Australian labour law

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.

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.

[8] 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".

[17] 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,[18] believing that it halted "productive innovation".

[20] 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.

[21] 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.

[27] 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 casualization, 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.

[30] 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.

[36] 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,[37] and therefore needed positive legal rights that would otherwise be lost in take-it-or-leave-it contracts that the employer imposed.

[38] 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.

"[46] 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.

[56] 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.

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.

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).

[58] 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.

[123] Under section 228(1), the "good faith" requirements are that the FWC can make the employer and union meet at reasonable times, disclose relevant information, respond to proposals, genuinely consider them, refrain from capricious and unfair conduct, and recognise the other side's bargaining representatives.

[156] Secondary boycotts have been banned since 1977,[157] so that unions cannot take action in solidarity with workers in different workplaces, even where anti-productive competition is driving pay down in a race to the bottom across a whole sector.

[173] 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 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,[180] family or carer responsibility.

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.

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).

For example, in Richardson v Oracle Corporation Australia Pty Ltd the Federal Court awarded $130,000 in compensation for persistent sexual slurs against the claimant, who was forced to resign from her job, up from $18,000 given at first instance.

[202] There have not yet been institutions to set aside a portion of the funds from Australia's natural resources for Indigenous Australian well-being, nor are there yet clear principles established to ensure that historic disadvantage is undone, as in South Africa, India, or Europe, through positive action.

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.

[222] A dismissal will be "unfair" if it is "harsh, unjust or unreasonable", and according to the High Court in Byrne v Australian Airlines this includes the concept of the employer whose action "is disproportionate to the gravity of the misconduct" of the employee.

[224] Under section 387, the Fair Work Commission should consider factors including the employee's capacity and conduct, notice given, an opportunity to respond to any allegation, representation given, warnings before dismissal, and the enterprise's size and HR specialists.

[228] By contrast in Fussell v Transport for NSW it was held fair to dismiss an employee who sent "an offensive image of his own anatomy" over Snapchat to a work colleague who he thought was a private friend - even though he immediately apologised.

[230] Under section 392, compensation is limited to 26 weeks' pay or half the high income threshold, regardless of the actual economic loss, distress or social cost of the dismissal.

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. [ 1 ]
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 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 ]
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.
The Howard government 's attacks on labour freedom and unfair dismissal protection led to mass protests against " WorkChoices " legislation.
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. Casual workers do not have many of these rights.
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. [ 48 ]
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 15% of workplaces.
Superfunds control $3.5 trillion in Australian retirement savings. Fund boards must have equal member and employer representation, [ 70 ] but shareholder voting power may be outsourced to asset managers that vote against worker and union interests. [ 71 ]
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. [ 85 ] The Fair Work Commission now has an express duty to reduce gender inequality. [ 86 ]
Australian law lets employers class employees as "casual", and not give them paid holidays, parental leave, and job security. This currently affects 22% of the workforce. [ 93 ]
Over the 20th century, the Australian labour movement , with collective bargaining, arbitration and action, created the weekend, the 8 hour day, and systems for fair pay.
In Patrick Stevedores v MUA the Federal Court awarded an injunction against the company for discriminating against union workers during the bitter 1998 Australian waterfront dispute .
The General Secretary of the ACTU , Sally McManus , negotiated the JobKeeper wage subsidy scheme with the Morrison government during the Covid-19 pandemic.
Sharan Burrow was the General Secretary of the Australian Council of Trade Unions, and then the International Trade Union Confederation .
Picketing, like the Geelong library staff in 2021, is part of the universal right to peaceful protest in a free society. Its status in Australian law is uncertain, although it will not attract liability for secondary action. [ 144 ]
Labour Day march in Brisbane 2014.
Water Workers of Australia banner.
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%.
The Whitlam government passed the first Racial Discrimination Act 1975 to embed equal treatment based on race in workplaces.
The Australian Human Rights Commission on Pitt Street, Sydney , has jurisdiction to investigate and resolve complaints of harassment and bullying, along with the Fair Work Commission .
The Gillard government passed the first protections against discrimination for sexual orientation, gender identity, and intersex status, reforming the Sex Discrimination Act 1984 .
The Reserve Bank of Australia , at Martin Place , Sydney, holds monetary policy powers for a stable currency, "the maintenance of full employment in Australia", and "economic prosperity and welfare of the people of Australia", [ 204 ]
ANZ Bank was forced to pay $110,000 in damages - reflecting 4 months' contractual notice - to Mr Bartlett after falsely accusing, and firing, him for sending confidential information to an Australian Financial Review journalist, when they had no proof he did it. [ 207 ]
The Fair Work Commission deals with complaints of unfair dismissal, but employees must apply within 21 days, [ 223 ] and any damages are limited to 26 weeks pay, no matter how great the harm.