The role of judges in the regulation of Australian employment contracts

Abstract

Prompted by the Australian High Court’s decision in Commonwealth Bank of Australia v. Barker,1 this article assesses judicial law-making through terms implied by law in Australian employment contracts. In Barker, the court refused to imply a term of mutual trust and confidence, influenced in part by a judicial disinclination to trespass into the province of the legislature. The article examines what role judges ought to play in regulating Australian employment contracts. It concludes that, following the High Court’s decision in Barker, the symbiotic relationship between statute and the common law ought to be reinvigorated. To facilitate that reinvigoration, the article proposes the creation of statutory default minimum rules for the employment relationship. However, it will also argue that the courts must remain willing to imply terms by law into employment contracts because it is impossible for parliament to predict all future gaps that may need to be filled.