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In 2023, of the working population Australia's labour force was 14.2 million, with 1.4 million trade union members, an average annual income of $72,753, 3.8% unemployment and 6.4% underemployment.[1]

Australian labour law concerns Commonwealth, state, and common law on rights and duties of workers, unions and employers in Australia. The main source of law is the Commonwealth (the Australian federal government) Fair Work Act 2009, while state and territory laws can add to protection, and judge-made common law provides a default set of rights. Australian labour law shares a heritage with laws across the Commonwealth of Nations, UK labour law and standards set by the International Labour Organization, the Australian legislature and courts have a built a comprehensive charter of rights at work.

History

See also: History of labour law
The right to work, without punitive fees, was violently suppressed during the Eureka Stockade of 1854, but in the aftermath miners won democratic representation in Victoria's parliament.

Australia's first federal labour rights followed the Constitution of Australia in 1901, yet the law had long regulated work in colonies, often violently suppressing labour freedom. The land of Australia was forcibly settled by British Empire migrants, who achored in Botany Bay and then declared they held possession of the eastern continent in 1780. After losing territory to the United States in the American War of Independence, Britain established a penal colony of 1400 settlers and convicts in Sydney in 1788. Before colonisation, there were around 1.2 million indigenous Australians, but contact with European settlers killed up to 80% of people through smallpox and other diseases.[2] In the Australian frontier wars over the next century, around 115,000 native people were massacred or killed, particularly in Queensland.[3] Indigenous Australian labour was typically organised on hunter-gathering lines, and was cooperative within and between tribes, and through trade among national groups.[4] By contrast, British labour was primarily forced, with a constant supply of prisoners from the British Isles whose crimes were often related to poverty or trying to seek better wages. For example, in the R v Lovelass a group of five farm workers in Tolpuddle, Dorset, who had organised a trade union, were convicted under the Unlawful Societies Act 1799 and sentenced to transportation to Sydney.[5] Mass popular support and protest meant that these five became known as the Tolpuddle martyrs, and they were eventually pardoned.[6] The population tripled to more than a million migrants over the Australian gold rushes of 1851, and protests broke out against the government's attempt to impose a licence fee for working to search for gold (whether or not gold was found). In 1854, when the fee was £2 for 3 months, strict and brutal enforcement led to the Eureka Stockade at Ballarat, where rebels demanded an end to the fee, democratic representation in the government, and took up arms. Though the stockade was broken, and its leaders killed or arrested and put on trial, juries acquitted all, the gold licence fee was replaced with an export duty, and miners won the right to vote in the Victorian Legislative Assembly. Yet labour rights throughout Australian colonies were scant. Laws were systematically discriminatory, particularly based on gender and race, entrenched in the White Australia policy from the Immigration Restriction Act 1901. The right to organise unions was precarious, without any positive right to take collective action for fair work, and there were no legislative rights to fair wages or job security.[7] Instead, responding to the 1890 Australian maritime dispute, the 1892 Broken Hill miners' strike and others, South Australia, New Zealand, New South Wales, and finally the federation sought to replace industrial conflict and strikes with a system of arbitration.[8]

Australia's early laws required "fair and reasonable wages", which the Harvester case said must be enough for "a human being in a civilised community", from a hypothetical collective agreement, or if not employers like HV McKay's Sunshine Harvester Works had to pay a tax on exports.[9]

At Australia's federation in 1901, the Constitution section 51(xxxv) empowered the making of "laws for the peace, order, and good government of the Commonwealth with respect to... conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one state".[10] This was used to pass the Commonwealth Conciliation and Arbitration Act 1904 where a "dispute" would trigger federal jurisdiction between trade unions and employers.[11] The Commonwealth Court of Conciliation and Arbitration (CCCA) could hear disputes, and make "awards" for fair wages and conditions across an industry if there was no agreement reached, or regulate any "industrial matters".[12] With favourable governments in power, some courts were progressive, and in the landmark Harvester case the CCCA determined that the employer, Hugh Victor McKay that made harvesting machinery, was required to pay "fair and reasonable wages", or pay an excise tax on exports, under the Excise Tariff Act 1906. What was "fair and reasonable", said Higgins J depended on "the normal needs of an average employee, regarded as a human being in a civilised community", and this was to be found by imagining a hypothetical collective agreement, not individual bargaining with the "usual, but unequal, contest, the "higgling of the market" for labour, with the pressure for bread on one side and the pressure for profits on the other".[13] This formed the basis of Australian fair work regulation, even though R v Barger in 1908 quickly struck down the Excise Tariff Act 1906, saying the federal tax power could not be used to indirectly regulate working conditions.[14] In 1956, R v Kirby held that the CCCA was an unconstitutional court because it held both judicial and powers to arbitrate disputes.[15] So, to replace the CCCA, a new Commonwealth Conciliation and Arbitration Commission carried out mediation functions, and the Commonwealth Industrial Court assumed its powers and itself merged into the Federal Court of Australia in 1977.[16]

Under the Hawke-Keating government from 1983 to 1996, Australian wages and pensions rose, anti-discrimination laws were strengthened, and superannuation boards had to be elected, but sectoral collective bargaining was weakened.

