Common Law of Employment - Free Paper Sample

Introduction

Common law comprises numerous court decisions that have been practiced for hundreds of years dictated by the superior courts in Australia as other countries have had similar laws. The standard law system makes decisions that bind inferior courts where, for instance, precedents from the High Court of Australia are implemented by the Supreme Court, the District Courts and Local Courts of New South Wales. Like any citizen, employees in Australia have a common law contract of employment, which is either written or unwritten, giving directives on the terms and conditions with their employers (Whalen et al., 2017). The contract between the parties is subject to the Australian government and some level state and territory government, legislative requirements. Employment contracts contain agreements on the workplace place between the employer and the task awards or group of employees serving under him.

Is your time best spent reading someone else’s essay? Get a 100% original essay FROM A CERTIFIED WRITER!

Order now

Employment Agreements

Employment agreements are very distinct from independent contractors' agreements but all operate under the major directives of the Australian law. The essence of the set agreements are to empower and employee to set the ground rules that the operators are to abide by as tailored to their business. On the other hand, the employees are equipped with a sense of responsibility as the agreements' conditions apply to the National Employment Standards (NES) minimum conditions when tried and used thereon. The common law and its guidelines have a limited role in promoting a fair dealing between the parties in an employment relationship. There are more to the parties' agreement than just a general set of rules governing the country's workers' operations. The people are involved in different jobs with diverse qualifications and types of tasks.

Common law, industrial instruments, and legislation are the significant employment law sources where most employees are governed on areas of work as non-discrimination, safety, and health. Employment conditions are used as a metric to assess if the workers are better off overall, depending on the proposed enterprise agreement. Conditions of employees rely majorly on common law and contract of employment principles, more so the employees are not covered by an enterprise or an award agreement. Employment law covers those working on a contract of service rather than a contract of services. Common law highlights a significant difference between employees and independent contractors as they apply a multi-indicia test whose purpose is to assess the totality of the employment relationship.

A drawn line between permanent and casual employees can be significant when assessing whether an employee is entitled to certain benefits (Sundra, 2016). Employment contracts are not necessarily made in writing but rather can also have partial writing and partially oral as long as the employees are given Fair Work Information Statement as they begin their service as directed by NES on their rights. Terms may be implied by law as more important as they involve an employee's duties to do their work in good faith and fidelity to obey lawful and reasonable orders and work with skill diligence. The National Employment Standards are mandated with the authority to set minimum employment standards in various fields, in which there are no set procedures to ensure the employers fully implement (McMahon & Hartmann, 2019). The employees remain on the receiving end of any unsatisfied agreement as their rights are breached and suffer through unfulfilled payments and benefits.

Implied Terms

Time has allowed Australian employees to measure their satisfaction on whether the implied term of mutual trust and confidence exists in their employment contracts. The position is filled with immeasurable doubt and confusion on the common law's capability to protect the people from receiving their due in most places of work (Sora et al., 2019). In Commonwealth Bank of Australia v Barker, the High Court addressed the matter with a claim that there is no such a term. Australian employment has been developed under unfavorable circumstances pinpointing the great significance of having mutual trust and confidence in their employment contracts. It safeguards the unprotected employees when cornered with intolerable conduct with the employers.

The motion being denied by the High Court relinquishes the implementation of common law on employment contracts to the legislature (Leung & Kwok, 2019). Terms implied that they rely on the presumed intention on the parties to have included them to aid govern the agreement had they thought of them at that time as they remain peculiar to that job setting. Terms implied by law are implemented despite the parties' intention to a certain class of contract as the contracts of employment. Parties are unable to predict all future circumstances when entering an employment contract thus creating gaps left by the terms they have agreed on. Implied terms state their essence in such a case as they act as default terms stating the minimum level of obligation even to written and comprehensive employment contracts. Statutory rules lay their focus on regulating Australian employment contracts (Putra, 2020). The parliament is unable to account for the future gaps that may emerge from the numerous contracts the employees are involved in thus proving a weakness for the common law to defend the employees’ fairness to totality.

