Full Embrace of what is in progress
Australia’s landscape of employment law has made, since the Great Strikes of the 1890s, great strides toward equilibrium in the workplace. A full embrace of the rights of employees in pastoral, industrial, and office workplaces has been a work in progress. This was throughout the 20th and 21st Centuries, to say the least. However, it is safe to say that, now, in the year 2024, Australian employees and workers have a variety of legal rights and options at their fingertips when seeking relief for workplace wrongdoing. A Short History of Australian Employment Law is well worth a read to understand where and how got to today.
This purpose of this Article is to demonstrate the evolution of Australian employment law. Then, to provide a summary of the state of Australia’s employment and workplace-related legal landscape as it stands now.
A Chronology of Australian Employment Law: Then To Now
The history of Australian employment law truly began in 1904 with the passage of the Conciliation and Arbitration Act 1904. Passed in the wake of the Great Strikes of the 1890s and the commencement of Australia’s nationhood in 1901, the Conciliation and Arbitration Act 1904 was the first legal mechanism instituted in the country to govern the resolution of disputes between workers, unions, and employers.
This statute created the Commonwealth Court of Conciliation and Arbitration in order to settle workplace disputes. The Court was empowered to resolve disputes and to issue decisions, or “Awards.” An “Award” is, in Australia’s employment law system, an instrument that sets and regulates aspects of the employer-employment legal relationship.
This Court issued, in subsequent years, a number of notable Awards that greatly influenced the evolution of Australian employment law. In 1906, for example, an Award regarding Federal maritime benefits introduced the concept of 10 days of annual leave into the Australian legal landscape.
In 1907, the Shearers’ Award (decision of the Commonwealth Court of Conciliation and Arbitration) held that a worker could only be absent from work if he was sick or unwell. (This may seem to be very limiting, but the allowance for sick leave at all was a significant development in Australian employment law.)
Minimum wage was introduced
Again, in 1908, the Commonwealth Court allowed set a basic minimum wage for the first time, holding that it should be sufficient to support a 5-member family. Legislation continued to follow the precedent of the Commonwealth Court to improve the legal landscape for workers in Australia.
In 1927, Australia reduced the standard work week to 40 hours from the prior 44-hour standard work week. Then, in 1935, the concept of paid sick leave and annual leave began to be slowly incorporated into the standard mode of Australian employment terms and conditions.
World War II introduced further advances to Australian employment law.
Governmental regulations established as a huge portion of the male workforce donned helmets and uniforms and departed their workplaces for service overseas required that the minimum wage for female works increase to at least 75% of men’s basic wage. This new standard was adopted by the Commonwealth Court in 1949 and would remain the governing rule regarding women’s wages for 3 decades.
In 1956, the old Commonwealth Court was ruled unconstitutional by Australia’s High Court. In its place, a new Industrial Relations Court was established. The old Commonwealth Court then evolved into the Conciliation and Arbitration Commission. Its responsibility was confined to making or changing Awards.
Equal pay for equal work
From 1966 to 1968, the Commission ruled that Aboriginal pastoral workers were to be paid the same as white pastoral workers and, in 1972, that all workers were to receive equal pay for work of equal value. Women’s separated minimum wage was excised from Australian employment law, establishing wage parity for the first time. In 1979, the right to 12 months of unpaid maternity leave was introduced.
In 1993, the Industrial Relations Reform Act 1993 was enacted.
This important statute allowed employment disputes to be settled through Enterprise, or collective, bargaining between employers and workplace unions, with the now-renamed Australian Industrial Relations Commission in place to settle disputes when bargaining parties fail to do so. In 1996, the Workplace Relations Act 1996 was also enacted, and the state of Victoria moved into the national workplace relations system.
Through the 1990s and into the mid-2000s, Australia’s Federal industrial relations system grew to encompass a large number of employers and employees covered previously only by state industrial relations systems. In 2008, the Commission began a process of updating and modernizing Awards, replacing over 1,000 state and Federal awards with 122 so-called “Modern” Awards. This process was completed in 2009.
