Wiki Labour Law Quiz

• Australian labour law governs the rights and duties of employers and employees at both the Commonwealth and state levels
• The law also specifies the role of trade unions and workplace democracy

Fair Work Act 2009

• The Fair Work Commission (FWC) is established under this Act
• The FWC sets a national minimum wage
• The FWC also oversees National Employment Standards (NES)
• NES ensures fair hours, holidays, parental leave, and job security

Fair Work Commission (FWC)

• The FWC creates modern awards applicable to most sectors
• There were 150 modern awards in 2024
• These awards include minimum pay scales
• The awards also specify rights to overtime, holidays, paid leave, and superannuation

Enterprise Bargaining Agreements

• Trade unions and employers can negotiate enterprise bargaining agreements
• These agreements provide better wages and conditions than the legal minimums
• These agreements are crafted above the floor of rights established by law

Collective Agreements vs. Casual Employment

• In 2024, collective agreements covered 15% of employees
• 22% of employees were classified as "casual," lacking many standard worker protections

Collective Action

• Australian laws regarding collective action are restrictive compared to developed countries
• Australia lacks a general law protecting workers' rights to elect worker directors on company boards unlike many wealthy OECD countries

Historical Context

• First federal labour rights followed the Constitution of Australia in 1901
• Pre-federation colonies regulated work, often suppressing labour freedom violently
• British Empire forcibly settled Australia, claiming possession of the eastern continent in 1780

Penal Colony Establishment

• Britain established a penal colony in Sydney in 1788, populated by 1400 settlers and convicts
• This occurred after losing territory to the United States during the American War of Independence

Indigenous Australians

• Approximately 1. 2 million Indigenous Australians lived in Australia before colonisation
• European contact decimated the Indigenous population, with up to 80% dying from diseases like smallpox
• Around 115, 000 Indigenous people were killed in frontier wars, particularly in Queensland

Indigenous Labor

• Indigenous labour was based on cooperative hunter-gatherer practices within and between tribes
• Trade was common among national groups

British Labor

• British labour in the colonies was primarily forced, relying on a constant supply of prisoners
• Crimes of the prisoners were often related to property or seeking better wages in Britian

Tolpuddle Martyrs

• Five farm workers from Tolpuddle, Dorset organised a trade union
• Their wages were cut from nine to six shillings a week
• They were convicted under the Unlawful Oaths Act 1797 and Unlawful Societies Act 1799 for forming a trade union
• The unlawful act was them swearing an oath of loyalty to each other
• They were sentenced to transportation to Sydney
• Popular protest led to their pardon, and they became known as the Tolpuddle Martyrs
• The Tolpuddle Martyrs' protest relates to the broader labour rights movement

Gold Rushes

• The Australian gold rushes of 1851 tripled the population to over a million migrants
• Protests arose against the government's attempt to impose a licence fee for gold mining

Eureka Stockade

• In 1854 at Ballarat, miners protested the £2 fee for 3 months and demanded democratic representation
• Strict enforcement of the fee sparked the uprising
• The rebels took up arms, but the stockade was destroyed and its leaders were killed or arrested
• Juries acquitted all those arrested
• The gold licence fee was replaced with an export duty
• Miners won the right to vote in the Victorian Legislative Assembly

Discriminatory Laws

• Labour rights in Australian colonies were minimal and discriminatory based on gender and race
• Discrimination was entrenched in the White Australia policy from the Immigration Restriction Act 1901

Right to Organise

• The right to organise unions was uncertain
• There was no right to engage in collective action for fair work or legislative rights to fair wages/job security

Arbitration System

• To address industrial conflict, South Australia, New Zealand, New South Wales, and the federation sought arbitration
• This was in response to events such as the 1890 Australian maritime dispute and the 1892 Broken Hill miners' strike

Constitution of 1901

• Constitution section 51(xxxv) empowered laws regarding "conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one state"

Commonwealth Conciliation and Arbitration Act 1904

• This Act established that a "dispute" would trigger federal jurisdiction between trade unions and employers
• It aimed to make strikes illegal or unnecessary, but strikes remained common
• The Commonwealth Court of Conciliation and Arbitration (CCCA) could hear disputes and make "awards" for fair wages and conditions

Harvester Case

• In the landmark Harvester case, the CCCA ruled that Hugh Victor McKay must pay "fair and reasonable wages" or face an excise tax under the Excise Tariff Act 1906
• Higgins J defined "fair and reasonable" as meeting "the normal needs of an average employee...in a civilised community"
• This was based on a hypothetical collective agreement rather than individual bargaining

