Abstract
| Original language | English |
|---|---|
| Pages (from-to) | 45-68 |
| Number of pages | 24 |
| Journal | International Journal of Comparative Labour Law and Industrial Relations |
| Volume | 32 |
| Issue number | 1 |
| Publication status | Published - 1 Mar 2016 |
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Keywords
- common law
- labour law
- industrial relations
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The dynamics of common law evolution. / Brodie, Douglas.
In: International Journal of Comparative Labour Law and Industrial Relations, Vol. 32, No. 1, 01.03.2016, p. 45-68.Research output: Contribution to journal › Article
TY - JOUR
T1 - The dynamics of common law evolution
AU - Brodie, Douglas
PY - 2016/3/1
Y1 - 2016/3/1
N2 - In Commonwealth Bank of Australia v. Barker [2014] HCA 32 (Barker) the High Court of Australia held that the implied term of mutual trust and confidence was not part of the law of the employment contract in Australia.This article considers the impact that the decision will have on the position of employees at common law and on the way that the law is likely to develop. It suggests that the impact of Barker may be marginalized by the ever increasing importance of good faith in the law of contract and that in assessing the extent to which the common law affords protection for the interests of employees it is imperative to take account of the obligations imposed by the law of tort. Finally, the article explores the dynamics of common law evolution more generally through the prism of Barker. It is suggested that two key factors in determining the manner in which the law develops are the values espoused by the common law and the extent to which statute is allowed to act as a constraint rather than treated as a catalyst.
AB - In Commonwealth Bank of Australia v. Barker [2014] HCA 32 (Barker) the High Court of Australia held that the implied term of mutual trust and confidence was not part of the law of the employment contract in Australia.This article considers the impact that the decision will have on the position of employees at common law and on the way that the law is likely to develop. It suggests that the impact of Barker may be marginalized by the ever increasing importance of good faith in the law of contract and that in assessing the extent to which the common law affords protection for the interests of employees it is imperative to take account of the obligations imposed by the law of tort. Finally, the article explores the dynamics of common law evolution more generally through the prism of Barker. It is suggested that two key factors in determining the manner in which the law develops are the values espoused by the common law and the extent to which statute is allowed to act as a constraint rather than treated as a catalyst.
KW - common law
KW - labour law
KW - industrial relations
M3 - Article
VL - 32
SP - 45
EP - 68
JO - International Journal of Comparative Labour Law and Industrial Relations
JF - International Journal of Comparative Labour Law and Industrial Relations
SN - 0952-617X
IS - 1
ER -