Australian workers were among the world's wealthiest by the 1980s, but Parliament decided to follow US and UK models to reduce sectoral collective bargaining and awards,[17] believing that it halted "productive innovation".[18] In a 1983 Prices and Incomes Accord between Bob Hawke's Australian Labor Party and the Australian Council of Trade Unions, it was agreed that there should be minimum wage increases across whole sectors, and then further payments if productivity improved at enterprise level.[19] This approach was codified in the Industrial Relations Act 1988, where industry-wide awards only provided a minimum safety net, enterprise bargaining would create certified agreements for higher wages, and unions and employers could take collective action including strikes, if certain conditions were fulfilled.[20] The Industrial Relations Reform Act 1993 added provisions on unfair dismissal, and that non-union workplaces could also make collective agreements, if approved by a special majority, there was "no disadvantage" compared to awards, and workers were adequately informed about the bargain. These Acts relied on the Constitution's trade and commerce, corporations, and external relations powers,[21] rather than the arbitration powers, since the High Court had indicated this was a valid basis for labour laws.[22] Meanwhile, the Gough Whitlam government had passed the first Racial Discrimination Act 1975 that created a right of equal treatment based on race at work, the Sex Discrimination Act 1984 under Hawke prohibited discrimination on the grounds of sex, and together with the rights in the Disability Discrimination Act 1992, and the Age Discrimination Act 2004, complaints could be made to the Australian Human Rights Commission as well as courts for violation of anti-discrimination norms.[23] Also under the Hawke-Keating government, the Superannuation Industry (Supervision) Act 1993 passed to ensure at least equal employee or beneficiary election rights on superannuation boards that provide workplace pensions, although the Abbott government reduced protection by requiring "independent" members selected by the incumbent board.[24]

The Howard government's attacks on labour freedom and unfair dismissal protection led to mass protests against "WorkChoices" legislation, and to the loss of Howard's seat in 2007.

When the Liberal coalition under John Howard regained office, its Workplace Relations Act 1996 reduced the allowable matters for awards to 20 issues, and enabled "Australian Workplace Agreements" to be made between individual employees and workers that could be worse than awards. It also created a freedom "not to associate" with a union and banned union preference clauses in awards. When Howard's supporters won a majority in 2004, they drove through the Workplace Relations Amendment (Work Choices) Act 2005. This abolished industry-wide awards, removed unfair dismissal protection from employees with under 100 staff in their workplaces, trade unions were no longer parties to collective agreements (only bargaining agents), a new set of "Australian Fair Pay and Condititons Standards" applied to all employers and employees, a new "Australian Fair Pay Commission" determined minimum wages, and this overrode all state rights even they were better.[25] The deeply unpopular "Work Choices" led to Howard losing his seat, and the government being booted, in the 2007 federal election. The Fair Work Act 2009 replaced "Work Choices" with a restored system of unfair dismissal rights, individual "AWAs" were replaced with enterprise collective agreements, and minimum conditions of employment were renamed the "National Employment Standards" (NES). The Fair Work Commission oversees enforcement of awards and bargaining, sets industrial awards, minimum wages and resolves disputes including unfair dismissal.[26] This basic structure was not touched by the Abbott, Turnbull and Morrison governments, although wages and standards continued to decline through lack of enforcement, growing casualisation, and hostile judicial decisions. With the Albanese government, a series of reforms, such as the Fair Work Legislation Amendment (Closing Loopholes) Bill, aimed to raise protection, since Australian labour rights remained significantly below European and wealthier countries' standards.[27] This includes the lack of a restored system for sectoral collective bargaining, weak protection for collective action, and absence of rights for workers to elect directors on boards of enterprises, outside isolated examples in universities or the Australian Broadcasting Corporation, 25 per cent of people on "casual" labour contracts that escape basic rights, and stagnating real wages.[28]

Contracts and work rights

See also: European labour law, UK labour law, and US labor law

Scope of rights

See also: Worker, Employee, and Inequality of bargaining power

In international law, "everyone" has the right to fair pay, to equal treatment, to join a union, to take collective action, and to social security including job security.[29] However the scope of who has rights under the Fair Work Act 2009, including for award wages, paid holidays, collective bargaining, and job security, depends on the test for who is an employee, as opposed to an "independent contractor". Historically, this distinction was based on the view that employees have systematically unequal bargaining power,[30] and therefore needed positive legal rights that would otherwise be lost in take-it-or-leave-it contracts that the employer imposed.[31] The common law distinguished employees from the self-employed (who are responsible for their own rights, or fell back on the state), based on the employer's exercise of control, for instance over place or conditions of work.[32] Courts asked whether workers were carrying "on a trade or business of his own",[33] and viewed a contract's terms as obscuring reality, not revealing it. As a court said in 1988: "The parties cannot create something which has every feature of a rooster, but call it a duck and insist that everyone else recognise it as a duck".[34] As well as control, courts looked at multiple factors including whether work was done personally, whether the worker works for others, the method of pay, ownership of equipment, trade marks, good will, and who got profits or bore losses.[35] However, against this tradition, and international standards, the High Court in ZG Operations Australia Pty Ltd v Jamsek overturned the Federal Court to find that drivers who were made to buy their own vehicles were not employees, despite them bearing the employer's trade marks, working only for the company, and doing so for decades.[36] The drivers were originally contracted as employees, but then their contracts were unilaterally altered in 1985-6 to deem them self-employed. Yet in the court's opinion, "the exercise of superior bargaining power... has no bearing on the meaning and effect of the bargains that were struck" and claims against resulting injustice "cannot be made by stealth under the obscurantist guise of a search for the "reality" of the situation".[37] This opinion, meeting with widespread derision,[38] was reversed by the Fair Work Act 2009 section 15AA(1) which states that an employee "is to be determined by ascertaining the real substance, practical reality and true nature of the relationship between the individual and the person" and (2) "regard must be had not only to the terms of the contract governing the relationship, but also to other factors relating to the totality of the relationship including, but not limited to, how the contract is performed in practice."[39] By comparison, wealthier jurisdictions determine employee status and rights based on reality, bargaining power, and the purpose of the law, and disregard inconsistent contract terms.[40]

In FWO v Valuair Ltd (No 2) the Federal Court held that Qantas could use its subsidiary Jetstar to employ foreign workers in Australia on wages lower than Australian staff, undercutting the enterprise agreement.[41]

