The origins of terms implied by law into English and Australian employment contracts

Abstract

ABSTRACT One of the most significant ways that the common law regulates employment contracts is through the implication of terms by law to fill gaps. This article traces the origins and current status of a selection of key terms implied by law into both English and Australian employment contracts. The majority of those terms have been derived from a combination of equity, tort, and the former master and servant regime. At their inception in English employment law, most were recognised as ‘norms’ in the master and servant regime. Only after the employment relationship was recognised as contractual did these norms become accepted as ‘terms implied by law’, both in England and Australia, yet they lacked proper justification as to why. This re-characterisation is problematic: it avoids adequate consideration of whether such terms are truly necessary in all modern employment situations.