention of the parties, although, if a practice is shown to be sufficiently notorious, it does not matter that the employee himself did not know of it or would not have agreed to it. In Sagar v Ridehalgh & Son Ltd.  the Court of Appeal found that there was a custom of making deductions for bad workmanship from the pay of weavers in Lancashire cotton mills. It had been followed for over 30 years at the mill in question and was followed in 85 per cent. of cotton mills in Lancashire. The Court doubted that the employee truly did not know of the custom, but held that he was bound in any case.
Terms implied by law. Sometimes referred to as "characteristic terms", these are not based on the presumed intention of the parties but on a wider test of whether it is a necessary part of a particular type of contract. Sometimes a term will be implied by law, not into all employment contracts but into a limited category of employment contracts. The Scally v Southern Health and Social Services Board  is a good case for this point. A term may be implied in law where it is merely necessary to give effect to an incidental benefit. In Scally v Southern Health and Social Services Board, employees could purchase enhanced pension rights under provisions in a collective agreement, but were not informed of the provisions and so did not take advantage of the right. The House of Lords held that the employers were under a duty to take reasonable steps to inform the employees of a contractual term of which they could not have been expected to be aware. The business efficacy test did not apply because the implied term was not necessary to the working of the contract as a whole. And sometimes, where the employer owes the employee a duty of care, the courts will also express this as an implied term. The term in such cases will not usually go further than the duty of care (see Spring v Guardian Assurance ).
Statute is not a major source of implied terms of employment. An employer and employee are entitled to minimum periods of notice to end the contract. Any contract which does not provide for notice periods, or which allows the contract to be terminated on shorter notice, is varied so that the statutory notice period applies. If the notice given is shorter, an action lies for breach of contract, not breach of the statutory right (see Secretary of State for Employment v Wilson ). In Barber v RJB Mining (UK)

Ltd , the High Court held that this modified the workers' contracts and they were not in breach of contract for withdrawing their labor to prevent working hours over the reference period exceeding that average.
At common law an express term will normally preclude a contradictory implied term. However, the courts have, in some cases, implied a term in apparent contradiction to an express agreement. This may occur, for example, where the express term confers a discretion on the employer and the implied term restricts the exercise of that discretion. In Johnstone v Bloomsbury Health Authority , Dealt with below at Health and safety duties, and also the cases mentioned at Bonuses, pay rises and other benefits.

The implied terms relates to something which the parties have overlooked in drafting the express terms. In Aspden v Webbs Poultry & Meat Group Ltd , dealt with below at Long term sickness and permanent health insurance schemes.
Where statutory terms conflict with the express terms of a contract, the statute will normally provide whether the statutory term takes precedence over any contrary agreement.

The most fundamental duty of the employee is to obey the lawful and reasonable orders of the employer. This implied duty provides a legal basis for "works rules" or "company policies" which are often posted on notice boards or given to employees in handbooks. These do not generally form part of the contract of employment, and as such can be altered unilaterally by the employer for example, Peake v Automotive Products Ltd . The employee must nonetheless obey them, as a result of this implied term.

In Morrish v Henleys  the employee is a van driver, used to take fuel from the company’s pump and fill in the amounts in a book. He noticed that the amounts were being altered; when he protested to the manager he was told not to worry, it was just to make the figures balance. He was unwilling to go along with this, and was eventually dismissed for refusing to leave the entry in its changed condition. He successfully claimed that the dismissal was unfair. Even if it was common practice, as the employer alleged, it could not be a reasonable order. That mean an illegal instruction would not bind the employee, so an employer cannot instruct an employee to drive a lorry without third-party insurance, or to falsify the account books.
As to reasonableness, in Ottoman Bank v Chakarian , the Privy Council held that it was not reasonable for an employee to comply with an instruction to remain in Turkey, where he had been sentenced to death.

