208-660: Ex parte H.V. McKay , commonly referred to as the Harvester case , is a landmark Australian labour law decision of the Commonwealth Court of Conciliation and Arbitration . The case arose under the Excise Tariff Act 1906 which imposed an excise duty on goods manufactured in Australia, £6 in the case of a stripper harvester, however if a manufacturer paid "fair and reasonable" wages to its employees, it
416-496: 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 (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". With favourable governments in power, some courts were progressive, and in
624-471: A Garden City is "a planned settlement designed to overcome the limitations of both town and country, by combining the best of both in free-standing, self-sufficient communities with ample parkland and public space." The main correlations between Howard’s ideas and H.V. McKay ’s plan for the Sunshine Estate include, firstly, the formation of a plan for a new town on undeveloped rural land (including
832-555: A breach is "in connection with" employment. 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. In South Pacific Restor Hotels v Trainor an employer was held liable for harassment after work hours, but in accommodation provided by
1040-471: A catch all safety net. From July 2023, the national minimum wage was $ 23.23 an hour, or $ 882.80 a week of 38 ordinary hours. 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. Second, " modern awards " are set by
1248-425: A civil remedy for misrepresentation that a contract is independent, rather than one of employment. However, compared to international standards, misclassification takes most through approval by the courts themselves. There are five main types of case. First, unpaid internships have been allowed, though in one case the limit was two weeks. Second, single person corporations can be easily established and engaged through
1456-480: A claimant would only be protected from an employer's deliberate and conscious victimisation, not employers who make out they (supposedly) inadvertently took adverse action. This approach falls below international standards, where adverse action is a purely objective test. By contrast in CFMEU v Clermont Coal Pty Ltd an employer was found liable for selecting a union organiser named Mr Scott for redundancy, ostensibly on
1664-400: A collective agreement must include terms for an expiry date no longer than 4 years (even if the parties want an ongoing agreement), a dispute resolution clause, a term for employees to make "individual flexibility agreements" (so long as employees are "better off overall"), and a term on consultation on any "major workplace changes" that could impact employees or change hours of work. To assist,
1872-402: A collective agreement – an agreement between all the employers in a given trade on the one side, and all the employees on the other – it seems to me that the framers of the agreement would have to take as the first and dominant factor the cost of living as a civilised being. If A lets B have the use of his horses on the terms that he gives them fair and reasonable treatment, I have no doubt that it
2080-586: A commercial (rather than employment) contract, although in ACE Insurance Ltd v Trifunovski the Federal Court held that insurance agents who were made to contract through corporations were still employees, even though they might hire clerical assistants. Third, labour hire (or agency work) arrangements were held in Building Workers' Industrial Union of Australia v Odco Pty Ltd to enable people to be classified as self-employed in relation to
2288-637: A competitive economy. Under FWA 2009 section 158 an employer, employee, or trade union covered by the award can apply for a variation of an award. Often, "junior" employees under 21 years old are paid less, and are exempt in this respect from age discrimination laws, based on the theory that it may reduce youth unemployment, even though experience in New Zealand is that paying young people less does not encourage them to find work, and abolishing junior rates had no impact on youth employment. Most awards exclude managerial staff, and must exclude people based on
SECTION 10
#17327800549052496-417: A complainant establishes that there is adverse action, and a prohibited ground, the onus of proof shifts to the employer which must prove that their reason for action was not tainted by the person's protected characteristic. A first main exception in section 351(2)(b) is the employer may show adverse action was permitted "because of the inherent requirements of the particular position concerned". For instance,
2704-567: A conference, compulsory in cases of dismissal, and the FWC may arbitrate with the parties' consent. Despite the intent of Parliament, in Board of Bendigo Regional Institute of Technical and Further Education v Barclay the High Court held that the reverse burden of proof made it legitimate to focus on the subjective reasons of the decision-maker, so that direct "testimony from the decision-maker which
2912-480: A contract, The longer that people work for an employer, the more notice becomes reasonable, reflecting the concept of mutual respect. For example, in Quinn v Jack Chia (Australia) Mr Quinn had been initially hired on a contract with a one month notice, but had worked for years, taking on senior responsibilities, and making personal sacrifices for his employer. The court held he was entitled to 12 months, not one month as
