Uneasy or Accommodating Bedfellows? Common Law and Statute in Employment Regulation

In 2005, Professor Phillipa Weeks published an insightful chapter entitled ‘Employment Law – A Test of Coherence Between Statute and Common Law’ in S Corcoran and S Bottomley (eds) Interpreting Statutes. That chapter examined the emergence, development and ultimate emasculation of an implied term of trust and confidence in employment, as a consequence of the interaction of judicial reasoning and legislative intervention. At the time, Professor Weeks bemoaned the ‘dismal state’ of Australian common law, and proposed a solution to the apparent incoherence and doctrinal imperfection in the law. This address will pick up the story where Professor Weeks left off, by considering the influence of developments – judicial and statutory – since publication of this important piece, and will revisit possible solutions in the light of those developments.