R v Barger

• In 1908, R v Barger struck down the Excise Tariff Act 1906
• The ruling stated that the federal tax power could not indirectly regulate working conditions
• This does not negate the Harvester case

R v Kirby

• 1956 Supreme Court case
• The CCCA was ruled unconstitutional because it held both judicial and arbitral functions

Establishment of New Bodies

• The Commonwealth Conciliation and Arbitration Commission was created to carry out mediation
• The Commonwealth Industrial Court assumed judicial powers
• The court itself merged into the Federal Court of Australia in 1977

Shift in the 1980's

• Australian workers were among the wealthiest in the world by the 1980s
• Parliament sought to reduce sectoral collective bargaining and awards, based on US and UK models
• The belief was that centralized wage setting halted "productive innovation"

Prices and Incomes Accord

• In 1983, The 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
• Additional payments would be given if productivity improved at the enterprise level

Industrial Relations Act of 1988

• Industry-wide awards provided a minimum safety net
• Enterprise bargaining created certified agreements for higher wages
• Unions and employers could take collective action, including strikes, under certain conditions

Industrial Relations Reform Act 1993

• Added provisions on unfair dismissal
• Non-union workplaces could also make collective agreements if approved by a special majority

Basis of Acts

• These Acts relied on the Constitution's trade and commerce, corporations, and external relations powers
• This was deemed a valid basis for labour laws by the High Court

Anti-Discrimination Law

• Gough Whitlam government passed the first Racial Discrimination Act 1975
• This Act created a right of equal treatment based on race at work
• The Sex Discrimination Act 1984 prohibited discrimination based on sex

Further Discrimination Laws

• Disability Discrimination Act 1992 and the Age Discrimination Act 2004 were added

Complaints

• Complaints could be made to the Australian Human Rights Commission and courts for violations of anti-discrimination norms

Superannuation Industry (Supervision) Act 1993

• Ensured equal employee or beneficiary election rights on superannuation boards
• The boards provide workplace pensions
• The Abbott government reduced protection by enabling "independent" members selected by the incumbent board

Workplace Relations Act 1996

• Under John Howard, the Workplace Relations Act 1996 reduced allowable matters for awards to 20 issues
• "Australian Workplace Agreements" could be made between individual employees and employers, potentially worse than awards
• It also created a freedom "not to associate" with a union and banned union preference clauses in awards

Work Choices Act 2005

• After Howard's re-election in 2004, the Workplace Relations Amendment (Work Choices) Act 2005 was passed

Key Changes

• Industry-wide awards were abolished
• Unfair dismissal protection was removed for employees with fewer than 100 staff
• Trade unions were no longer parties to collective agreements
• A new set of "Australian Fair Pay and Conditions Standards" applied to all employers and employees
• A new "Australian Fair Pay Commission" determined minimum wages

Overriding State Rights

• Work Choices Act overrode all state rights, even if they were better

Opposition to Work Choices

• The unpopular "Work Choices" led to the Howard government's defeat in 2007

Fair Work Act 2009

• The Fair Work Act 2009 replaced "Work Choices"
• It restored unfair dismissal rights
• Individual "AWAs" were replaced with enterprise collective agreements
• Minimum conditions of employment were renamed the "National Employment Standards" (NES)

Enforcement

• The Fair Work Commission enforces awards and bargaining, sets industrial awards, minimum wages, and resolves disputes
• The industrial awards include unfair dismissal

Later Governments

• Abbott, Turnbull, and Morrison governments did not change the basic structure of the Fair Work Act 2009
• Wages and standards declined due to lack of enforcement, growing casualization, and hostile judicial decisions

Albanese Government

• The Albanese government implemented reforms to raise protection of workers
• The Fair Work Legislation Amendment (Closing Loopholes) Bill aims to address the gap between Australian and European labour rights standards

Remaining Issues

• Issues that need to be addressed include: lack of a restored system for sectoral collective bargaining, weak protection for collective action, absence of rights for workers to elect directors on boards of enterprises
• 25 per cent of people on "casual" contracts, and stagnating real wages are also important

International Law

• International law states; "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

Employee Definition

• The scope of rights under the Fair Work Act 2009 depends on the definition of "employee," as opposed to an "independent contractor"

Motivation

• Historically, the distinction between employee vs. independent contractor was based on the rationale that; employees have systematically unequal bargaining power, and therefore needed positive legal rights

Common Law

• The common law distinguished employees from the self-employed based on the employer's exercise of control

