Australian labour law

In 2023, 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.

Australian labour law sets the rights people have at work, the role of trade unions and employers in collective bargaining, across the Commonwealth and in states. Under the Fair Work Act 2009, the Fair Work Commission creates a national minimum wage and oversees National Employment Standards for fair hours, holidays, parental leave and job security. The FWC also creates modern awards that apply to most sectors of work, numbering 150 in 2024, with minimum pay scales, and better rights for overtime, holidays, paid leave, and superannuation for a pension in retirement. Beyond this floor of rights, trade unions and employers often create enterprise bargaining agreements for higher wages in their workplaces. However, in 2024 collective agreements only cover 15% of employees, while 22% of employees are classified as "casual", meaning that they lose many of the basic protections other workers have.

Equal treatment at work is underpinned by a patchwork of legislation from the Fair Work Act 2009, Racial Discrimination Act 1975, Sex Discrimination Act 1984, Disability Discrimination Act 1992, Age Discrimination Act 2004 and a host of state laws, with complaints possible to the Fair Work Commission, the Australian Human Rights Commission, and state-based regulators. Despite this system, structural inequality from unequal parental leave and responsibility, segregated occupations, and historic patterns of xenophobia mean that the gender pay gap remains at 22%, while the Indigenous pay gap remains at 33%. These inequalities usually intersect with each other, and combine with overall inequality of income and security. The laws for job security include reasonable notice before dismissal, the right to a fair reason before dismissal, and redundancy payments. However many of these protections are reduced for "casual" employees, or employees in smaller workplaces. The Commonwealth government, through fiscal policy, and the Reserve Bank of Australia, through monetary policy, are meant to guarantee full employment but since 1975 and the OPEC oil shocks the previous legal commitment to keeping unemployment around 2% or lower has not been fulfilled. Australia shares similarities with higher income systems, and implements some International Labour Organisation conventions, yet its laws frequently fall below international labour standards.

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 the gold 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. In the Australian frontier wars over the next century, around 115,000 Indigenous people were massacred or killed, particularly in Queensland. Indigenous Australian labour was typically organised on hunter-gathering lines, and was cooperative within and between tribes, and through trade among national groups. 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. Mass popular support and protest meant that these five became known as the Tolpuddle martyrs, and they were eventually pardoned. 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. 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.

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.

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". This was used to pass the Commonwealth Conciliation and Arbitration Act 1904 where a "dispute" would trigger federal jurisdiction between trade unions and employers. 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". 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". 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. In 1956, R v Kirby held that the CCCA was an unconstitutional court because it held both judicial and powers to arbitrate disputes. 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.

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, believing that it halted "productive innovation". 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. 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. 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, rather than the arbitration powers, since the High Court had indicated this was a valid basis for labour laws. 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. 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 enabling "independent" members selected by the incumbent board.

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. 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. 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. 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.

Rights and contracts at work

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

The Fair Work Act 2009 covers most Australian employees with rights such as fair pay scales, 38 hour weeks, overtime, at least 28 days holidays, paid parental leave, superannuation, and job security, but "casual" employees lose many of these rights, and are 22% of workers.

Australian work relationships begin with a contract, and carry basic rights for fair pay and conditions. Most rights are for "employees" (not the self-employed) who are defined by the reality of systematic unequal bargaining power compared to employers, usually organised in a corporate form. By law, rights are more important than contract terms that employers impose. A contract is a deal entered into by consent, and common law and statute set default rights, such as enough hours, a safe system of work, and sometimes good faith. Further, under the Fair Work Act 2009, the Fair Work Commission sets a national minimum wage, a system of minimum pay scales in modern awards, and oversees collective bargaining between unions and employers. The National Employment Standards also set set a floor of rights for a standard maximum 38 hour week, at least 28 to 37 days of annual leave and public holidays, and long service leave. Modern awards set by the Fair Work Commission, for 150 workplace sectors in 2024, must contain terms on working time, consultation before changes, dsiputes, and flexibility, and usually contain further rights such as higher overtime pay, rest breaks, more holidays, and superannuation to ensure people a decent retirement income. There are also rights to paid parental leave, at a minimum of 20 weeks shared between parents, and the FWC has a duty to end the gender pay gap, given the prior failure to equalise and lengthen parental leave in awards and collective agreements. Unlike wealthy OECD countries, Australian law allows employers to designate employees as "casual", and take away universal rights such as paid holidays or job security in return for a nominal 25% extra pay even if they have lowered market pay in practice to nullify this "casual loading": in 2024, 22% of Australian employees were casual, and without basic rights.

