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

Paper


Sundra-Karean, Vanitha. 2012. "Common law versus statutory regulation of individual labour rights in Australia: how is the public interest best served?" Roles, Cameron, Stewart, Andrew, Lambropoulos, Victoria and Riley, Joellen (ed.) 6th Australian Labour Law Association Biennial Conference (ALLA 2012): Working in the Public Interest. Canberra, Australia 16 - 17 Nov 2012 Melbourne, Australia.
Paper/Presentation Title

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

Presentation TypePaper
Authors
AuthorSundra-Karean, Vanitha
EditorsRoles, Cameron, Stewart, Andrew, Lambropoulos, Victoria and Riley, Joellen
Journal or Proceedings TitleProceedings of the 6th Australian Labour Law Association Biennial Conference (ALLA 2012)
Year2012
Place of PublicationMelbourne, Australia
Web Address (URL) of Paperhttp://law.anu.edu.au/coast/events/lablaw/conf.html
Conference/Event6th Australian Labour Law Association Biennial Conference (ALLA 2012): Working in the Public Interest
Event Details
6th Australian Labour Law Association Biennial Conference (ALLA 2012): Working in the Public Interest
Event Date
16 to end of 17 Nov 2012
Event Location
Canberra, Australia
Abstract

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.

KeywordsAustralia; government policy; employment law
ANZSRC Field of Research 2020440709. Public policy
520104. Industrial and organisational psychology (incl. human factors)
480104. Labour law
Public Notes

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Byline AffiliationsSchool of Law
Institution of OriginUniversity of Southern Queensland
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