Modern Awards
The Modern Awards generally occupy two categories: (1) industry awards; and (2) occupational awards. Some Awards occupy both categories. Industry Awards cover employers operating in specific industries, as well as the employees who work within those industries. Occupational Awards are those covering employees working in certain occupations, regardless of whether their employers fall within that spectrum of Award coverage.
Whether or not an employer falls into a particular industry has been examined by Courts resolving disputes as a factual question, controlled by the “substantial character” of the enterprise at hand. This involves a macro-review of the employer’s business to determine what the “substantial” strand of the enterprise’s business actually is. More than 1 Modern Award may cover a single employer’s operation, however.
The breach of an Award’s terms by an employer can result in significant monetary penalties, assessed on a per-breach basis, compounded, potentially, by the number of individuals involved in the breach. Thus, throughout the 2000s, the Commission continued this transition and, ultimately, covered most workplaces throughout Australia with this new Modern Award regime.
Fair work Australia
In 2009, Fair Work Australia was founded to replace the many-times re-named Australian Industrial Relations Commission. That same year, the majority of Australian states—excepting Western Australia—transferred their industrial relations powers to the Federal government, retaining only authority over their own public service agencies.
The Fair Work Act 2009 was also enacted that year. In 2013, Fair Work Australia was renamed the Fair Work Commission, and a Fair Work Ombudsman was appointed. The Fair Work Act was amended in 2018 to add the right to unpaid family and domestic violence leave to Australia’s National Employment Standards.
During the pendency of the COVID-19 pandemic, the Act was tweaked and amended on a number of occasions to provide for further unpaid parental and other forms of leave related to the Coronavirus and its effects. In particular, employees who endure traumatic loss as a result of the Coronavirus, such as the death of a child, were allowed additional unpaid leave entitlement.
Fair work Act
Over the past year (as of this writing), the Fair Work Act has been further amended in significant ways. In 2021, the Supporting Australia’s Jobs and Economic Recovery Act 2021 Amendment was enacted. This Amendment took effect in March, 2021, changing workplace entitlements for so-called Casual Employees.
This Amendment redefined the Casual Employee category. Requiring that every Casual Employee be provided with a copy of the Casual Employee Information Statement. The Amendment provided a statutory pathway for Casual Employees to enter full- or part-time employment under certain circumstances. See below regarding the Casual Employee classification and the required Information Statement.
Sex Discrimination and Fair Work (Respect at Work) Amendment Act
Also in 2021, the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 was enacted.
This Amendment to both the Fair Work Act and Australia’s Sex Discrimination Act 1984 defined sexual harassment and introduced requirements for employers to stop workplace harassment. It clarified that sexual harassment can be a valid reason for dismissal and extended compassionate leave to include miscarriage.
The State of Australian Employment Law in 2022
The Australian employment law regime in 2022 is reasonably robust, providing employees and workers with more protections and entitlements than at any other time in the past. However, there is much room for improvement. In terms of collective or Enterprise bargaining, there is, additionally, indications that worker protections have been significantly eroded.
What Is The Fair Work Act (Now)?
The Fair Work Act 2009 is the primary statute underpinning and defining the extent of Australian employment law. It provides the minimum standards and regulations with which employers across the country must comply. Regardless of an employer’s industry or the size of its business.
In general, the Fair Work Act:
- Provides standards for the terms and conditions of employment;
- Sets out the rights and responsibilities of employers and employees with regard to employment;
- Provides rules for compliance with its provisions;
- Provides for administration of its rules and regulations through the establishment of the Fair Work Commission. The Fair Work Ombudsman, as noted in the chronology above.