Multiple Factors

• Courts considered the personalness of work, the worker's work for others, method of pay, ownership of equipment, trademarks, goodwill, and profit/loss responsibility

ZG Operations Australia Pty Ltd v Jamsek

• The High Court overturned the Federal Court in ZG Operations Australia Pty Ltd v Jamsek
• The High Court ruled drivers who were made to buy their own vehicles were not employees, despite bearing the employer's trademarks, working only for the company, and doing so for decades

Drivers

• The drivers were originally contracted as employees
• Their contracts were unilaterally altered to deem them self-employed, but that didn't matter for the ruling apparently

Bargaining Power

• The court asserted that "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"

Fair Work Act 2009 section 15AA(1)

• 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."

International Comparison

• Wealthier jurisdictions determine employee status and rights based on reality, bargaining power, and the purpose of the law

Section 357 of the Fair Work Act 2009

• States that there is a civil penalty for misrepresenting a contract as independent when it is one of employment
• This is section doesn't go far enough

Five Types of Cases

• Unpaid internships
• Single-person corporations engaged through commercial contracts
• Labour hire arrangements
• Franchisor obligations
• Gig economy classifications

Unpaid Internships

• Unpaid internships have been allowed in some cases, with limits

Single-Person Corporations

• Single-person corporations can be easily established and engaged through a commercial contract
• In ACE Insurance Ltd v Trifunovski, the Federal Court held that insurance agents contracted through corporations were still employees

ODCO Case

• In Building Workers' industrial Union of Australia v Odco Pty Ltd, held that people could be classed as self-employed in relation to the party they truly work for, even a 22-year old backpacker doing menial labour

Courts

• Courts have been able to ensure that 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

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 in Australia on lower wages, undercutting the enterprise agreement
• The critical factor was that although work occurred in Australia, contracts were made in foreign countries with foreign corporations

Franchisors

• Franchisors have obligations under the Trade Practices (Fair Trading) Act 1998 to disclose information, allow franchisees to freely associate, and not unfairly terminate contracts
• Franchisors are liable for breaching the Fair Work Act 2009 if they should have been aware and taken preventive steps.

Modern Slavery Act 2018

• it contains "due diligence" requirements for corporations to prevent forced labor in supply chains, but fails to impose vicarious liability, or personal liability, regardless of the mindset of directors

Gupta v Uber Australia Pty Ltd

• The Fair Work Commission initially accepted that an Uber Eats driver was not an employee

New Protection: Section 15P of the Fair Work Act 2009

• This requires that an "employee-like worker" has the same rights considering "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

Fair Work Commission

• These workers may also apply to the Fair Work Commission for unfair deactivations, unfair terminations, and unfair contracts

Entry into Work Relationship

• Entry into a work relationship is through a contract-based consent
• The Fair Work Act 2009 creates a national minimum wage and minimum scales depending on the workplace sector

National System Employer

• FWA 2009 section 14 covers every "national system employer" that may be regulated by the federal constitution
• Gaps were closed by all states referring their powers over industrial matters to the Commonwealth (except Western Australia)

National Minimum Wage

• The Fair Work Commission sets a basic "national minimum wage" each year for all employees not covered by a specific "modern award"

National Minimum Wage Numerical Data

• From July 2023, the national minimum wage was $23. 23 an hour, or $882. 80 a week of 38 ordinary hours

Section 284

• 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

Modern Awards

• "Modern awards" are set by the Fair Work Commission
• Numbers over 150 from 2024
• These describe sectors and what the minimum pay scales are

Junior Employees

• Often, "junior" employees under 21 years old are paid less
• They are sometimes except from age discrimination laws
• The theory is that the law reduces youth unemployment

Most Awards

• exclude managerial staff, and must exclude people based on the "seniority of their role" who were traditionally not covered
• "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
• Fair pay scales do not prevent ripoff executive pay, without enterprise bargaining

Enterprise Agreements

• under section 57 that a enterprise agreement, that the unions and employees bargain over, will displace any sector-wide award

Coverage Issues with Agreements

• limited to 27% in 2012, fell to 15% in 2021
• compared to coverages typically over 80% in European Union member states that promote sectoral collective bargaining.

Award and Agreements Standards

• most awards set rates for working overtime, extra pay for work on sundays or public holidays, and superannuation.