Consistently enforced labour rights prevent bad employers taking a regulatory subsidy, getting anti-competitive advantages, or evading tax, so the Fair Work Act 2009 section 357 codifies a civil remedy for misrepresentation that a contract is independent, rather than one of employment.[42] However, compared to international standards,[43] misclassification takes most through approval by the courts themselves. There are five main types of case. First, unpaid internships have been allowed, though in one case the limit was two weeks.[44] Second, single person corporations can be easily established and engaged through a commercial (rather than employment) contract,[45] although in ACE Insurance Ltd v Trifunovski the Federal Court held that insurance agents who were made to contract through corporations were still employees, even though they might hire clerical assistants.[46] Third, labour hire (or agency work) arrangements were held in Building Workers' Industrial Union of Australia v Odco Pty Ltd to enable people to be classified as self-employed in relation to the party they truly work for,[47] so that even a 22 year old backpacker doing menial labour on building sites was classed as self-employed.[48] Even where a labour hire agency is set up as an employer's wholly owned subsidiary to evade rights, courts have held this was lawful.[49] Further, in FWO v Valuair Ltd (No 2) the Federal Court held that Qantas could use its wholly owned subsidiary Jetstar, incorporated in New Zealand, to employ foreign workers to work in Australia on wages lower than Australian staff, undercutting the enterprise agreement. In the court's view it was not enough that work was done in Australia, and it mattered that contracts were made in foreign countries with foreign corporations.[50] Fourth, franchisors are subject to obligations under the Trade Practices (Fair Trading) Act 1998 to disclose information, allow franchisees to freely associate, not unfairly terminate contracts, and under the FWA 2009 sections 558A-C they are liable for breaching the Act if they should have been aware and taken preventative steps. The Modern Slavery Act 2018 also contains so called "due diligence" requirements for corporations to prevent forced labour in supply chains, but fails to impose vicarious liability, or personal liability, regardless of the mindset (or wilful ignorance) of directors. Finally, in Gupta v Uber Australia Pty Ltd the Fair Work Commission accepted that an Uber Eats driver was not an employee. The new Fair Work Act 2009 section 15P reverses this by requiring that an "employee-like worker" has the same rights paying regard to "low bargaining power", low pay, and low degree of authority. Employee-like workers and road transport contractors may apply to the Fair Work Commission for a “Minimum Standard Order” or "Guideline", and make collective agreements with a digital labour platform. The orders and guidelines can include terms on payment, deductions, working time, record-keeping, insurance, consultation, representation, delegates’ rights, and cost recovery. Employee-like workers may also apply to the Fair Work Commission for unfair deactivations, unfair terminations, and unfair contracts.

Contracts of employment

Although most Australian workers have a system of rights to support fair work, entry into a work relationship is through a contract based on consent.

  • Relationship of unequal bargaining power
  • No implied term of good faith, or mutual trust and confidence
  • List of implied obligations of employee and employer
  • Independent Contractors Act 2006

Wages, awards and super

See also: Fair Work Act 2009, Modern award, Superannuation in Australia, and History of the minimum wage

While collective bargaining through unions is the main way that Australian workers achieve fair pay, the Fair Work Act 2009 also creates a system of minimum wages depending on the workplace sector. Under FWA 2009 section 14, the Act covers every "national system employer" that may constitutionally be regulated by the Commonwealth is covered, and the gaps were closed by all states referring their powers over industrial matters to the Commonwealth (except Western Australia).[51] First, the Fair Work Commission sets a basic "national minimum wage" each year for all employees not covered by a specific "modern award", as a catch all safety net. From July 2023, the national minimum wage was $23.23 an hour, or $882.80 a week of 38 ordinary hours.[52] Under section 284 its "minimum wage objective" must take into account improving productivity, competitiveness, inflation and employment growth, the need for gender equality, social inclusion through higher employment, the needs of the low paid, and fair wages for junior, training and disabled employees.[53]

Wages in 2024 are overseen by the Fair Work Commission on three levels of (1) a national minimum ($23.23 an hour in 2024), (2) higher "awards" with pay scales based on experience for 150 different sectors, and (3) enterprise agreements between unions and employers in just 15% of workplaces. Given wage stagnation since 2013,[54] the Labor Party has committed to multi-employer sectoral bargaining.

Second, "modern awards" are set by the Fair Work Commission. In 2024 there were 150 covering different workplace sectors.[55] These have fair pay scales depending on employees' experience, qualifications, and skills. For example, the "Legal Services Award 2020" sets minimum weekly rates for "levels 1 to 6" for clerical and administrative staff (but not lawyers), the "Reserve Bank of Australia Award 2016" sets "levels 1 to 5" for annual salaries, and the "Higher Education Industry – Academic Staff – Award 2020" sets a 24 level pay scale with both annual salaries for full-time employees, and comparable minimum hourly rates.[56] These awards are usually far lower than under enterprise bargaining agreements, but are designed to place a minimum floor to prevent unfair competition and the objectives under section 134 such as improving secure work, gender equality, encouraging bargaining and a competitive economy.[57] Under FWA 2009 section 158 an employer, employee, or trade union covered by the award can apply for a variation of an award. However, often "junior" employees under 21 years are paid less, and are exempt in this respect from age discrimination laws,[58] based on the theory that it may reduce youth unemployment, even though experience in New Zealand is that paying young people less does not encourage them to find work, and abolishing junior rates had no impact on youth employment.[59] Moreover, most awards exclude managerial staff, and must exclude based on the "seniority of their role" who were traditionally not covered,[60] while "high income earners", paid over $167,500 in 2023, can agree to be exempt from an award if they have a guarantee of annual earnings.[61] This means that, unless enterprise bargaining covers them, fair pay scales do not reach and constrain rip-off executive pay that diminishes the pay of everyone else. Third, there are enterprise agreements, which are bargained between unions and employers to be higher, and under section 57 will displace any sector-wide award. However in 2012, enterprise agreement coverage reached a peak of merely 27%, and by 2021 coverage fell to 15%,[62] compared to coverages typically over 80% in European Union member states that promote sectoral collective bargaining.[63]

