The erosion of the implied term of mutual trust and confidence in Australian employment law

2016 ◽  
Vol 45 (4) ◽  
pp. 275-297
Author(s):  
Vanitha Sundra-Karean
Keyword(s):  
Common Law ◽  
Legal Framework ◽  
Mutual Trust ◽  
Policy Reforms ◽  
Political Climate ◽  
Employment Contracts ◽  
High Court ◽  
The Common ◽  
Interpretive Method ◽  
Employment Rights

Although the implied duty of mutual trust and confidence has long been established as an implied term in employment contracts under English common law, the Australian High Court has recently ruled that it is not part of the common law regulating employment contracts in Australia because the implication of such a term was better regulated under statute. While it is acknowledged that legislation is most effective in regulating substantive employment rights and obligations, a political climate which lends itself to ideologically divergent policy reforms often robs the discipline of its stability. However, if there exists a legal framework apart from legislation, which coheres with it and has the ability to initiate juridical development in the law, as is the role of the common law, the result will be an enrichment of the discipline overall. This paper traces selected English and Australian judicial approaches towards the implication of the duty of mutual trust and confidence in the context of terminations of employment within a statutory regime, culminating with an analysis of the recent Australian High Court decision in Commonwealth Bank of Australia v Barker (Barker), which has diminished common law’s interpretive role in this regard. Consequently, this paper aims to revitalize common law reasoning by utilizing Dworkin’s judicial interpretive method as the necessary theoretical framework.

scholarly journals Employment Rights in an Era of Individualised Employment

2007 ◽  
Vol 38 (3) ◽  
pp. 417 ◽  
Author(s):  
Gordon Anderson
Keyword(s):  
New Zealand ◽  
Real World ◽  
Common Law ◽  
Employment Relationship ◽  
Employment Contracts ◽  
Inaugural Lecture ◽  
Law Faculty ◽  
Contract Of Employment ◽  
The Common ◽  
Employment Rights

On 7 August 2007, Gordon Anderson delivered his inaugural lecture after becoming a professor in the Law Faculty of Victoria University of Wellington. Gordon took as his theme the protection of employees employed on an individual contract of employment. Following the repeal of the award system by the Employment Contracts Act 1991 the majority of New Zealand employees ceased to be covered by collectively negotiated instruments. Instead the contract of employment became dominant. The lecture argued that the common law contract of employment provides little protection for employees. Instead protection depends on some critical statutory interventions that provide a degree of balance within the employment relationship. While not perfect, these protections may be the best that can be expected in the real world of employment.

Bearing the Economic Loss of Industrial Action: The Payment of Striking Employees under the Fair Work Act 2009 (Cth)

2013 ◽  
Vol 18 (2) ◽  
pp. 292
Author(s):  
Karen Wheelwright
Keyword(s):  
Common Law ◽  
Economic Loss ◽  
Court Decision ◽  
Political Climate ◽  
High Court ◽  
Legal Principles ◽  
Industrial Action ◽  
The Common ◽  
The Right

This article aims to elucidate the legal principles governing the right of striking employees in Australia to payment during periods of industrial action. It explains briefly the common law antecedents to the strike pay provisions of the Fair Work Act 2009 (Cth) and discusses in detail a number of decisions that interpret those provisions, including the recent High Court decision in CFMEU v Mammoet, which held that the prohibition on payments to employees who take protected industrial action is confined to the withholding of wages and does not permit employers to withhold other benefits, such as employer-sponsored accommodation. The article argues that, whilst the High Court decision provides a welcome clarification, there is a need for further judicial clarification of the partial work ban provisions in particular. The article discusses the assertions that the Fair Work Act provisions are overly prescriptive and the reasons for this, and suggests that they are unlikely to be relaxed in the current political climate.

Part I Foundations, Ch.2 Settlement

2018 ◽  
Author(s):  
Waugh John
Keyword(s):  
Indigenous Peoples ◽  
Common Law ◽  
Legal Framework ◽  
Land Ownership ◽  
High Court ◽  
Native Title ◽  
The Status ◽  
The Common ◽  
The Law ◽  
Indigenous Land

This chapter explores the law of Australian colonization and its relationship with the laws of Australia's Indigenous peoples. A line of legal continuity links the Australian Constitution to the imposition of British law made during the colonization of Australia and to the decisions of colonial courts that treated the Australian colonies as colonies of settlement. Those decisions, after some initial doubts, displaced the diverse and intricate laws of Australia’s Indigenous peoples, who have occupied the continent for tens of thousands of years. Only in relation to native title to land have later courts made a major reassessment of the status of Indigenous laws. There, the High Court has challenged the factual assumptions of earlier decisions and found accommodation for Indigenous land ownership within the common law, but left the legal framework of colonization otherwise intact.

Contracts and the Implied Freedom of Political Communication

2020 ◽  
pp. 0067205X2097975
Author(s):  
Patrick McCabe
Keyword(s):  
Political Communication ◽  
Common Law ◽  
Employment Contracts ◽  
Out Of Hours ◽  
The Common

This article considers the phenomenon of contractually-imposed restraints on political communication. Such restraints often incidentally arise from broad limits on out-of-hours conduct imposed by employment contracts or from confidentiality or non-disparagement clauses in deeds of settlement. It is argued that the implied freedom of political communication has work to do in relation to at least some categories of such restraints. The various objections to that view are examined and it is argued those objections are not compelling. The article analyses the question of how the implied freedom would operate in respect of contracts that impermissibly burden freedom of political communication, and suggests that this may be achieved by developing the common law of contract to accomodate a doctrine similar to the doctrine governing unreasonable restraints of trade.