Wages and Payments

• civil remedies for all award breaches
• Under FWA, section 323 requires that people are paid in money

Education Union v Victoria

• 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

• Australia makes superannuation payments a workplace pension in retirement, where employers must pay 12% by 2025
• No unauthorized deductions of wages, and a right to be paid at least monthly.
• Industry Supervision Act 1993 section 89, the "basic representation rule" is that boards of funds have equal number of member and employer-appointed trustees, but there may also be "independent" trustees or directors appointed by the incumbent board.
• 3. 5 trillion in assets under management at Australian superfunds by 2023

Casual Employment

• Australian law enables employers to not provide all rights of employment, particularly paid holidays and job security, if people are classed as "casual" employees, and in 2023 this meant around 22% of employees
• Modern awards grant a 25% "casual loading" additional pay, but potentially no holidays at all.

Loading

• no legal mechanism to prevent employers lowering rates of pay before the 25% loading is added.

Casual Employee Standards

• Under the Fair Work Act 2009 section 15A, a casual employee needs an absence of a firm advance commitment to continuing and indefinite work

Workpac Pty Ltd v Rossato

• where a contract states someone is casual, even if the employer provides ongoing work with regular and systematic shifts, they are still casual employees and not entitled to paid holidays under FWA 2009 section 86.

Dismissal and Protection of Rights

• Casual workers are protected by unfair dismissal after 6 months (12 months small business), if they work 'on a regular and systematic basis' and expect continued employment, but risk losing job security rights.
• Workers now get an offer of a permanent contract after 12 months unless there are reasonable grounds to not make the offer

Atypical Work Contracts

• part-time, fixed-term and labour hire staff are other work contracts

Equal Treatment for workers

• Since the Workplace Relations Act 1996 section 526, awards are able to provide equal treatment for part-time workers, often also casual employees and not treated equally regarding holidays and job security, affecting women disproportionately.
• unequal treatment for fixed staff

Unfair Labor

• 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.

Labour Law 2009 306C-G

• 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, where wealthier countries apply automatically and are unavailable to small businesses.

Rights of Union Membership

• To join a union, freely associate and take action including strikes, are universal rights in international law, enshrined after the experience of mass war and dictatorship, but Australian law provides minimal protection, and has been criticised by the International Labour Organization.
• Join a union with a weak high court protection for discrimination against union members in action

Collective Bargaining Issues

• Collective bargaining is limited within "single-employer" enterprises, preventing sectoral collective bargaining, including solidarity action

Director Rights

• Though significant history of workers voting for representation on boards of directors of the corporations, Australia has not introduced a federal law to protect the right to do this

Trade Union 2024

• there were 1. 4 million trade union members (15% of all employees), 46 affiliated with the Australian Council of Trade Unions.

Union Executive

• unions follow a pattern of members electing delegates, who in turn elect the union executive, in contrast with a direct election model.

Membership Decline

• The fall in membership followed the shift to enterprise bargaining, and the ban on the closed shop since 1996.

Section 346

• The Fair Work Act 2009 section 346(a) says there is a right to suffer no "adverse action" from an employer (or anyone) if that person "is or is not, or was or was not, an officer or member of an industrial association", but the courts tend to look at the employer's subjective reasons, weakening protection

Burden of Proof

• that employee must allege that the employer has taken adverse action for a prohibited reason
• "it is presumed that the action was, or is being, taken for that reason or with that intent, unless the [employer] proves otherwise."
• reverse burden of proof

Wages in reality

• unions and employers may collectively bargain, but the Australian collective bargaining system is largely confined to individual enterprises, rather than multi-employer bargaining, to reach fair wages
• coverage of agreements by the unions are historically restricted

Agreements Under the Laws

• FWC may authorise "single interest employers" to bargain, but separate organisations bargain separately, if at all
• FWC may approve multi-employer agreements, but must find that that "agreement has been genuinely agreed to by each employer" with "no person coerced", even though solidarity strike action is unlawful

Low Paid Bargaining

• allow an employees of several employers may also ask the FWC for a special "low-paid bargaining" authorisation
• no multi-employer agreements haven't have come from it

Agreement terms to abide by

• 187(7) FWA allows "greenfield agreements", where employers make an agreement in new workplaces to last up to 4 years (or 8 years for construction projects) without any strike action possible
• chain Aldi made an agreement with 17 prospective employees before the union, and the the agreement could be made even though the employees had not begun work

Bargaining Terms

• for an employer to voluntarily, the Fair Work Commission can require good faith bargaining after determining that there is majority support
• Under good faith employer must 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

Collective Meeting Requirements

• Once the employer has been found to breach the requirement of collective bargaining, and unions and fair trade groups may meet to discuss certain terms, and the expiration date must be a certain extent
• The Fair Work Regulations 2009 Schedule 2. 3 prescribes a model consultation term.