Superfunds control $3.5 trillion in Australian retirement savings. Fund boards must have equal member and employer representation,[64] but shareholder voting power is outsourced to asset managers that vote against worker and union interests, and for escalating executive pay.[65]

As well as basic pay, most awards set rates for working overtime, extra pay for work on sundays or public holidays, and superannuation. For all breaches of modern awards, there are civil remedies.[66] Under FWA 2009 section 323 requires that people are paid in money, rather than in kind (or "truck"). For example, in Australian Education Union v Victoria it was held to be unlawful for the state government to deduct each fortnight between $4 and $17 from salaries of teachers who had been given laptops.[67] Superannuation in Australia provides people with workplace pensions in retirement, and employers must pay a "superannuation guarantee" of 12% of income from 2025 to approved funds.[68] There may also be no unauthorised deductions of wages,[69] and there is a right to be paid at least monthly.[70] Under the Superannuation Industry (Supervision) Act 1993 section 89, the "basic representation rule" is that boards of funds have an equal number of member and employer-appointed trustees, but there may also be "independent" trustees or directors appointed by the incumbent board.[71] By 2023, there were $3.5 trillion in assets under management at Australian superfunds,[72] however the voting rights on corporation shares, which are usually held by super funds, are typically outsourced to asset managers who are not yet bound to any consistent voting policy that reflects the interests of the workforce.

Working time

See also: National Employment Standards, Public holidays in Australia, and Long service leave

Beyond fair pay, a central goal of international labour law is reducing working time in line with rising productivity, so that people work fairer hours in the week, have more holidays, and spend more time in education or retirement, not bound to an employer.[73] Under the Fair Work Act 2009 section 61(2) there are eleven "National Employment Standards", nine of which concern working time (while two are on job security). First, under section 62 the standard maximum working week for a full time employee is 38 hours,[74] and an employer may not request more "unless the additional hours are reasonable", taking account of health, family, workplace needs, any overtime payments, and notice. Under section 139 awards are permitted to, and often do include overtime pay, usually 1.5 times or 2 times the basic rate of pay. In calculating the 38 hour maximum, employees' working time over 26 weeks will be averaged out.[75] Second most important is that employees have a right to at least four weeks' paid leave, or five weeks if the employee is a shiftworker.[76] Third, under sections 114 to 116 there are additional paid public holidays,[77] which vary by state but generally amount to between 8 and 12 extra days, depending on where weekends fall. However, an employer can make a "reasonable" request for employees to work on public holidays, and the employee may only refuse if reasonable, based on factors again including workplace needs, family, overtime rates, and notice.[78] Fourth, there is a right to long service leave which vary by state and award, for instance 2 months paid leave after 10 years in New South Wales.[79]

The Gillard government passed paid parental leave, to share 20 weeks. Research now shows shared leave encourages women to take more paid leave than men, and increases the gender pay gap.[80]

Fifth, there is a disjointed right to paid parental leave under the Paid Parental Leave Act 2010, which entitles both parents to share 20 weeks paid leave (but at least 2 weeks reserved for one). Also under the FWA 2009 section 76 there is a further right to one year, but of unpaid leave, extendable to two years if an employer accepts the request. There are rights to a safe job during pregnancy or paid leave if no job is available, to return to the same position as before or if it does not exist to one "qualified and suited nearest in status", and to be consulted about any proposed changes to the job while on leave.[81] In practice these rules encourage women to take more time off work for child care than men, and so contribute to the gender pay gap as well as the motherhood penalty, compared to countries that have equal paid parental leave for parents on a use-it-or-lose-it basis.[82] Awards and collective agreements often do have higher standards, and the Fair Work Commission is now required by section 134(1)(ab) to take into account "the need to achieve gender equality in the workplace" when exercising its powers. Sixth, there is the right to care or compassionate leave.[83] Seventh, there is a right to community service and jury leave of up to 10 days.[84] Eighth, there is a right to request flexible work for carers and parents with school age children,[85] and only be refused if there are reasonable business grounds.[86] Ninth, there is the right to be offered conversion from casual to permanent status,[87] which is important since 25% of the Australian workforce is casual and these employees suffer systematic discrimination in access to rights.

Casual and atypical workers

See also: Casual employment (contract) and Labour hire

Unlike most other wealthy countries, Australian law enables employers to not provide universal rights, particularly paid holidays and job security, if people are classed as "casual" employees, and in 2023 this meant around 22% of employees (compared to just 15% covered by an enterprise bargaining agreement).[88] Supposedly to compensate for the absence of rights, modern awards typically grant a 25% "casual loading", a practice that has been expressly rejected by courts in the European Union.[89] Under the Fair Work Act 2009 section 15A a casual employee exists if the relationship has an "absence of a firm advance commitment to continuing and indefinite work", replacing the previous notion that an employee simply accepts they do in a contract.[90] This reversed the decision of the High Court in Workpac Pty Ltd v Rossato, that where a contract states someone is casual, even if the employer is providing them with ongoing work in regular and systematic shifts in reality, they are still casual employees and not entitled to paid holidays under FWA 2009 section 86.[91] Casual workers are protected by unfair dismissal after 6 months, or 12 months for a small business, if they are deemed to work 'on a regular and systematic basis' and have a reasonable expectation of continued employment.[92] Since 2021 casual workers must get an offer of a permanent contract offer after 12 months unless there are reasonable grounds to not make the offer.[93]

