Opine
Norm Smith Medallist
- Aug 30, 2018
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Yes, please do if you have the time
As abstract as implied rights may be, they form an integral mechanism of our legislative framework; not everything is, nor can be, codified. At its pinnacle, Australians have only one entrenched freedom which, arguably, cannot be removed by lawmakers, but even that is implied; i.e the implied freedom of political expression. It's implied because it's inferable from the very structure of our constitution; our democracy won't function if our ability to express our political views is removed. Other than that, every other right and obligation is posited; and can be diminished in the same way. So when we talk of an implied right, it's a right that, although not expressly stated, may nonetheless be inferred as necessary to facilitate the exercise of some other right or power.
Although now an instrument of contract law, an employment relationship operates in a similar way; in that binding terms need adhere to, for lack of a better expression, a constitutional hierarchy of rights and powers emanating from applicable laws; whether expressed or implied. This is why, the existence of expressed rights and obligations found in work place legislation are accompanied by range of implied duties of employer and employee.
Until relatively recently, the relationship between employer and employee took the form of employer as master and employee as servant; there was a time where an employee was subject to imprisonment for leaving his/her employment. As repugnant as that might seem, there are some persisting features of the master servant relationship in modern employment arrangements; eg employers power to exercise authority over an employee, and the idea that workplace conduct rules can be incorporated by reference as implied terms. Some have referred to the latter in the current public debate concerning the subject of this thread, in support of employer rights; while others have attempted to infer the scope of right of religious expression from the implication that comes from other legislative instruments, in support of employee rights.
The implied duty of mutual trust and confidence, which has received judicial recognition, outside of Australia, is said to derive from the notion that the employment contract is not merely about economic exchanges; but rather reflects broader public concerns relating to equity and fairness. It has been opined that if broadly applied it could potentially rebalance the interests of employer and employee. I regard this as progressive thinking, and believe that proceeding generations will continue to explore and pursue its potential application.
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