The Act provides, in particular, 10 National Employment Standards (NES):
- Maximum weekly work hours;
- The right to request flexible working arrangements;
- Parental leave and related entitlements;
- Compassionate leave and family and domestic violence leave entitlement;
- Community service leave entitlement;
- Annual leave entitlement;
- Long service leave entitlement;
- Public holiday entitlement;
- Notice of termination and redundancy pay rules;
- The right to receive the Fair Work Information Statement.
The Fair Work Act likewise sets the national minimum wage which must be paid to Australian workers.
The minimum wage is, pursuant to the Fair Work Act, the base rate to be paid to an employee for ordinary hours of work performed. It is a formula, in other words. The specific minimum wage that must be paid to a specific worker is determined by the specific industry-specific instrument or agreement under which they are employed.
This can differ, depending upon whether that instrument is a Modern Award. An Enterprise Agreement, or collectively bargained agreement, or National Minimum Wage order. Regardless, an Australian worker cannot be paid less than the national minimum rate of pay for the specific job performed. Minimum wages are not set in stone under the Fair Work Act. They are reviewed annually to determine any need for adjustment.
The Casual Employment Information Statement: What Is It?
The Casual Information Statement is an information document required to be provided at certain intervals to so-called Casual Employees pursuant to Australia’s Fair Work Act. A copy can be located here.
However, its essential purpose is to provide Causal Employees notice of their rights under Australia’s Fair Work regime. First, the Statement defines who is and who is not a Casual Employee. Under Australian employment law, you are a Casual Employee if you meet the following conditions:
- You are offered a job;
- But the employer makes no firm advance commitment that the work will continue indefinitely with an agreed pattern of work;
- And you accept the work understanding that no commitment to make you a full-bore employee has been offered.
Casual Employee if you are a temporary employee.
In short, you are a Casual Employee if you are a temporary employee. The definition of the term “no firm advance commitment” is further elaborated upon in the Statement. According to the Statement, to analyze whether or not your employer has made “no firm advance commitment” to you, 4 factors must be considered:
- Your employer can choose to offer you work, and it’s your choice whether or not to accept it;
- You’ll be offered work when your employer needs you to work;
- Your employment is described as casual;
- You’ll be paid a casual loading or specific pay rate for casual employees.
The Statement clarifies that all 4 factors do not need to be present for your classification as a casual employee and that there is no 1 deciding factor from among them. The factors must be weighed to determine whether or not an employee is Casual or not. The balance of the 4-page Statement discuss the pathway to permanent full-time or part-time employment for the Casual Employee. As well as the limits of that pathway and the steps available to the employee if disagreement about that pathway occurs.
Enterprise Bargaining in 2022
Enterprise Agreements are workplace agreements bargained between single employers and collectivized workers’ groups or unions. Their terms apply only to that covered workplace, in contrast to the Awards issued by the Commission, which apply to entire industries. Generally, the Fair Work Act governs the framework within which Enterprise Agreements must be bargained. Under the Act, an employer-employee discussion concerning any of the following points may form the subject-matter of an Enterprise Agreement:
- Matters pertaining to the relationship between an employer that will be covered by the Agreement. That employer’s employees who will be covered;
- Matters pertaining to the relationship between the employer(s) and the employee organisation(s) that will be covered;
- Deductions from wages for any purpose authorized by a covered employee;
- How the agreement will operate.
An Enterprise agreement may be made by a single employer or two or more employers who are “single-interest” employers (i.e., engaged in a joint venture or are related corporations, etc.). It may not be struck with a single employee only.
Enterprise bargaining criticism
This statutory requirement for single or single-interest employer participation in Enterprise bargaining has been criticized as a flawed feature of Australian employment law. Other countries, such as New Zealand and Germany, have implemented sector-wide collective bargaining systems in which workers’ ability to collectively leverage fair wage and conditions. This guarantees from multiple employers across an entire sector may be enhanced.
In any case, in Australia, collective bargaining generally involves a single employer. Under the Fair Work Act, striking and other forms of industrial action are not permitted unless conducted in accordance with the Act’s specific provisions. In particular, such action is illegal unless it occurs in the process of the negotiation of a new Enterprise Agreement.