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. 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, and therefore needed positive legal rights that would otherwise be lost in take-it-or-leave-it contracts that the employer imposed. 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. Courts asked whether workers were carrying "on a trade or business of his own", 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". 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. 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. 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". This opinion, meeting with widespread derision, 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." 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.

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.

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. However, compared to international standards, 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. Second, single person corporations can be easily established and engaged through a commercial (rather than employment) contract, 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. 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, so that even a 22 year old backpacker doing menial labour on building sites was classed as self-employed. 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. 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. 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
• Commonwealth Bank of Australia Ltd v Barker (2014) 253 CLR 169, uncertainty about an implied term of good faith, or mutual trust and confidence
• FWA 2009 ss 66A-66M, Fair Work Information Statement
• 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

Collective bargaining through unions is the main way that Australian workers achieve fair pay, but the Fair Work Act 2009 also creates a national minimum wage, and minimum scales depending on the workplace sector. FWA 2009 section 14 covers every "national system employer" that may be regulated by the federal constitution, and gaps were closed by all states referring their powers over industrial matters to the Commonwealth (except Western Australia). 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. 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.

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, 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. These have minimum 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. These awards are usually far lower than under enterprise bargaining agreements, but are designed to place a minimum floor to prevent unfair competition. The objectives of the FWC under section 134 are improving secure work, gender equality, encouraging bargaining and a competitive economy. Under FWA 2009 section 158 an employer, employee, or trade union covered by the award can apply for a variation of an award. Often, "junior" employees under 21 years old are paid less, and are exempt in this respect from age discrimination laws, 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. Most awards exclude managerial staff, and must exclude people based on the "seniority of their role" who were traditionally not covered, 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. This means that, unless enterprise bargaining covers them, fair pay scales do not 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%, compared to coverages typically over 80% in European Union member states that promote sectoral collective bargaining.

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

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. 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. 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. There may also be no unauthorised deductions of wages, and there is a right to be paid at least monthly. 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. By 2023, there were $3.5 trillion in assets under management at Australian superfunds, 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, international labour law aims to reduce working time in line with rising productivity, for a fair work week, more holidays, and more education or retirement, unbound to an employer. Under the Fair Work Act 2009 section 61(2) there are eleven "National Employment Standards", and eight concern working time (while one is on casual work, and two are on job security). Like pay can go beyond the national minimum wage, modern awards set by the Fair Work Commission, and collective agreements between unions and employers, often do have higher standards. First, under section 62 the standard maximum working week for a full time employee is 38 hours, 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. 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. Third, under sections 114 to 116 there are additional paid public holidays, 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. 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.

Women traditionally did more child care work than men, a primary cause of the gender pay gap. Since 2010, Australians have only 20 weeks in paid parental leave to share, which encourages women to take more leave than men, developing careers less, compared to countries with equal paid parental leave rights. The Fair Work Commission now has an express duty to reduce gender inequality.

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. 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. When using its powers to set awards, 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". Sixth, there is the right to care or compassionate leave. Seventh, there is a right to community service and jury leave of up to 10 days. Eighth, there is a right to request flexible work for carers and parents with school age children, and only be refused if there are reasonable business grounds.

Casual and atypical workers

See also: Casual employment (contract) and Labour hire

Unlike most wealthy OECD 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). Supposedly to compensate for the absence of rights, modern awards typically grant a 25% "casual loading" but potentially not have any holidays at all, a practice that has been expressly rejected by courts in the European Union. 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. 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. 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, but otherwise risk losing job security rights. 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.

