Other external sources
Apart from collective agreements, there may be other external sources of the contract terms. Where a term is obviously lacking , it may be implied into the contract by virtue of the “officious bystander” test. This is a strange creature of the lawyer’s imagination who supposedly overhears the employer discussing with his newly recruited employee, say a bus driver, what the contract terms should be. The bystander does not hear any reference to the employee’s presumed qualification to drive, so he suddenly says, “Is it a term of your agreement that the employee holds a P.S.V. licence?” If the court thinks the answer of both employer an employee to this question would obviously be “Yes,” then such a term is implied into the contract. Secondly, in the interests of “business efficacy,” the court may deem a term to be implicit in the contract to cover an essential area of agreement where no express terms, or term implied from elsewhere, exists.
These two judicial tests to establish the existence or otherwise of an implied term, have been applied in the courts more often in commercial cases than in employment ones. But they are nonetheless available in cases relating to wages.