3120-555: A controlling interest in H.V. McKay Pty Ltd, with the Australian operations of both firms being merged under the title H.V. McKay Massey Harris Pty Ltd. Throughout World War II, H.V. McKay Massey Harris exported 20,000 Sunshine drills, disc harrows and binders to England, to facilitate an increase in food production. In the 1950s, the McKay family sold out to the newly-formed agricultural implement conglomerate Massey Ferguson , which
3328-429: A corporate group, or multiple entities in a joint venture or common enterprise, but usually separate organisations bargain separately, if at all. Under section 186, the FWC may approve multi-employer agreements, but must find that the "agreement has been genuinely agreed to by each employer" with "no person coerced", even though solidarity strike action is unlawful in Australia. This makes multi-employer agreements rare and
3536-460: A declaration that the wages paid by him were fair and reasonable. McKay's was one of 112 applications by manufacturers of agricultural machinery in Victoria and his application was selected as a test case because the factory was one of the largest, and had the greatest number and variety of employees and because his application was strongly opposed by various unions. Other applicants were told that
3744-416: A defined benefit superannuation fund, whether money was transferred to a union-controlled super-fund, and constraints on employing contract labour as opposed to equal treatment. Even more, 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. Once made, an agreement covers all employees it
3952-421: A fair and reasonable wage meant paying his employees a wages that met "the normal needs of an average employee, regarded as a human being in a civilised community", regardless of his capacity to pay. This gave rise to the legal requirement for a basic wage . In defining a 'fair and reasonable wage', Higgins (without explicit acknowledgement) employed Pope Leo XIII 's Rerum novarum of 1891, an open letter to all
4160-620: A false position. The strength of the Judiciary in the public confidence is largely because the judge has not to devise great principles of action as between great classes, or to lay down what is fair and reasonable between contending interests in the community; but has to carry out mandates of the Legislature evolved out of the conflict of public opinion after debate in Parliament. I venture to think that it will not be found wise to bring
4368-654: A federal or state Minister, if it threatens life, safety, health, welfare or part of the Australian economy, if a cooling off period would "assist in resolving the matters at issue", or if there is significant harm to a third party. For instance, in the 2011 Qantas industrial disputes , the Minister intervened to get a stop order to suspend a pilot strike at Qantas, given the impact on the national tourism industry. Secondary boycotts have been banned since 1977, so that unions cannot take action in solidarity with workers in different workplaces, even where anti-productive competition
SECTION 20
#17327800549054576-452: A full time employee is 38 hours, and an employer may not request more "unless the additional hours are reasonable", taking account of health, family, workplace needs, any overtime payments, and notice. Under section 139 awards are permitted to, and often do include overtime pay, usually 1.5 times or 2 times the basic rate of pay. In calculating the 38 hour maximum, employees' working time over 26 weeks will be averaged out. Second most important
4784-507: A general federal law, like a majority of wealthier OECD countries, to protect the right to vote for directors at work. In 2024 there were 1.4 million trade union members in Australia, 46 of which are affiliated with the Australian Council of Trade Unions . Each union has a different constitution, and system for electing its Secretary and President, but most unions follow a pattern of members electing delegates, who in turn elect
4992-489: A genuine occupational requirement might be a theatre employer requiring a woman to act in a female part. In one of the leading cases, Qantas Airways Ltd v Christie , a pilot over the age of 60 failed in a claim against Qantas, which had a blanket ban on pilots over the age of 60. 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. However
5200-794: 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,
5408-488: A journalist at the Australian Financial Review , and the employer had an obligation to act reasonably. This default position at common law may be replaced with contractual procedures before dismissal, but if not, an employer must simply show a sound reason for summary dismissal. Because common law judges historically gave inadequate remedies for workers who were dismissed, and let employers dictate
5616-577: A majority of OECD countries protect the right of employees to vote for directors on boards of corporations (usually at least one-third), Australia has not yet passed a general law by amending the Corporations Act 2001 , the Fair Work Act 2009 or state laws for worker directors. However, Australia does have board-level employee representation (or " codetermination ") in occupational pensions, and several specific sectors. First, under
5824-557: 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
