Common law versus statutory regulation of individual labour rights in Australia: how is the public interest best served?

Common law versus statutory regulation of individual labour rights in Australia: how is the public interest best served?

This paper argues that the focus of Australian labour law on statutory regulation of individual employment norms has resulted in an over-dependence on statutory solutions to workers' problems. While it is acknowledged that the role of Parliament is crucial to the evolution and maintenance of workers' rights, a political climate which lends itself to ideologically divergent legislative reforms within short spans of time often robs the discipline of its stability and growth if indeed such stability is founded upon legislation. However, if there exists a legal framework apart from legislation, which provides the foundation and ability to initiate juridical development, as is the role of the common law, the result will be an enrichment of the law. I will, in this paper analyse the judicial construct of individual employment law in Australia through an analysis of selected judicial decisions. The focus of the discussion will be upon employment law theories and implied terms. The Australian judicial approach will be contrasted with the approach in other common law jurisdictions. The aim of this paper is to discover areas of potential case law development as it is believed that the public interest is best served by legislative reform built upon a solid common law foundation of individual employment rights rather than case law built around legislative provisions.

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