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 employees are often also casual employees and not treated equally regarding holidays and job security, and this has a negative disproportionate impact on women. Second, fixed-term staff are treated unequally compared to permanent staff in that the simple expiry of a fixed term counts as an unchallengeable reason for dismissal, no matter how capriciously or maliciously motivated the reasons are for non-renewal. 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 OECD countries the right is not automatic, and unavailable for workers of small businesses.

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

The Fair Work Commission, the Australian Human Rights Commission, and a patchwork of state regulators protect equality at work. Given structural obstacles, the gender pay gap remains at 21.7% according to employer surveys, and the Indigenous pay gap is over 33%.

Equal treatment is a fundamental right in international law because it has been universally recognised that people should be judged by the content of their character, their skills and knowledge, and not irrelevant characteristics. The Fair Work Act 2009 and a host of federal and state legislation creates the basis for equal treatment claims, especially at work. A claim under the FWA 2009 enables a complaint to the Fair Work Commission, similar to other labour rights. By contrast, claims under the Racial Discrimination Act 1975, the Sex Discrimination Act 1984, Disability Discrimination Act 1992 and Age Discrimination Act 2004 enable a separate path for claims to the Australian Human Rights Commission, created in 1986, which may resolve disputes by conciliation, or if that is unsuccessful claims can go to federal court. Within states, similar systems exist with a watchdog, and appeals to a Tribunal, for instance the Anti-Discrimination Board of NSW and then the NSW Civil and Administrative Tribunal, but claimants cannot bring proceedings at both federal and state level, and so must choose. The FWA 2009 section 27(1A) says that federal law does not exclude state anti-discrimination laws, meaning that greater protection can be provided by states where the federal government has not acted.

Adverse action and exceptions

The Fair Work Act 2009 section 351 enables complaints of discrimination to be made against "an employer" for "adverse action against a person who is an employee, or prospective employee". Independent contractors therefore must bring actions in state law where possible. The grounds for a complaint are based on five groups of protected characteristics, namely (a) race, colour, religion, political opinion, national extraction or social origin, (b) sex, sexual orientation, marital status, (c) age, (d) physical or mental disability, and (e) pregnancy, family or carer responsibility. If a complainant establishes that there is adverse action, and a prohibited ground, the onus of proof shifts to the employer which must prove that their reason for action was not tainted by the person's protected characteristic.

The government of Gough Whitlam passed the first Racial Discrimination Act 1975 to embed equal treatment based on race in workplaces.

A first main exception in section 351(2)(b) is the employer may show adverse action was permitted "because of the inherent requirements of the particular position concerned". For instance, a genuine occupational requirement might be a theatre employer requiring a woman to act in a female part. In one of the leading cases, Qantas Airways Ltd v Christie, a pilot over the age of 60 failed in a claim against Qantas, which had a blanket ban on pilots over the age of 60. The High Court accepted Qantas’ argument that being younger was an inherent requirement because regional aviation regulators restricted pilots over 60, meaning he could not fly internationally. However the High Court also, more controversially, said that he could not be rostered solely for domestic flights because this could impair the employer’s roster management. Similarly controversial, in X v Commonwealth the High Court held in 1999 that it was lawful to dismiss a member of the Australian Defence Forces who was HIV positive, even though he was asymptomatic, on the ground that the illness risked infection of other personnel (even though that it medically untrue). McHugh J said that ‘carrying out the employment without endangering the safety of other employees is an inherent requirement of any employment’ (even though there is medically no danger). A second exception in section 351(2)(c) is that religious organisations with “doctrines, tenets, beliefs or teachings” may take action (even if otherwise adverse) in good faith to avoid injury to the religious susceptibilities of adherents of that religion or creed. According to the High Court in New Faith v Commissioner of Payroll Tax (Victoria) this will include all practices that would protect the “religious susceptibilities” of adherents to that faith.

A third exception in section 351(2)(a) is that employers are exempt from federal law if the action is "not unlawful under any anti-discrimination law in force in the place where the action is taken". In Rumble v The Partnerships the Fair Work Commision held that a law firm consultant, Dr Rumble, could lawfully be dismissed for publicly criticising the Department of Defence for ignoring problems of sexual misconduct in the defence forces, because breach of the firm's media comment policy was a valid reason for dismissal – and this was accepted to be lawful. But Perram J also gave the opinion that if the dismissal had taken place in NSW, which does not protect political opinions, then section 351(2)(a) would have defeated the claim.