6032-602: A model industrial town involved providing key infrastructure and services, including "electric lighting, parklands, recreation areas, public buildings, land for school and library, and housing for employees." McKay also established the Sunshine Gardens (today called the H.V. McKay Memorial Gardens ) adjacent to the factory, which was "central to his vision of a garden suburb to house a contented and respectable workforce whose life would revolve around work, church, sport, and horticulture." Bampton says ‘these gardens are
6240-469: 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
6448-653: A party commits a serious breach of contract. In these cases, an employee can quit on the spot and claim damages, or an employer can dismiss the employee. According to Bartlett v ANZ Banking Group Ltd a serious breach of the employment contract can include deliberate disobedience of a lawful and reasonable order, breaching the duty of fidelity (e.g. by taking secret commissions), or serious incompetence. In this case, an ANZ Bank employee won damages for wrongful dismissal on appeal, measured by 4 months notice that his contract required, since ANZ could not prove he had actually engaged in misconduct of sending confidential information to
Harvester case - Misplaced Pages Continue
6656-688: A peak of merely 27%, and by 2021 coverage fell to 15%, compared to coverages typically over 80% in European Union member states that promote sectoral collective bargaining . As well as basic pay, most awards set rates for working overtime, extra pay for work on sundays or public holidays, and superannuation. For all breaches of modern awards, there are civil remedies. Under FWA 2009 section 323 requires that people are paid in money, rather than in kind (or " truck "). For example, in Australian Education Union v Victoria it
6864-534: 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
7072-416: 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
7280-455: A person who is an employee, or prospective employee". Independent contractors therefore must bring actions in state law where possible. 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, family or carer responsibility. If
7488-713: 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. Positive action is designed to remedy historical disadvantage, but Australia has very few measures at federal level. Under the Disability Discrimination Act 1992 sections 4 to 6 require that an employer must make reasonable adjustments to accommodate people with disabilities at work. However, under section 11
7696-399: A position which encourages all out strikes and exacerbates disputes. Moreover, employers who cannot reasonably operate broken machinery, or is facing a closure from strikes, can stand down employees without pay. Even where industrial action is protected and valid, the FWC still has jurisdiction to suspend or terminate action if it threatens significant economic harm on application of a union or
7904-502: A remnant of the ordered, controlled world dominated by McKay and his factory’. McKay maintained the gardens for the benefit of the community, providing for entertainment and outdoor recreation. Furthermore, Garden City principles are evident in the employee housing on Leith Avenue – the project developed by McKay and financed through the State Savings Bank, including twenty-eight homes designed by Burridge Leith According to
8112-414: 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" (NES). 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
8320-631: 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
8528-493: A right to be paid at least monthly. Under the Superannuation Industry (Supervision) Act 1993 section 89, the "basic representation rule" is that boards of funds have an equal number of member and employer-appointed trustees, but there may also be "independent" trustees or directors appointed by the incumbent board. By 2023, there were $ 3.5 trillion in assets under management at Australian superfunds, however
Harvester case - Misplaced Pages Continue
8736-773: 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. Within states, similar systems exist with a watchdog, and appeals to a Tribunal, for instance the Anti-Discrimination Board of NSW and then the NSW Civil and Administrative Tribunal, but claimants cannot bring proceedings at both federal and state level, and so must choose. The FWA 2009 section 27(1A) says that federal law does not exclude state anti-discrimination laws, meaning that greater protection can be provided by states where
8944-461: A series of arbitrary exceptions to redundancy rights. Employees of employers with under 15 staff get nothing, on the theory that small businesses need protection more than workers. Casual, trainee and weekly fixed term employees are also excluded from protection, even though this means around 22% of the Australian workforce. Finally, if an employer is insolvent, at common law the insolvency terminates contracts on reasonable notice. To protect pay, under
9152-524: A sexual nature, that is unwelcome, where a 'reasonable person' would have been offended, humiliated or intimidated'. This is also unlawful under the Australian Human Rights Commission Act 1986 section 3, and enables courts to pay compensate for loss or damage. Under section 28B it is unlawful for a person to sexually harass their employee, and employers are vicariously liable for conduct of any employee to another where
9360-443: A small business, if they are deemed to work 'on a regular and systematic basis' and have a reasonable expectation of continued employment, but otherwise risk losing job security rights. Since 2021 casual workers must get an offer of a permanent contract offer after 12 months unless there are reasonable grounds to not make the offer. Other types of atypical work contract include part-time, fixed-term and labour hire staff. First, since