Collecting bargaining, under the Act, is regulated by the Commission.
Where Is Australian Employment Law Heading in the Future?
According to a recent PriceWaterhouseCoopers (PwC) study, 38% of workers in Australia are considering leaving their current employers in the next 12 months.
This is being called, in Australia as well as in the United States and elsewhere, the Great Resignation. The PwC study explores, in particular, what it is that Australian workers want from an employer. Perhaps unsurprisingly, the #1 condition or benefit that Australians seek is: compensation.
Despite all the of the discussion in the media and elsewhere regarding employees’ increased demand for remote work functionality and other such (understandable and rightful) demands. Fair wages and health and leave benefits continue to be Australians’ first priority in the employer-employee relationship.
Rise in insecure work
Meanwhile, the Australian Council of Trade Unions (ACTU) has likewise described a rise in insecure work in Australia in a recent options paper. According to the ACTU, while Australia’s economy has grown over recent decades, not all of Australia’s workers have been able to share in the country’s prosperity.
A key reason for the rise in economic insecurity found by the ACTU is the proliferation of poor quality, insecure jobs. In other words, the number of Casual Employees, as described above, has increased. As the ACTU illustrates the problem in its paper:
A primary school teacher is engaged on rolling one year fixed contracts with no income over the long summer break and no guarantee of work the following year. A labour hire worker in a warehouse in Melbourne has performed the same work as his workmate beside him for six months but still receives lower pay, inferior entitlements and no job security. A home care worker is engaged on a part-time basis but with no predictability as to weekly hours of work or income
ACTU
The ACTU concludes that the workers across disparate industries and sectors in Australia are experiencing the same phenomena. The shifting of risk of business failure from employers to employees in the form of attacks on wage minimums and on sick leave and other entitlements.
Permanent casuals
Over half of casual employees, the ACTU finds, are “permanent casuals” with long-term, ongoing and regular employment. But with none of the basic entitlements associated with permanent employment. Likewise, 1.1 million employees are, according to the ACTU, independent contractors vulnerable to exploitation. These contractors are more likely to work very long hours without the same minimum wage, minimum conditions, or protection from unfair dismissal as full-time or part-time “permanent” employees.
Independent contractors are not covered by the Fair Work Act and do not have access to Fair Work Australia, notes the ACTU. These trends are on the increase. Thus, the future of Australian employment law is destined to be a dynamic one. As a workers, employees, casual Employees, unions, and employers push and pull at the existing rules and regulations that have evolved in Australian law over the past 120 or more years.
Who will emerge on top? Is it required to be a zero-sum contest? Every working Australian would surely prefer that it not be. That employers recognize that the bottom line need not be the driving force behind all employee interaction or hiring or dismissal decision.
Unfair dismissal and well-moneyed opposition
Any further legal advance, though, would seem to be up against the same well-moneyed opposition that it ever has been. With ever more sophisticated techniques for avoiding its responsibility to workers at its fingertips. Thus, it is that much more vital that, if you believe that your rights under the Fair Work Act or other workplace rule or regulation has been or is being violated. Or that you have been dismissed unfairly that you contact an experienced Australian employment rights representative.
Conclusion to A Short History of Australian Employment Law
A Whole New Approach Pty Ltd. is workplace advisory service. It is dedicated to representing employees only in unfair dismissal, harassment, and other workplace legal disputes. (we are not lawyers). AWNA are the workplace advisors that employers fear. We stand with you as warriors against discrimination, bullying, wealthy employers. To help you to achieve the best outcome possible in your particular circumstances.
All casual employment matters, workers rights, employment rights, forced to resign, adverse action, been sacked, call us immediately. If you feel that you have been discriminated against, harassed, or have been unfairly dismissed, contact us now to schedule your initial free consultation Let’s continue to move the history of Australian employment law forward—together.
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