8. Employment II: termination—wrongful dismissal, unfair dismissal, and redundancy

2019 ◽  
pp. 114-129
Author(s):  
James Marson ◽  
Katy Ferris
Keyword(s):  
Common Law ◽  
Essential Information ◽  
Employment Contract ◽  
Contract Employees ◽  
Unfair Dismissal ◽  
The Common ◽  
The Law ◽  
Employment Rights ◽  
Wrongful Dismissal

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter reviews the law on the termination of the employment contract. Employees have a statutory right not to be unfairly dismissed and the Employment Rights Act (ERA) 1996 identifies the criteria to be satisfied in order for the employee to gain protection. The common law protects against wrongful dismissal and provides tests and guidance for situations involving a breach of an employment contract. The chapter also considers redundancy situations. As this is governed by statute, it is necessary to appreciate the obligations imposed on the employer to adopt fair procedures.

Dispute Resolution in the Islamic Finance Industry

2020 ◽  
pp. 804-833
Author(s):  
Camille Paldi
Keyword(s):  
Dispute Resolution ◽  
Common Law ◽  
Legal Framework ◽  
Islamic Finance ◽  
Finance Industry ◽  
The Common ◽  
Law Courts

A unique and independent legal framework is important to effectively adjudicate Islamic finance disputes, Sukuk bankruptcies, and Takaful disputes. Currently, these disputes are being adjudicated in common law courts or ineffective arbitration centres where often the Islamic finance transaction is inadvertently converted into a conventional transaction due to the common law nature of the dispute adjudication. In this chapter, a framework is proposed for Islamic finance dispute resolution in the form of the Dubai World Islamic Finance Arbitration Centre (DWIFAC), DWIFAC Jurisprudence Office, the Sukuk Bankruptcy Tribunal (SBT) and the Takaful Tribunal (TT).

Reasoning with the Foundations of Rules

2018 ◽  
Vol 46 (1) ◽  
pp. 49-83
Author(s):  
Duncan Wallace
Keyword(s):  
Common Law ◽  
Legal Rule ◽  
High Court ◽  
Historical Fact ◽  
The Common ◽  
Over Time

In PGA v The Queen, the High Court found that a legal rule ceased to exist well before many people thought it did. In Mabo v Queensland [No 2], the Court found that a legal rule came into existence well before many people thought it did. These conclusions are obviously different, and so are the reasons that led to them. But in both decisions the Court relied on the foundation of a legal rule to account for the rule's validity over time. In PGA, the rule was founded on another legal rule. In Mabo, the rule was founded on an historical fact. I explain how the Court reasoned with these foundations, and what this reasoning suggests about the nature of the common law in Australia.

The Appeals Decision in the ICC's Jean-Pierre Bemba Gombo Case on the Trial Chamber's ‘Decision on the Admission into Evidence of Materials Contained in the Prosecution's List of Evidence’

2012 ◽  
Vol 25 (2) ◽  
pp. 511-520
Author(s):  
CHRISTINE SCHUON
Keyword(s):  
Present Article ◽  
International Criminal Court ◽  
International Criminal ◽  
Common Law ◽  
Civil Law ◽  
Legal Framework ◽  
Trial Chamber ◽  
Criminal Court ◽  
The Common

AbstractWhen, on 3 May 2011, the Appeals Chamber reversed the decision of Trial Chamber III in the Bemba case that had admitted material on a list of the prosecution into evidence, it addressed various central issues related to the admission of evidence under the legal framework of the International Criminal Court (inter alia, the orality principle). The present article critically analyses both decisions. In particular, it views the Trial Chamber's approach that envisages a multi-tiered process of admitting evidence, in light of the approaches of civil law and common law, and expresses concerns about uncertainties and protraction that may result. As the Court's legal framework does not determine that the processing of evidence follow either the civil-law or the common-law model, this is left for the trial chambers to decide in each case. In determining the preferable approach for each respective case, consideration of the procedural context is key. The Appeals Chamber decision allows for the required leeway of the trial chambers in regulating the processing of evidence, to adopt a way that fits the particular circumstances best.

Employment Law in Context

2020 ◽  
Author(s):  
David Cabrelli
Keyword(s):  
Common Law ◽  
Historical Context ◽  
Employment Law ◽  
Labour Law ◽  
Practical Applications ◽  
The Social ◽  
The Common ◽  
Employment Rights ◽  
A Company

Employment Law in Context combines extracts from leading cases, articles, and books with commentary to provide a full critical understanding of employment law. As well as providing a grounding in individual labour law, this title offers detailed analysis of the social, economic, political, and historical context in which employment law operates, drawing attention to key and current areas of debate. An innovative running case study contextualizes employment law and demonstrates its practical applications by following the life-cycle of a company from incorporation, through expansion, to liquidation. Reflection points and further reading suggestions are included. The volume is divided into eight main Parts. The first Part provides an introduction to employment law. The next Part looks at the constitution of employment and personal work contracts. This is followed by Part III, which examines the content of the personal employment contract and the obligations imposed by the common law on employers and employees. The fourth Part is about statutory employment rights. The fifth Part covers equality law. Part VI looks at the common law and statutory regulation of dismissals. The Part that follows considers business reorganizations, consultation, and insolvency. Finally, Part VIII describes collective labour law.

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