Terms implied by law have proven their value and acted as a powerful judicial tool to effectively solve challenges on employees that are accompanied by the unplanned gaps in an agreement lading to unfair dismissal. Terms implied by law have their source from the employer-employee relationship, whereby the workers are mandated to security over any damages and injuries they incur while in line of duty. They are guaranteed with a protected place of work with favorable rules that satisfy their work terms (Hadfield & Bozovic, 2016). The workers on return should exercise honesty to their employee, follows the orders given and obey the law in cooperating on their duties. By doing this, the workplace will have a conducive working environment in that both the employee and employers have mutual understanding and protection of the rights.

Mutual Trust and Confidence

Implied terms of mutual trust and confidence are vital as they make the relationship between employer and employee cordial; hence, they work together towards achieving one objective (Golding, 2020). The activities performed to ensure that no party takes advantage of the other over trust-related issues and when employers’ conduct is tolerable. Lack of implied terms of mutual trust and confidence drains an employee's hope after resigning as they are left without a remedy for no proper dismissal.

This can be assumed to have taken part as the Industrial Relations Act demands. An employer is considered to breach any explicit term and repudiate the employment contract after behaving outrageously and destructive. House of Lords in UK employment law dictated that an employer with a reasonable and proper cause has an obligation to conduct himself in a manner likely to destroy the relationship of trust and confidence among the parties (Goldberg & Wilkinson, 2019). Modernization has taken over the employment domain dictating a new era of cooperation between contracting parties but not the former servant-master dynamic. The implied term has put its numerous principles in practice depending on Lord Steyn as he considered its emergence as a sound development.

It is beyond a reasonable doubt that maintaining mutual trust and confidence in employment contract parties is significant among an employment relationship (Fornasier, 2017). Employees avoid working under employers who conduct themselves in manners that can destroy the trust and confidence in the parties' agreement. Equally, the employers do not entertain the performance of any employee who undermines the business goals and objectives through actions of disloyalty. Having the parties' fair demands stated this acts as the anchor to ensure the employment contract contains terms and regulations reflecting the personal employment element.

Jurisdiction accepts the fair obligation whereby it has close relations to the general public to monitor it to act reasonably. The Federal bank was sided and found that for any implied term to be considered an essential statement in High court, and it has to be needed and not just desirable (Fong, & Li, 2017). Federal Courts have initially accepted the existence of the term, indicating the implied term of mutual trust and confidence has a guaranteed enough degree of recognition in Australia, which subjects the court of appeal to acceptance. The University of Western Australia holds the same perspective on the necessity test needed to imply a term by law. They claim that the necessity test can be solved with policy consideration on the nature of the employment agreement's employment relationship.

Contract Construction

High Court has identified a significant challenge sprouting from its reluctance to engage in judicial law-making as they laid a decision that the implication of the mutual trust and confidence term would contain judicial power and intersect with legislated measures (Cooter & Eisenberg, 2015). Statutory frameworks and common law can operate interchangeably without crossing their limits as they have distinct considerations that work independently. Statutory regulations set obligations for the employers to implement minimum entitlements for their workers. Industrial tribunals address the greater good and interest of the people avoiding the interest of contradicting persons. Besides, some people still argue that statutory unfair dismissal scheme is not given the mandate to impact employment contracts. Dismissal is allowed majorly for the employees who have suffered lousy conduct, thus terminating their contracts but claiming statutory dismissal protection.

Earlier, when identifying the implied term, the employee should terminate a contract without giving prior notice as long as they have experienced unreasonable and adverse conduct of their employer, which falls short of repudiation (Cheung et al., 2017). Australian employees are challenged by two main exclusions related to unfair dismissal as a statutory remedy is not for those who receive a high-income threshold in a year. Expected law compensation cannot be approved for a breach of the implied term for any harm related to dismissal behavior as statutory unfair dismissal schemes have regulated the compensations. A consideration to construct an exclusion zone may be termed as excluding mutual trust and confidence from applying to constructive dismissal.

Conclusion

The mutual trust and confidence contracting employee recognition are favorable, making their relation desirable. It impacts the future implications whereby the law of contract is modified to cater for it in general. Revision of implied terms of law priorities in the future is considered to develop the roles in regulation to the employment sector. Testing the necessity of it should be conferred to the contract and is rendered vital and confirmed to be worthy (Carter & Courtney, 2017). Also, it acknowledges the legislature's policy of justice in that it does not involve bias of one party or discrimination in the workplace and that it can only be the personal wish of the employee in case of damage to the relationship. By having mutual trust and confidence in the workplace, all the workers can work together by facilitating performance towards achieving their objectives.