Other types of atypical work contract include part-time, fixed-term and labour hire staff. First, since the Workplace Relations Act 1996 section 526, awards have been able to provide equal treatment for part-time workers. Unfortunately, part-time workers are often casual and not treated equally. Second, fixed-term staff are treated unequally compared to permanent staff since the simple expiry of a fixed term counts as an unchallengeable reason for dismissal.[94] Third, under the FWA 2009 sections 306C-G there is a limited right to equal treatment for employees contracted through a labour hire firm compared to directly hired employees, after application to the Fair Work Commission, however unlike wealthier countries in Europe the right is not automatic, and unavailable for workers of small businesses.[95]

Union rights and bargaining

Trade unions

  • Organisation, elections
  • Workplace delegates' rights under the Closing Loopholes Bill will include (1) the right to communicate with current or prospective union members (2) reasonable access to the workplace to undertake their delegate duties (3) paid time during normal working hours for delegate training.
  • WRA 1996 freedom of association provisions made the closed shop unenforceable

Worker directors

  • ABC
  • Australia Post
  • University of Melbourne, etc

Collective bargaining

  • FWA 2009, duty to bargain in good faith (removed by WorkChoices, after the IRRA 1993 first referred to the duty to bargain in good faith
  • Extension of collective agreements, in effect, through the award system

Collective action

  • FWA 2009, s. 407 defines protected industrial action in relation to a given enterprise agreement.
  • FWA 2009 s. 413(3) a duty to negotiate before taking strike action
  • FWA 2009 Article 412(6) prohibits industrial action before the expiry of an enterprise agreement.
  • FWA 2009, s 409, notice period before strike action. Also WRA 1996 s 170 MO
  • IRRA 1993 limited right to strike for protected industrial action
  • WRA 1996 s 4 the AIRC’s jurisdiction was limited by the definition of industrial dispute, or matters about the relationship between employers and employees
  • Trade Practices Act 1974, as amended, makes secondary action unlawful - also repressed at common law
  • FWA 2009 limits the ability of employers to do lockouts unless they are defensive, in response to employee claims for a new enterprise agreement.

Equality

Main article: Anti-discrimination laws in Australia
  • Anti-discrimination rules in Fair Work Act 2009
  • Racial Discrimination Act 1975
  • Sex Discrimination Act 1984
  • Disability Discrimination Act 1992
  • Age Discrimination Act 2004
  • Australian Human Rights Commission
  • Anti-Discrimination Act 1977, NSW
  • Equal Opportunity Act 2010, Vic
  • Anti-discrimination Act 1991, Qld
  • Equal Opportunity Act 1984, WA
  • Equal Opportunity Act 1984, SA
  • Anti-Discrimination Act 1998, Tas
  • Discrimination Act 1991, ACT
  • Anti-Discrimination Act, NT

Job security

  • Termination Change and Redundancy Case (1984) established a right of 2 weeks notice before dismissal for workers with between 2 and 3 years’ service, and 3 weeks for those with between 3 and 5 years. Also the right to 7 weeks' redundancy pay for workers with 3 years' service

Fair dismissal

  • FWA 2009 s 383, a 6 month qualifying period is required to claim unfair dismissal (after Work Choices Act 2005 s 643(6))
  • Workplace Relations Act 1996 required just one valid reason for dismissal, reducing protection from Industrial Relations Reform Act 1993 which set out a list of valid reasons for dismissal.
  • FWA 2009 s. 390 the Fair Work Commission can order reinstatement or compensation (updating WRA 1996 s 170CH which allowed courts to reinstate but compensation was normal remedy)
  • FWA 2009 s 530, obligation to inform state employment service if 15 or more people are dismissed for economic reasons

Redundancy

  • IRA 2016 s 126, right to redundancy pay
  • Australian Industrial Relations Commission could intervene in cases where more than 15 employees were made redundant.
  • FWA 2009 imposes a more extensive information and consultation régime

Full employment

  • Reserve Bank of Australia
  • NAIRU reporting

Constitutional and state laws

The conciliation and arbitration power of the Commonwealth was originally based on Section 51(xxxv) of the Constitution of Australia, which states: "The [Commonwealth] Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to... (xxxv) conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one state".[96]

Given how narrow this power was, the Customs Tariff Act 1906,[97] and the Excise Tariff Act 1906 were passed,[98] to exempt manufacturers who paid "fair and reasonable" wages to their employees from these duties. The Commonwealth Court of Conciliation and Arbitration in the Harvester case (1907) was required to determine what were "fair and reasonable" wages, but the High Court of Australia in R v Barger (1908)[99] struck down the government's strategy of using the taxation power to enact labour laws as invalid. The Barger decision was made in the context of the then prevailing reserved State powers doctrine,[100] which was itself overturned in 1920 in the Engineers case.[101]

Since 2005, Australian industrial relations laws, such as WorkChoices, have been primarily based on the corporations power in section 51(xx) of the Constitution,[102] which enables labour laws to be of much wider reach, without the constraints imposed by the conciliation and arbitration power.[96] The corporations power gives the federal parliament power to make laws with respect to "trading and financial corporations formed within the limits of the Commonwealth", as well as 'foreign' corporations.

