The dynamics of common law evolution

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.