Indirect discrimination

Although the Fair Work Act 2009 does not expressly distinguish direct and indirect discrimination as other federal legislation does, and state legislation does, if a rule that is neutral on its face has a disparate impact on one group, this will also be unlawful. For example, in Australian Iron & Steel Pty Ltd v Banovic an employer’s policy for redundancy based on “last in, first off” was held to be indirect discrimination against women, who at that mining workplace has mostly only been recently employed. Similarly in Song v Ainsworth Game Technology Pty Ltd a woman won a claim for indirect discrimination, after she was told she could not work full time, and also use her break time to transfer her child from school to after school care. Such a rule disparately impacted women, especially since it was found that other staff could take cigarette breaks without reducing their work hours.

The Gillard government passed the first protections against discrimination for sexual orientation, gender identity, and intersex status, reforming the Sex Discrimination Act 1984.

Indirect discrimination is often structural, and this is seen in the gender pay gap of 21.7% across the Australian workforce, meaning women employees earn on average 78.3 cents compared to each $1 dollar for male employees, according to the annual employer census. The main reasons for the gender pay gap are sex discrimination in child care and parental leave laws based on "persistent cultural norms that see women as more likely to undertake primary carer duties for children and family", "outright gender-based discrimination at work", "patterns of workforce engagement" and occupational segregation. Under the Fair Work Act 2009 section 302, employees, unions and the Sex Discrimination Commissioner can make an equal pay claim. The first post-2009 cases were brought by unions for social and community service workers, supported by the government. The Fair Work Commission interprets the appropriate comparator narrowly. Before 2009, the Librarians case, librarians were awarded a pay increase since the skill and education levels were comparable to better paid male-dominated industries.

Structural discrimination also underlies much of the race pay gap in Australia. The first time Indigenous employees became legally entitled to equal pay with white workers, in cattle and farming jobs, was through a decision in 1966. The exclusion in the Conciliation and Arbitration Act 1904 section 4 for "persons engaged in domestic service" meant that many Indigenous women and girls employed as domestic staff were excluded. The Racial Discrimination Act 1975 created the first general right against race discrimination. However, the median adjusted weekly household income for Indigenous Australians over 15 in 2019 was just $623 compared to $935 for non-Indigenous residents, a 33.3% race pay gap. There are not yet clear principles established to ensure that historic disadvantage is undone, as in South Africa, India, or Europe.

Positive action

See also: Affirmative action and Positive action

Positive action is designed to remedy historical disadvantage, but Australia has very few measures at federal level. Under the Disability Discrimination Act 1992 sections 4 to 6 require that an employer must make reasonable adjustments to accommodate people with disabilities at work. However, under section 11 the employer may escape this duty if they show that it would impose an unjustifiable hardship, taking account of the expenses and the employer’s capacity to afford it. For example, in Daghlian v Australian Postal Corporation it was held to be a reasonable adjustment that the employer provided a stool for a worker who would otherwise usually be required to stand. This modifies the “inherent requirements” defence found in section 21A(1)(b).

Job security

Job security, as part of social security, is a universal human right in international law, and with full employment it is the basis of economic stability and prosperity. Most Australian employees are entitled to reasonable notice before any dismissal, fair reasons and a procedure before being dismissed, and a redundancy payment. Both state and federal governments have a duty to ensure full employment through fiscal policy, while by law the Reserve Bank of Australia must also achieve a stable currency, full employment, and prosperity and welfare for the people of Australia.

