Common law refers to judge-made law, also known as the law of precedence (Skwirk 2012). It also refers to the legal principles developed over the past centuries in the English courts of law; these decisions are considered binding upon lower courts who are mandated to follow the law set forth by the said decisions. Traditions and customs form a vital part of common law (Australian Government 2012).
The establishment of Australia as a British colony influenced the incorporation of common law concepts and principles in the Australian legal system (Mitchell et al. 2012). Both common law and legislature influence the laws set in place and in this case the spotlight is shed on labour law. Labour law refers to the law which administers the rights and duties of employees, employers and trade unions (HR Council for the Nonprofit Sector 2012). Labour law in particular governs the relationship of the stakeholders in the field of employment and matters arising in the course of employment that are essential to the well-being of the stakeholders and their continued relationships. This paper seeks to discuss whether it has been legislation, not common law that has effectively advanced the interests of employees while focusing on Australia as the country in question.
The Australian legal system incorporates both legislature and common law. Australia has in place nine legal systems as established under the Australian Constitution of 1901. These systems are:
- A Federal system
- The Eight State and Territory Systems
The laws set in place by the federal government apply to the whole country while the laws made in the states and territories are in reference to the issues arising in the individual states thus are tailored to meet the specific needs of its inhabitants. Where a conflict arises between federal and state and territorial laws; federal laws reign supreme3 (Australian Government 2012).
Common law is incorporated in the legal system to act as recourse to the available legislation. It derives its roots from years of tradition and the values held in the society. This includes both social and religious principles, which formed the basis of the society (Danuta 1999). Common law gives precedence to public interest when establishing the laws that guides its administration. The courts give consideration to the values, principles and beliefs held by the society in the process of administration of justice. In the settlement of disputes, common law weighs the benefits of an individual against that of the society at large before reaching a decision (Cooray 2012).
The employment law in Australia seeks to cater for the stakeholders of the sector who include the employer, employee and union. These interests are catered for both under common law and the legislation ( Portal Oceania 2012). The advancement of employees is especially given credence as they form the most important stakeholders. Their interests both in making of work contracts; the working environment and, work termination are given considerable consideration (Department of Foreign Affairs and Trade 2012).
The advancement of an employee addresses issues of fairness in the work environment; adherence to safety measures in the workplace, and the provision of a working environment which sets a positive progress in the employment life of an employee. Such advancement can only be facilitated with the establishment of rules and regulations to govern labour relations (Mitchell et al. 2012).
Common law for example, has developed in the law of contract and tort in the sector of employment issues. The employer-employee relationship arises from a contract of employment, which sets down the rights and obligations of each party (Queensland 2012). The courts under the principle of common law are guided by the provisions of the agreement and other employment cases, which set precedence in the cases at hand in determination of matters, such as a termination of the relationship or damages in the case where one party suffers a wrong (Hamilton Howell Bain & Gould 2012).
Other principles that arise under common law include reasonable notice; where the employer has an obligation to provide reasonable notice to an employee prior to termination. The period of notice ranges between one month to one year; this is especially so for non-union workers. The employer in addition, is obligated to provide the employee with cause to justify such termination. This was provided for in the cases of Chapple vs. Umberto Management Ltd. and Panton vs. Everywoman’s Health Centre Society.
The law of torts under common law has developed the concept of employee liability where an employer is held liable for the safety of his workers in the workplace.
As much as common law acts as a source of guidance in the law it falls short as it fails to cater for ad hoc situations. The changes in the society’s values occasioned by the changing times give rise to a vacuum, which common law cannot fill. Legislation in such situations addresses these arising issues (Cooray 2012).
The Australian legislation has in place statutes to cater for the interests of employers, employees and unions. These statutes include inter alia:
- Fair Work Act 2009
- Fair Work (Registered Organizations) Act 2009
- Fair Work Regulations 2009
- Fair Work (Registered Organizations) Regulations 2009
- Fair Work Australia Rules 2010
- Small Business Fair Dismissal Code
- Fair Work (State Declarations—employers not to be national system employers) Endorsement 2009
- Workplace Relations Act 1996
- Workplace Relations Regulations 2006
- Workers’ Compensation and Rehabilitation Act 2003
- The Independent Contractors Act 2006
- The Age Discrimination Act 2004
Most of the statutes are under the auspices of Australia’s Fair Work System, which is a body garnered with the responsibility of catering for the interests of all the stakeholders. Its responsibilities and powers include:
- The setting of the minimum essentials, which employers should adhere to, for example, minimum wages, maximum working hours, termination notice and flexibility in work contracts.
- Collective bargaining carried out in good faith
- Protect workers from unfair dismissals
- Greenfield agreements that sufficiently cater for most of the prospective employees
- Incorporation of National Workplace Relations Systems in the private sector
- Assistance to individuals or groups with a disadvantaged bargaining power
The Independent Contractors Act9caters for independent contractors as opposed to employees. Indetermination of the capacity of a worker whether as an independent contractor or an employee the courts consider factors such as:
- Degree of control
- The source of the tools of trade
- The party shouldering profits or loss
The Act recognizes and protects such work contracts made in the capacity as an independent contractor. The independent contractor’s freedom is protected under the Act and such contracts are not subject to unnecessary interference (Hamilton Howell Bain & Gould 2012).
The Age Discrimination Act10 on the other hand prevents unfair treatment of workers based on their age. It advocates for equal and fair treatment of all workers (Sappideen et al. 2011).
Both the Common law and the Legislature set in place award consideration to the advancement of employees in the workplace. However, it is noteworthy that the common law mainly dwells on foundation issues and values embedded in the traditions of the society. This proves detrimental in catering for modern issues arising due to the changes in the society’s values. Legislation fills these legal gaps by establishing statutes, which cater for arising issues in the workplace, which facilitate the advancement of the modern employee (Fair Work Australia 2011). However, Common law provides essential guidance to legislation, despite its subservient nature to statute law; the common law is a vital supplement to legislation.
Australian Government 2012, Employment and Workplace, Web.
Cooray, M. 2012, Common Law and Statute, Web.
Danuta, M. 1999, Devaluation of a Constitutional Guarantee: The History of Section 51 (XX111A) of the Commonwealth Constitution, Web.
Department of Foreign Affairs and Trade 2012, Legal System, Web.
Fair Work Australia 2011, Fair Work Act, Web.
Hamilton Howell Bain & Gould 2012, Employment Law Topics, Web.
HR Council for the Nonprofit Sector 2012, HR Policies and Employment Legislation, Web.
Mitchell, R, Gahan P, Stewart, A, Cooney S, & Marshall S. 2012, The Evolution of Labour Law in Australia: Measuring the Change, Web.
Portal Oceania 2012, Labour Laws in Australia, Web.
Queensland 2012. Workers’ Compensation and Rehabilitation Act 2003, Web.
Sappideen, C, O’Grady, P, Riley, J, & Warburton, G. 2011. Macken’s Law of Employment 7thed. Thomson Reuters Australia, Limited, Pyrmont.
Skwirk 2012, Red Apple Education Ltd, Statute and Common Law, Web.