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The 2 sources of legal obligation, which are relevant in a typical Australia workplace, are Common Law, and Awards and Collective agreements.

Common law is also known as judge-made law. “The courts interpret and apply the laws made by parliaments, and make decision where those laws are unclear or where there is no relevant statue law. The judges’ decisions in cases are recorded in law reports. These decisions set precedents, which are added to the common law.” (Victoria Law Foundation, Chp. 1)

Common law helps to regulate the employment relationship in Australia as follows:
 helps to define the work relationship (whether it is employer-employee relationship)
 helps to perform an interpretive function (i.e. giving meaning to a legislative term in statues)
 helps in ‘filling the gaps’ of legislation (usually imply accepted terms in that industry) e.g. FOB, which means Free On Board in the trading industry
 helps to imply terms into an employment contract (i.e. provided the terms of existing contract is unfair, unreasonable, illegal or unclear)

As the government law did not completely define who employee is, it is up to the judges and court to determine if an individual is deemed as ‘employee’ or independent contractor, depending on factors in the existing contract of employment. This is important for reasons of vicarious liability, tax reasons, legislative protection on employment benefits and superannuation and so on.

Common law deals with unlawful/wrongful dismissal grounds based on contract law. The remedy for wrongful dismissal under common law would be quantum of damages given and no reinstatement. If any termination not following the grounds as contract terms of that employment contract shall be unlawful or wrongful and is a contract breach. This can be referred to in the case of NSW Cancer Council v. Sarfaty (1992).

Common law courts

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