Notice and fair dismissal

In Australian law, most employees have the right to reasonable notice before dismissal, and dismissals must be for a fair reason, however these rights are not universally upheld. At common law, everyone has the right to reasonable notice before either side terminates a contract, The longer that people work for an employer, the more notice becomes reasonable, reflecting the concept of mutual respect. For example, in Quinn v Jack Chia (Australia) Mr Quinn had been initially hired on a contract with a one month notice, but had worked for years, taking on senior responsibilities, and making personal sacrifices for his employer. The court held he was entitled to 12 months, not one month as the contract had said, given his length of service, seniority and dedication over the years. As well as these common law standards, the Fair Work Act 2009 section 117 requires a bare minimum of 1 week's notice before 1 year, 2 weeks' notice for 2 years, 3 weeks' notice for over 3 years, and 4 weeks' notice for over 5 years, but also an extra week for employees over 45 years old who have worked more than 2 years. Modern awards can and often do have higher standards, and so do collective agreements. The dominant view is that courts may find greater notice is warranted where the facts speak in favour, because statute's purpose is to create a floor of rights, not a ceiling, that common law may improve upon, not undercut. An employer may give pay in lieu of notice under section 117(2) and terminate the contract if this has been accepted by the employee.

• 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

See also: Layoff

Dismissals for redundancy means that a job is no longer economically necessary for an employer's operations. To ensure the power of dismissal is not misused, the law attempts to ensure that the social costs of unemployment and dislocation are factored into the employer's decisions. Under the Fair Work Act 2009 section 531(2), employers must consult with unions if they contemplate that 15 or more jobs could be redundant, and under section 530 the employer must also give written notice to Centrelink of any prosposals. The goal of the law is to avoid job losses, and so under section 531(3) the employer must consult unions on proposals on "measures to avert or minimise the proposed dismissals", alternative employment or mitigating adverse effects of propsed redundancies. If redundancies must take place, the National Employment Standard in section 119 requires minimum redundancy payments of at least 4 weeks' pay for employees that have worked over 1 year to 16 weeks' pay for people with at least 9 years' work, while those over 10 years' work may take advantage of long service leave and redundancy pay. However, employees can not take redundancy if they have been offered an acceptable alternative job. There are also a series of arbitrary exceptions to redundancy rights. Employees of employers with under 15 staff get nothing, on the theory that small businesses need protection more than workers. Casual, trainee and weekly fixed term employees are also excluded from protection, even though this means around 22% of the Australian workforce.

• Byrne v Australian Airlines (1995) 185 CLR 410, implied terms and termination, change and redundancy clause - fair procedure to be followed before dismissal. Claim not to be summarily dismissed. Awards were not implied terms and did not lead to expectation-based damages.

Full employment

See also: Unemployment

The Reserve Bank of Australia is meant to use its monetary policy powers for a stable currency, "the maintenance of full employment in Australia", and "economic prosperity and welfare of the people of Australia", but has instead accepted an evidence-free theory that full employment drives inflation.

• White Paper on Full Employment in Australia (1945) – defined economic policy for 30 years
• Reserve Bank Act 1959 s 10
• NAIRU reporting
• Fiscal policy
• Full employment and industrial policy
• Unemployment insurance
• Workforce Australia, Employment Services Act 1994

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".

Given how narrow this power was, the Customs Tariff Act 1906, and the Excise Tariff Act 1906 were passed, 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) 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, which was itself overturned in 1920 in the Engineers case.

Since 2005, Australian industrial relations laws, such as WorkChoices, have been primarily based on the corporations power in section 51(xx) of the Constitution, which enables labour laws to be of much wider reach, without the constraints imposed by the conciliation and arbitration power. 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.

See also

• European labour law
• UK labour law
• US labor law
• ILO Conventions
• Electrolux v AWU (2004)
• Hancock Report (1985)
• Patrick Stevedores v MUA (1998)

References

Books

• B Gaze and B Smith, Equality and Discrimination Law in Australia: An Introduction (2017)
• E McGaughey, A Casebook on Labour Law (Hart 2019)
• J Riley Munton, Labour Law: An Introduction to the Law of Work (OUP 2021)
• C Ronalds and E Raper, Discrimination Law and Practice (5th edn 2019)
• A Stewart, A Forsyth, M Irving, R Johnstone, S McCrystal, Creighton & Stewart's Labour Law (6th edn Federation 2016)

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

External links

• Fair Work Commission
• Fair Work Ombudsman
• List of Modern Awards by the Fair Work Commission