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.NG Butlin, Our original aggression: Aboriginal populations of southeastern Australia 1788–1850 (Allen & Unwin 1983) ch II, 41. P Dowling, Fatal contact: How epidemics nearly wiped out Australia's first peoples (2021) 30-31, Governor Arthur Phillip noting around half the Eora tribe died from smallpox in two to three months. In the Australian frontier wars over the next century, around 115,000 Indigenous people were massacred or killed, particularly in Queensland.H Reynolds, Truth-telling (New South Publishing 2021) Indigenous Australian labour was typically organised on hunter-gathering lines, and was cooperative within and between tribes, and through trade among national groups.J Flood, The Original Australians: The story of the Aboriginal People (Allen and Unwin 2019) 27, 189-97 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.R v Lovelass (1834) 172 ER 1380, and see E McGaughey, A Casebook on Labour Law (Hart 2019) ch 1, 11-14. HV Evatt, The Tolpuddle Martyrs: Injustice Within the Law (Sydney UP 2009) with new introduction by Geoffrey Robertson QC, original (1937) Mass popular support and protest meant that these five became known as the Tolpuddle martyrs, and they were eventually pardoned.S Webb and B Webb, The History of Trade Unionism (1894) ch 3, 144-8 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.M Quinlan, '"Pre-arbitral" labour legislation in Australia and its implications for the introduction of compulsory arbitration', 25-49, and R Mitchell, 'State Systems of Conciliation and Arbitration: The Legal Origins of the Australasian Model', 74-103, in S Macintyre and R Mitchell, Foundations of Arbitration: The Origins and Effects of State Compulsory Arbitration 1890-1914 (1989) 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.G Patmore, Australian Labour History (1991) 101-121, referring to a South Australian Bill 1894 that failed because it did not compel parties to register, the NSW Trades Dispute Conciliation and Arbitration Act 1892 (failing for similar reasons), and the NSW Industrial Arbitration Act 1901 (which was compulsory).
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".. Constitution s 51(xxix) is the "external affairs" power, and may give effect to ratified ILO conventions if domestic law is 'appropriate and adapted'. This was used to pass the Commonwealth Conciliation and Arbitration Act 1904 where a "dispute" would trigger federal jurisdiction between trade unions and employers,Jumbunna Coal Mine NL v Victorian Coal Miners Association (1908) 6 CLR 309. The Act applied to industrial disputes "extending beyond the limits of any one State, including disputes in relation to employment upon State railways, or to employment in industries carried on by or under the control of the Commonwealth or a State or any public authority constituted under the Commonwealth or a State". and this was meant to make strikes illegal or unnecessary, although in fact strikes remained "not uncommon".J Riley Munton, Labour Law (OUP 2021). EI Sykes, 'The legal background to industrial conflict in Australia' (1957) 20 Modern LR 25. E Schofield-Georgeson, 'The emergence of coercive federal Australian labour law, 1901–2020' (2022) 64 Journal of Industrial Relations 52. Industrial Relations Act 1988 s 166A required the parties to get a certificate from the tribunal before suing for an industrial tort, restricting litigation. 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".R v Kelly; Ex parte Victoria (1950) 81 CLR 64, 84, industrial matters for federal awards were about 'the relation of an employer as employer with an employee as employee'. Clerical and public sector employees also included: R v Coldham (1983) 153 CLR 297, Re Australian Education Union (1995) 184 CLR 188 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".Ex parte H V McKay (1907) 2 CAR 1, 3. Also HB Higgins, 'A new province for law and order: industrial peace through minimum wage and arbitration' (1915) 29(1) Harvard LR 13, 'Give them relief from their materialistic anxiety; give them reasonable certainty that their essential material needs will be met by honest work, and you release the infinite stores of human energy for higher efforts, for nobler ideals." 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.R v Barger HCA 43, on the Constitution, s 51(ii) In 1956, R v Kirby held that the CCCA was an unconstitutional court because it held both judicial and powers to arbitrate disputes.R v Kirby; Ex parte Boilermakers' Society of Australia HCA 10 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.See Conciliation and Arbitration Act 1956 (Cth), and then the Conciliation and Arbitration Act 1973 (Cth) renaming them the Australian Industrial Relations Commission and Australian Industrial Court. Federal Court of Australia Act 1976 (Cth) created the FCA with industrial powers. See also (1995) 12 Australian Bar Review 181