State law

The Victorian Government has referred most of its industrial relations powers to the Commonwealth, most recently via the Fair Work (Commonwealth Powers) Act 2009 (Vic), resulting in a majority of public sector workers in Victoria being covered by the FW Act.[103]

See also

Notes

  1. ^ 'Labour Force, Australia' (November 2023) abs.gov.au. 'Trade union membership' (August 2022) abs.gov.au. 'Average Weekly Earnings, Australia' (May 2023) abs.gov.uk
  2. ^ NG Butlin, Our original aggression: Aboriginal populations of southeastern Australia 1788–1850 (Allen & Unwin 1983) ch II, 41. P Dowling, Fatal contact: How epidemics nearly wiped out Australia's first peoples (2021) 30-31, Governor Arthur Phillip noting around half the Eora tribe died from smallpox in two to three months.
  3. ^ H Reynolds, Truth-telling (New South Publishing 2021)
  4. ^ J Flood, The Original Australians: The story of the Aboriginal People (Allen and Unwin 2019) 27, 189-97
  5. ^ R v Lovelass (1834) 172 ER 1380, and see E McGaughey, A Casebook on Labour Law (Hart 2019) ch 1, 11-14
  6. ^ S Webb and B Webb, The History of Trade Unionism (1894) ch 3, 144-8
  7. ^ M Quinlan, '"Pre-arbitral" labour legislation in Australia and its implications for the introduction of compulsory arbitration', 25-49, and R Mitchell, 'State Systems of Conciliation and Arbitration: The Legal Origins of the Australasian Model', 74-103, in S Macintyre and R Mitchell, Foundations of Arbitration: The Origins and Effects of State Compulsory Arbitration 1890-1914 (1989)
  8. ^ G Patmore, Australian Labour History (1991) 101-121, referring to a South Australian Bill 1894 that failed because it did not compel parties to register, the NSW Trades Dispute Conciliation and Arbitration Act 1892 (failing for similar reasons), and the NSW Industrial Arbitration Act 1901 (which was compulsory).
  9. ^ Ex parte H V McKay (1907) 2 CAR 1, 3
  10. ^ Constitution (Cth) s 51. Constitution s 51(xxix) is the "external affairs" power, and may give effect to ratified ILO conventions if domestic law is 'appropriate and adapted'.
  11. ^ Jumbunna Coal Mine NL v Victorian Coal Miners Association (1908) 6 CLR 309. The Act applied to industrial disputes "extending beyond the limits of any one State, including disputes in relation to employment upon State railways, or to employment in industries carried on by or under the control of the Commonwealth or a State or any public authority constituted under the Commonwealth or a State".
  12. ^ R v Kelly; Ex parte Victoria (1950) 81 CLR 64, 84, industrial matters for federal awards were about 'the relation of an employer as employer with an employee as employee'. Clerical and public sector employees also included: R v Coldham (1983) 153 CLR 297, Re Australian Education Union (1995) 184 CLR 188
  13. ^ Ex parte H V McKay (1907) 2 CAR 1, 3. Also HB Higgins, 'A new province for law and order: industrial peace through minimum wage and arbitration' (1915) 29(1) Harvard LR 13, 'Give them relief from their materialistic anxiety; give them reasonable certainty that their essential material needs will be met by honest work, and you release the infinite stores of human energy for higher efforts, for nobler ideals."
  14. ^ R v Barger [1908] HCA 43, on the Constitution, s 51(ii)
  15. ^ R v Kirby; Ex parte Boilermakers' Society of Australia [1956] HCA 10
  16. ^ See Conciliation and Arbitration Act 1956 (Cth), and then the Conciliation and Arbitration Act 1973 (Cth) renaming them the Australian Industrial Relations Commission and Australian Industrial Court. Federal Court of Australia Act 1976 (Cth) created the FCA with industrial powers. See also Kirby, Michael. "Abolition of Courts and Non-reappointment of Judicial Officers" (PDF). (1995) 12 Australian Bar Review 181
  17. ^ In the US, see A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935) which struck down sector-wide fair competition codes, including for labour, originally in the National Industrial Recovery Act of 1933 (to be replaced with the Wagner Act), and in the UK, see the Royal Commission on Trade Unions and Employers' Associations (1968) Cmnd 3623
  18. ^ J Riley Munton, Labour law: an introduction to the law of work (OUP 2021) ch 1, 8, "the industry-wide nature of industrial award-making did not encourage competition in generating the productivity improvoements... to compete effectively in global markets. If every workshop and factory must pay the same minimum wages... where is the scope for productive innovation? The so-called 'flow-on effect'..." passed on wage increases "regardless of productivity".
  19. ^ ALP and ACTU, Statement of Accord by the Australian Labor Party and the Australian Council of Trade Unions Regarding Economic Policy (1983) Canberra
  20. ^ n.b. Industrial Relations Act 1988 Schedules 15 and 16 contain extracts of ILO Convention 87 and 98
  21. ^ Constitution ss 51(i), (xx) and (xxix)
  22. ^ Actors and Announcers Equity Association v Fontana Films Pty Ltd (1982) 150 CLR 169, finding the Trade Practices Act 1974 s 45D on secondary boycotts was valid. Victoria v Commonwealth (1996) 187 CLR 353 held the IRRA 1993 valid against a Kennett government challenge, but held the unfair dismissal rules were only supported by the labour and extended corporations powers.
  23. ^ Australian Human Rights Commission Act 1986