Employee Relations

• the law restricts agreements on union rights of entry, varying restrictions on strike action, and terms requiring employers pay bargaining service fees for non-union members.

Union Rights

• civil remedies for breach and anyone with standing to sue in federal court

Collective Action

• the universal right to strike falls on Australia as one of the most restrictive unions' freedom to protect members' interests, and progressive restrictions on voice at work have matched a stagnation of wages

Action 19

• Under the Fair Work Act 2009 section 19, industrial action is performing work or limiting the work and performance of work

Union Action Legalities

• not allowed for even "pattern bargaining" seeking the same agreements across
• must get permission from the FWC to a protected action ballot, and the FWC must grant an order to the union
• not allowed before an agreement has ended

Penalties

• Protected industrial is immune from liability in tort if there is no personal injury, property damage or defamation, or the union must be issued a stop order
• four hour pay penalty for unprotected action, and there is can be no pay during industrial action.

International Guarantees

• majority of OECD countries protect the of employees to vote for directors on boards of corporations Australia has not yet passed a general law to protect workers

Codetermination

• Superfund is set to "equal numbers of employer representatives and member representatives" on the board of directors or trustees
• public enterprises and worker boards occur in private sector

Equal Treatment

• international that peoples skills shall be viewed fairly and under a impartial role
• Equal treatment can be made under section 2009 and federal and state laws
• gender pay and Indigenous pay often affect these situations

Fairness

• FWA 2009 enables complaints of discrimination to be made against "an employer" for "adverse action against a person who is an employee, or prospective employee"
• Employers are exempt to federal law if the law is not unlawful

Harassment

• If a rule is disparate on it's face, and has a direct impact, this will be unlawful to ensure good conditions of employment

Positive Action

• to prevent any hindrances with fairness, adjustments must be in order to provide fair terms of service - positive action may make historical disadvantage

Job Security

• social security and full employment makes sure everyone is successful within business
• most Australians want notice and reason and redundancy payment as job security policies

Dismissal

• rights are protected from termination and unfairness
• the Fair Work Act 2009 section 382 contains the right to those
• common law the right
• a dismissal will be "unfair" if it is "harsh, unjust or unreasonable".
• Commission can order compensation or reinstatement
• the Fair Work Act 2009 to the workers of Australia

Fair Work Commision Objectives

• The objectives of the FWC under section 134 are improving secure work, gender equality, encouraging bargaining and a competitive economy.

Award Variation

• Under FWA 2009 section 158 an employer, employee, or trade union covered by the award can apply for a variation of an award.

Modern Awards Example

• The "Legal Services Award 2020" sets minimum weekly rates for clerical and administrative staff
• The "Reserve Bank of Australia Award 2016" sets annual salaries for different levels
• The "Higher Education Industry – Academic Staff – Award 2020" sets a pay scale with annual salaries and minimum hourly rates.

Employment of Workers Under 21

• New Zealand experience is that paying young people less does not encourage them to find work, and abolishing junior rates had no impact on youth employment.

Awards and Seniority

• Most awards exclude managerial staff, and must exclude people based on the "seniority of their role"

Constitution powers for labour laws

• Because courts gave inadequate remedies for workers who were dismissed, and let employers dictate the terms of dismissal by contract, the Fair Work Act 2009 section 382 contains the right to be "protected from unfair dismissal"

Equal Treatment

• 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.

Discrimmination and Structural Problems

• Despite these rights to formal equality, structural problems mean discrimination remains rife, so that the gender pay gap remains at 21. 7% according to employer surveys, and the Indigenous pay gap is over 33%.
• Sex discrimination in child care and parental leave laws are 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'

Exception Reason for complaints

• The employer may show adverse action was permitted "because of the inherent requirements of the particular position concerned.

Exceptions Section 351 religious

• In section 351(2)(c) is that religious organisations with "doctrines, tenets, beliefs or teachings" may take action in good faith

Lawful Exceptions Section 351

• In 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".

Disparate Impact

• If a rule that is neutral on its face has a disparate impact on one group, this will also be unlawful.
• The Fair Work Act 2009 section 302, employees, unions and the Sex Discrimination Commissioner can make an equal pay claim

Redundancy Payments

• 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 proposals

Explore Australian labour law focusing on the Fair Work Act 2009 and the role of the Fair Work Commission. Understand National Employment Standards, modern awards, and enterprise bargaining agreements. Learn about minimum wages, working hours, and the influence of trade unions.