Australian labour law
Australian labour law sets the rights of working people, the role of trade unions, and democracy at work, and the duties of employers, 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 better wages and conditions in their workplaces. In 2024, collective agreements covered 15% of employees, while 22% of employees were classified as "casual", meaning that they lose many protections other workers have. Australia's laws on the right to take collective action are among the most restrictive in the developed world, and Australia does not have a general law protecting workers' rights to vote and elect worker directors on corporation boards as do most other wealthy OECD countries.
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 in recent decades the previous commitment to keeping unemployment around 2% or lower has not been fulfilled. Australia shares similarities with higher income countries, and implements some International Labour Organization conventions.
History
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 anchored 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 R v Lovelass a group of five farm workers in Tolpuddle, Dorset had organised a trade union, because their wages were cut from nine shillings to a starvation wage of six shillings a week. They were convicted under the Unlawful Oaths Act 1797 and 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. 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.File:Horsedrawn seed drill - Scheyville.jpg|thumb|left|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 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, and this was meant to make strikes illegal or unnecessary, although in fact strikes remained "not uncommon". The Commonwealth Court of Conciliation and Arbitration 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.
File:Bob Hawke in 1980.jpg|thumb|right|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 Act 1993 passed to ensure at least equal employee or beneficiary election rights on superannuation boards that provide workplace pensions.
File:ACTU protest 20051115.jpg|thumb|left|The Howard government's attacks on labour freedom and unfair dismissal protection led to mass protests against "WorkChoices" legislation.
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. After Howard's government was re-elected in 2004, they passed the Workplace Relations Amendment 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, 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 the Howard government losing decisively in 2007, with John Howard himself losing his seat. 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". 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 casualization, and hostile judicial decisions. With the Albanese government, a series of reforms, such as the Fair Work Legislation Amendment 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" contracts, and stagnating real wages.