Bribes received by reason of employment belong to the employer, even if the employee was not acting in the course of employment at the time. In Reading v Attorney General [1951] AC 507 a soldier took money in return for accompanying lorries carrying illicit liquor, so that the police would not inspect the lorries. Notwithstanding that the Crown had suffered no loss, the House of Lords held him liable to account to the Crown for the money, since he had received it by virtue of his position as a soldier.
Employees are not in general under a duty to report a fellow employee's misconduct or breach of contract. Neither are they under a general duty to report their own misconduct. It is said that the employee has a duty not to steal but is not under a "superadded" duty to confess that he has stolen (Bell v Lever Brothers Ltd .) The rule in Bell is not absolute, and a number of possible exceptions have been identified by the courts.
There are several implied duties of employer, such as duty to pay wage; duty to give reasonable notice; Health and safety duties and so on.
If an employee is willing and able to perform work in accordance with the contract, the employer has an obligation to pay wages, unless there is a contractual right not to do so. In Beveridge v KLM UK Ltd , the employee, who had been on long term sick leave and had exhausted her sick pay entitlement, sought to return to work on the advice of her GP. The employer refused to allow her to work until she had been examined by its own doctor, which took a further six weeks. The EAT held that she was entitled to be paid during those six weeks. Duty to give reasonable notice is a principle of the common law that contracts of indefinite duration can be terminated by either party on giving notice. Of course the employer has a duty to take reasonable care of the health and safety of employees. This duty as an implied term of the contract. The employer must take reasonable steps to provide a safe workplace and a safe system of work. The duty extends to mental health as well as physical health (for example, Walker v Northumberland County Council ). In Gogay v Hertfordshire County Council  the Council suspended a care worker pending investigation into an allegation that she had sexually abused a child in her care. The Court of Appeal held that suspension for an accusation such as that was likely to destroy trust and confidence and should only be made where there is "reasonable and proper cause". In this case, the suspension had been a knee-jerk reaction by the Council.

不知道为什么贴上来后最后一个单词都不在一起了???怎么改也不成,大家凑合下吧. 另外我电脑的这个版本没有结尾,因为结尾在学校写的而且原版在老师那边，所以后面有点不全(不知道为什么所有发的论文都不发回来,只告诉成绩). 再有我不是专业法律的学生，所以写的并不好,因为觉得这个好象挺难，大家似乎都很迷惑,恩....我只是想可能大家能从我的论文里面看到点有用的,所以献丑了,大家别砸我啊(贴上来的好乱哦,真费眼睛,可我笨不会上传,大家将就吧)

你的英语真帮 佩服  过了几级了啊

我没在国内考过级,我在英国读书

在英国的感觉怎么样，跟我们讲讲

我其实还挺喜欢这里的,就是累因为我选的专业比较难是HRM导师要求很高,论文也超多,经常开夜车,几乎每周1篇吧,下周就两篇要交(嘿嘿,不过下周过后就圣诞节,拼了)现在我就在写法的1篇关于DISMISSAL的.
恩, 不太清楚你问在英国感觉是指哪个方面,学习的话就是累,因为我不想挂科学校也不允许挂.生活上嘛,很自在啊,我喜欢这边的人际关系,简单纯粹

听说英国的人们起床都很晚,早上9点才开始一天的生活,下午4点白天的生活就结束了,是这样吗

是早晨9点上班,可这个很正常吧,下班是5,6点
那是因为英国有极昼极夜的现象,冬天4点就黑天了
这些东西国情不一样而已啊

是啊，该死的天气啊．
英国的城市很美，英国人也都很好，你跟我们先谈谈你生活的地方还有周围的邻居吧，跟我们描述描述

晕,那圣诞节放假在说吧,我现在有至少2篇论文近4000字要写

是吗?用英语写论文可要水平,祝你成功.
到时过圣诞照几张相片,发上来我们共同分享分享吧[img]emot/em27.gif[/img]

    9494

这个人写论文去了，也不知道写好一篇没哈哈

看到这里有这么多高手，我决定从今天起向你们学习英语。

我英语老弱了，
就会ABCD，
不知道有什么速成的方法，希望大家指教