The erosion of the implied term of mutual trust and confidence in Australian employment law: are common law and statute necessarily uncomfortable bedfellows?

Article


Sundra-Karean, Vanitha. 2016. "The erosion of the implied term of mutual trust and confidence in Australian employment law: are common law and statute necessarily uncomfortable bedfellows?" Common Law World Review. 45 (4), pp. 275-297. https://doi.org/10.1177/1473779516669680
Article Title

The erosion of the implied term of mutual trust and confidence in Australian employment law: are common law and statute necessarily uncomfortable bedfellows?

ERA Journal ID33206
Article CategoryArticle
Authors
AuthorSundra-Karean, Vanitha
Journal TitleCommon Law World Review
Journal Citation45 (4), pp. 275-297
Number of Pages23
Year2016
Place of PublicationLondon, United Kingdom
ISSN1473-7795
1740-5556
Digital Object Identifier (DOI)https://doi.org/10.1177/1473779516669680
Web Address (URL)http://journals.sagepub.com/doi/pdf/10.1177/1473779516669680
Abstract

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.

Keywordsmutual trust and confidence, employment law, implied terms, common law and statute coherence, Dworkin, Australia, UK
ANZSRC Field of Research 2020480104. Labour law
Public Notes

Third place winner for the USQ School-Specific 2016 Publication Excellence Awards for Journal Articles - School of Law and Justice.
Permanent restricted access to Published version, in accordance with the copyright policy of the publisher.

Byline AffiliationsSchool of Law and Justice
Institution of OriginUniversity of Southern Queensland
Permalink -

https://research.usq.edu.au/item/q3wx7/the-erosion-of-the-implied-term-of-mutual-trust-and-confidence-in-australian-employment-law-are-common-law-and-statute-necessarily-uncomfortable-bedfellows

  • 1580
    total views
  • 13
    total downloads
  • 0
    views this month
  • 0
    downloads this month

Export as

Related outputs

Judicial power in transplanted common law constitutions: Malaysia's continuing struggle - one step forward, two steps back
Sundra-Karean, Vanitha. 2020. "Judicial power in transplanted common law constitutions: Malaysia's continuing struggle - one step forward, two steps back." Public Law: the constitutional and administrative law of the commonwealth.
Labour's voice in corporate governance – the role of corporate social responsibility in generating change at the Malaysian workplace
Sundra-Karean, Vanitha. 2009. "Labour's voice in corporate governance – the role of corporate social responsibility in generating change at the Malaysian workplace." 19th World Congress of the International Society for Labour and Social Security Law (ISLSSL 2009). Sydney, Australia 01 - 04 Sep 2009
Industrial adjudication – reforms and the future of industrial tribunals in Malaysia: a perspective for individual labour
Sundra-Karean, Vanitha. 2010. "Industrial adjudication – reforms and the future of industrial tribunals in Malaysia: a perspective for individual labour." 1st Annual Employment and Labour Law Conference 2010. Kuala Lumpur, Malaysia 2010
The role of corporate social responsibility and soft law options in the protection of migrant workers' interests in host countries: the case of Malaysia
Sundra-Karean, Vanitha and Syed Ahmad, Sharifah Suhanah. 2012. "The role of corporate social responsibility and soft law options in the protection of migrant workers' interests in host countries: the case of Malaysia." Asian Journal of Social Science. 40 (4), pp. 509-523. https://doi.org/10.1163/15685314-12341245
Common law versus statutory regulation of individual labour rights in Australia: how is the public interest best served?
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.
In defense of soft law and public-private initiatives: a means to an end? - The Malaysian case
Sundra-Karean, Vanitha. 2011. "In defense of soft law and public-private initiatives: a means to an end? - The Malaysian case." Theoretical Inquiries in Law. 12 (2), pp. 465-487.
Is the employment construct a socio-legal or purely economic phenomenon? In search of a redefining theory for employment law
Sundra-Karean, Vanitha. 2013. "Is the employment construct a socio-legal or purely economic phenomenon? In search of a redefining theory for employment law." Foley, Tony (ed.) Annual Australian National University ECR Workshop 2013. Canberra, Australia 14 - 15 Feb 2013 Canberra, Australia.
Labour law reform in Malaysia: challenges and opportunities in a globalized environment
Sundra-Karean, Vanitha. 2010. "Labour law reform in Malaysia: challenges and opportunities in a globalized environment." 23rd Law Association for Asia and the Pacific Conference (LawAsia 2010): Asia's Economic Century: Opportunities and Challenges of Inclusive Growth. New Delhi, India 11 - 14 Nov 2010
Australian constitutional law: commentary and cases
Ratnapala, Suri, Koch, Cornelia, Thomas, John and Karean, Vanitha. 2007. Australian constitutional law: commentary and cases. Melbourne, Australia. Oxford University Press.
Employment law and theory: a Malaysian focus with a comparative perspective
Sundra-Karean, Vanitha. 2012. Employment law and theory: a Malaysian focus with a comparative perspective. Kuala Lumpur, Malaysia. Malaysian Current Law Journal.
Charting new horizons in procedural fairness and substantive fairness in individual employment law
Sundra Karean, Vanitha. 2007. "Charting new horizons in procedural fairness and substantive fairness in individual employment law." Malayan Law Journal. 6, pp. i-xvi.
The constitutional right to livelihood as a developing field in Malaysian labour jurisprudence
Sundra Karean, Vanitha. 2007. "The constitutional right to livelihood as a developing field in Malaysian labour jurisprudence." Malayan Law Journal. 5, pp. lxxxviii-cxxi.