  24. ^ Superannuation Industry (Supervision) Act 1993 s 89
  25. ^ NSW v Commonwealth (2006) 229 CLR 1, [2006] HC 52, held valid the use of the Constitution s 109 (that federal law prevails over inconsistent state law on the same subject) for industrial relations legislation. Kirby J and Callinan J dissented. See also Blackshield, Tony (2007). "New South Wales v Commonwealth: Corporations and Connections". Melbourne University Law Review. (2007) 31(3) Melbourne University Law Review 1135.
  26. ^ Fair Work Amendment Act 2012 (Cth) renamed the FWC, previously Fair Work Australia. See also the Fair Work (Registered Organisations) Act 2009.
  27. ^ See generally Cambridge Centre for Business Research, Labour Regulation Index (2023)
  28. ^ A Forsyth, 'There’s one big reason wages are stagnating: the enterprise bargaining system is broken, and in terminal decline (June 1, 2022) The Conversation
  29. ^ Universal Declaration of Human Rights 1948 arts 20-24. International Covenant on Economic, Social and Cultural Rights 1966 arts 6-9
  30. ^ A Smith, An Inquiry into the Nature and Causes of the Wealth of Nations (1776) Book I, ch 8, §12. S Webb and B Webb, Industrial Democracy (1920) Part III, ch 2
  31. ^ F Kessler, 'Contracts of adhesion—Some thoughts about freedom of contract' (1943) 43 Columbia LR 629
  32. ^ Zuijs v Wirth Bros Pty Ltd (1955) 83 CLR 561, 571
  33. ^ Marshall v Whittaker's Building Supply Co [1963] HCA 26 Windeyer J, the "distinction between a servant and an independent contractor ... is rooted fundamentally in the difference between a person who serves his employer in his, the employer’s, business, and a person who carries on a trade or business of his own."
  34. ^ Porter, Re Transport Workers Union of Australia (1989) 34 IR 179 at 184 per Gray J. Australian Mutual Provident Society v Chaplin (1978) 52 AJLR 407, 409. cf CFMMEU v Personnel Contracting Pty Ltd [2020] FCAFC 122, [7]-[8] Allsop CJ, [97]-[117] Lee J.
  35. ^ Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16, approved in Hollis v Vabu Pty Ltd [2001] HCA 44, a bicycle courier was an employee, and the company was vicariously liable. The court asserted the distinction between an employee and independent contractor was primarily governed by common law. Also Prince v Seven Network (Operations) Ltd [2019] NSWWCC 313, [117]-[119] finding a reality TV contestant was an employee for bringing a workplace compensation claim since she was paid weekly, all goodwill went to the network, and she took no entrepreneurial risk. cf Tattsbet Ltd v Morrow (2015) 233 FCR 46, finding that a Tattsbet manager was not an employee, although Tattsbet owned the premises, held all contracts for bills and services, set opening hours, set branding and directed recruitment and discipline of all staff, but the manager's earnings were determined as a share of revenue.
  36. ^ Jamsek v ZG Operations Australia Pty Ltd [2020] FCAFC 119, approving Autoclenz Ltd v Belcher [2011] UKSC 41
  37. ^ [2022] HCA 2, [2] and [62], rejecting the language used in United States v Silk, 331 US 704 (1947)
  38. ^ e.g. E Schofield-Georgeson and J Riley Munton, 'Precarious work in the high court' (2023) 45(2) Sydney Law Review 219
  39. ^ Fair Work Legislation Amendment (Closing Loopholes) Act 2024 Sch 1, Part 15
  40. ^ CBR, Labour Regulation Index (2023) variable A.1
  41. ^ (2014) 224 FCR 415
  42. ^ FWA 2009 s 357, while s 358 bans dismissing someone to re-engage them as self-employed, and s 359 bans making misrepresentations to persuade someone to become self-employed. cf E McGaughey, 'Uber, the Taylor Review, Mutuality, and the Duty to Not Misrepresent Employment Status' (2019) 48(2) Industrial Law Journal 180
  43. ^ See the ILO Employment Relationship Recommendation, 2006 (No. 198). CBR, Labour Regulation Index (2023) variable A.1
  44. ^ Xie v Zhen Xin Yang [2019] SAET 38, [25]-[37] (two weeks unpaid, and successful wage claim for rest of year). cf FWO v Crocmedia Pty Ltd [2015] FCCA 140
  45. ^ Corporations Act 2001 s 114
  46. ^ (2013) 209 FCR 146
  47. ^ (1991) 29 FCR 104
  48. ^ CFMMEU v Personnel Contracting Pty Ltd [2020] FCAFC 122, after [2004] WASCA 312. Also Costello v Allstaff Industrial Personnel (SA) Pty Ltd [2004] SAIRComm 13, holding the employee to have no right against the host employer for unfair dismissal.
  49. ^ Maritime Union of Australia v Patrick Stevedores No 1 Pty Ltd (1988) 77 FCR 456, but attempts failed in FWO v Ramsay Food Processing Pty Ltd [2011] FCA 1176 (sham, corporate veil pierced) and Damevski v Giudice (2003) 113 FCR 438 (simply a payroll sham, ignored for unfair dismissal application).
  50. ^ (2014) 224 FCR 415. Contrast Lawson v Serco Ltd [2006] UKHL 3 (holding test for UK rights coverage depended on having a close connection) and Rome I Regulation in the EU.
  51. ^ FWA 2009 ss 30D and 30N, defining national system employer to include people in referring states. Without states referring, this would mean (1) incorporated bodies not engaged in trade and commerce, e.g. charities and (2) unincorporated employers, e.g. partnerships and sole traders, such as in agriculture. See R Owens, 'Unfinished constitutional business: building a national system to regulate work' (2009) 22 AJLL 258. The external affairs power enables all other employees to be covered, e.g. to implement an ILO Convention.
