The Implications of implied terms in law in the common law contract of employment

This paper considers the role of implied terms in the common law contract of employment. In the past two decades Anglo-Australian law has witnessed the emergence of a court imposed duty of mutual trust and confidence. For some influential jurists a revamped implied terms doctrine signals the capacity of the common law to achieve fair dealing in the workplace. Such attitudes reflect a belief that contractual jurisprudence is experiencing a quiet revolution in the field of implied employment terms. This paper challenges such views. In particular it dispels the notion that the implied terms doctrine will be a springboard for further legal change, facilitating the reconfiguration of asymmetrical power relationships; the implied terms doctrine is not a countervailing force against the power of capital. A sanguine view of the role implied terms might play is undermined by the operation of the new duty of mutual trust and confidence. It has not expanded the parameters of industrial democracy. Instead, its reach has been whittled down by legal conservatism, and at best constitutes a mechanism for enhancing the voice of workers on procedural matters while having little impact on the unequal distribution of power in the labour process.