Terms Implied by Law into Employment Contracts: Are They Necessary?

Gabrielle Golding, Terms Implied by Law into Employment Contracts: Are they Necessary? (2015) 28 Australian Journal of Labour Law 113

Posted: 5 Sep 2017

See all articles by Gabrielle Golding

Gabrielle Golding

Monash University, Faculty of Law; University of Adelaide, School of Law, Students

Date Written: 2015

Abstract

Australian courts are faced with competing narrow and wide approaches to the necessity test that is applied when they are asked to imply a new contractual term by law. This complexity stems from the obscure development of the necessity test in England. The recent Australian High Court decision concerning the existence of an implied term of mutual trust and confidence, in Commonwealth Bank of Australia v Barker, appears paradoxically to support both the narrow and wide approaches to the necessity test. This article argues that unless the application of the necessity test is clarified, the courts will likely avoid implying terms by law in employment contracts altogether. This outcome is problematic because gaps in those contracts will remain and need to be filled.

Keywords: Employment law, labour law, contract law, implied terms, employment contract, common law, necessity

Suggested Citation

Golding, Gabrielle, Terms Implied by Law into Employment Contracts: Are They Necessary? (2015). Gabrielle Golding, Terms Implied by Law into Employment Contracts: Are they Necessary? (2015) 28 Australian Journal of Labour Law 113. Available at SSRN: https://ssrn.com/abstract=3029915

Gabrielle Golding (Contact Author)

Monash University, Faculty of Law ( email )

23 Innovation Walk
Wellington Road
Clayton, Victoria 3800
Australia
+61 3 9905 3304 (Phone)

University of Adelaide, School of Law, Students ( email )

Adelaide
Australia

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