  52. ^ See FWC, 'The national minimum wage'
  53. ^ FWA 2009 s 284
  54. ^ A Stewart, J Stanford, T Hardy, 'The Wages Crisis Revisited' (May 2022) Australia Institute, 27-30, Figure 14, showing real wages de-coupling sharply from labour productivity from 2013
  55. ^ See www.fwc.gov.au
  56. ^ See the Legal Services Award 2020, Reserve Bank of Australia Award 2016, and Higher Education Industry – Academic Staff – Award 2020
  57. ^ FWA 2009 s 134
  58. ^ FWA 2009 s 153(3). cf Age Discrimination Act 2004 s 25(2)
  59. ^ J Riley Munton, Labour Law (OUP 2021) 102 and D Hyslop and S Stillman, 'Youth minimum wage reform and the labour market' (March 2004) New Zealand Treasury Working Paper 04/03, i, 2
  60. ^ FWA 2009 s 143(7)
  61. ^ FWA 2009 ss 47(2) and 328-33
  62. ^ A Stewart, J Stanford, T Hardy, 'The Wages Crisis Revisited' (May 2022) Australia Institute, 39, Figure 17
  63. ^ Collective Bargaining and Wage Directive 2022 (2022/2041) art 4(2) requires a member state plan if "collective bargaining coverage is less than 80% of the workers".
  64. ^ Superannuation Industry (Supervision) Act 1993 s 89
  65. ^ e.g. 'Two Steps Forward, One Step Back: How Australia’s largest super funds voted on shareholder proposals 2017-2019' (2020).
  66. ^ FWA 2009 s 45 and 539(2)
  67. ^ (2015) 239 FCR 461
  68. ^ See https://www.ato.gov.au/tax-rates-and-codes/key-superannuation-rates-and-thresholds/super-guarantee ato.gov.au]
  69. ^ FWA 2009 ss 324-7
  70. ^ FWA 2009 s 323(1)(c)
  71. ^ Superannuation Industry (Supervision) Act 1993 s 89
  72. ^ See ASFA, 'Super Statistics' (2023)
  73. ^ e.g. the first ILO Hours of Work (Industry) Convention, 1919. cf G Orwell, Animal Farm (1945)
  74. ^ Historically Re Metal Industry Award 1971 (1981) 1 IR 169, Court of Conciliation and Arbitration approved a 38 hour week (a 40 hour week was approved in 1948).
  75. ^ FWA 2009 s 64
  76. ^ FWA 2009 ss 86-87
  77. ^ FWA 2009 s 89 makes paid annual leave days not public holidays
  78. ^ FWA 2009 s 114(4)
  79. ^ FWA 2009 s 113, and state laws, e.g. Long Service Leave Act 1955 (NSW)
  80. ^ C Goldin, SP Kerr and C Olivetti, 'When the Kids Grow Up: Women's Employment and Earnings across the Family Cycle' (August 2022) NBER Working Paper 30323S.
  81. ^ FWA 2009 ss 81-83
  82. ^ C Goldin, SP Kerr and C Olivetti, 'When the Kids Grow Up: Women's Employment and Earnings across the Family Cycle' (August 2022) NBER Working Paper 30323S. S Duffy, D Bowyer, M O’Shea and P van Esch, ‘The fatherhood penalty: how parental leave policies perpetuate the gender gap (even in our ‘progressive’ universities)’ (7 May 2021) The Conversation
  83. ^ FWA 2009 s 107. cf Turner v Mason (1845) 14 M&W 112, 117-8, summary dismissal for leaving the house to visit her dying mother, held employer had the right to dismiss for insubordination.
  84. ^ FWA 2009 ss 109-112
  85. ^ Defined in Carer Recognition Act 2010
  86. ^ FWA 2009 s 65. Compare the UK Employment Rights Act 1996 s 80F, with a clearer enforcement mechanism.
  87. ^ FWA 2009 s 66F(1)(c)
  88. ^ 'Characteristics of Employment, Australia' (August 2023) abs.gov.au
  89. ^ Robinson-Steele v RD Retail Services Ltd (2006) C-131/04, finding rolled up holiday pay to be unlawful.
  90. ^ cf Hamzy v Tricon International Restaurants t/as KFC [2001] FCA 1589.
  91. ^ Workpac Pty Ltd v Rossato [2021] HCA 23, overturning [2020] FCAFC 84. Also Workpac Pty Ltd v Skene (2018) 264 FCR 536.
  92. ^ FWA 2009 s 384(2)(a)
  93. ^ Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021 Division 4A of Part 2-2
  94. ^ Fair Work Act 2009 s 386(2)(a)
  95. ^ See the EU Temporary Agency Work Directive 2008
  96. ^ a b Constitution (Cth) s 51
  97. ^ "Customs Tariff Act 1906". Commonwealth of Australia..
  98. ^ "Excise Tariff Act 1906". Commonwealth of Australia..
  99. ^ R v Barger [1908] HCA 43, (1908) 6 CLR 41.
  100. ^ Zines, L (1981). The High Court and the Constitution. p. 41. ISBN 9781760020248.
  101. ^ Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (Engineers' case) [1920] HCA 54, (1920) 28 CLR 129.
  102. ^ Constitution (Cth) s 51 "The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: (xx) foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth".
  103. ^ Victorian response to Commonwealth Senate Committee on Education, Employment, and Workplace Relations inquiry

References

Books
  • A Stewart, A Forsyth, M Irving, R Johnstone, S McCrystal, Creighton & Stewart's Labour Law (6th edn Federation 2016)
  • E McGaughey, A Casebook on Labour Law (Hart 2019)
  • J Riley Munton, Labour Law: An Introduction to the Law of Work (OUP 2021)
Articles
  • A Forsyth, 'There’s one big reason wages are stagnating: the enterprise bargaining system is broken, and in terminal decline (June 1, 2022) The Conversation
  • P Gahan, 'The Future of State Industrial Regulation: Can We Learn From Victoria?' (2005) Australian Review of Public Affairs
  • D Hyslop and S Stillman, 'Youth minimum wage reform and the labour market' (March 2004) New Zealand Treasury Working Paper 04/03
  • R Owens, 'Unfinished constitutional business: building a national system to regulate work' (2009) 22 AJLL 258
  • E Schofield-Georgeson and J Riley Munton, 'Precarious work in the high court' (2023) 45(2) Sydney Law Review 219
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