9568-573: 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
9776-435: A stagnation of wages. Before 1993, the law formally did not allow strike action at all, although in practice many strikes took place. Disputes were meant to be solved by compulsory arbitration, leading to notable instances of union officers being sued in tort for millions in damages where they took actioin. This is because under old common law, a strike that breaks a contract may lead to the imposition of industrial torts. Under
9984-632: A system of arbitration. 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". This was used to pass the Commonwealth Conciliation and Arbitration Act 1904 where
10192-413: A trade or business of his own", and viewed a contract's terms as obscuring reality, not revealing it. As a court said in 1988: "The parties cannot create something which has every feature of a rooster, but call it a duck and insist that everyone else recognise it as a duck". As well as control, courts looked at multiple factors including whether work was done personally, whether the worker works for others,
10400-499: A trade union representative was included on the board of the new Electricity Commission of New South Wales . Other state electricity authorities did the same. The NSW State Dockyard and the railways included worker directors. There was also a worker director on the board of the South Australian Meat Corporation from 1972. In 1984 there were 19 different state corporations with worker directors. Under
10608-539: 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
SECTION 50
#173278005490510816-405: A union, and also taking part in collective action including strikes that count as "protected industrial action". If an employee alleges 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." The claimant may apply to the Fair Work Commission which holds
11024-606: A union, freely associate and take action including strikes, are universal rights in international law, enshrined after the experience of mass war and dictatorship. Australian law provides minimal protection, and has been consistently criticised by the International Labour Organization . There is a basic right to join a union, yet the High Court has made protection for discrimination against union members weak by enabling employers to argue they did not intend to target union members with adverse action. There
11232-435: A woman won a claim for indirect discrimination, after she was told she could not work full time, and also use her break time to transfer her child from school to after school care. Such a rule disparately impacted women, especially since it was found that other staff could take cigarette breaks without reducing their work hours. Indirect discrimination is often structural, and this is seen in the gender pay gap of 21.7% across
11440-476: Is B's duty to give them proper food and water, and such shelter and rest as they need; and, as wages are the means of obtaining commodities, surely the State in stipulating for fair and reasonable remuneration for the employees means that the wages shall be sufficient to provide these things, and clothing and a condition of frugal comfort estimated by current human standards. Higgins also said the following. I regard
11648-516: Is a limited right to take collective action, to get a collective agreement with a single employer. Australia has a significant history of workers voting for representation on boards of directors of the corporations or other governing bodies where they work, particularly in New South Wales , and in federal public services such as the ABC and Australia Post . However Australia has not yet passed
11856-400: Is a question of public interest. An employer's refusal to follow an order can be pursued in Federal Court. A dismissal for redundancy means that a job is no longer economically necessary for an employer's operations. To ensure the power of dismissal is not misused, the law attempts to ensure that the social costs of unemployment and dislocation are factored into the employer's decisions. Under
12064-418: Is a right to collective bargaining, but only within "single-employer" enterprises, creating major legal obstacles to sectoral collective bargaining found in other prosperous countries. Key to this is the prohibition on the right to take solidarity action , i.e. workers of one employer striking with workers of another employer to get a multi-employer deal, especially to prevent anti-productive competition. There
12272-498: Is a right to community service and jury leave of up to 10 days. Eighth, there is a right to request flexible work for carers and parents with school age children, and only be refused if there are reasonable business grounds. Unlike most wealthy OECD countries, 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. To compensate for
12480-408: 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". Clauses in awards and collective agreements to give preferences to union members over non-members are also prohibited. The positive side of freedom of association is that the law protects everyone against adverse action for joining
12688-400: Is a universal human right in international law, and with full employment it is the basis of economic stability and prosperity. Most Australian employees are entitled to reasonable notice before any dismissal, fair reasons and a procedure before being dismissed, and a redundancy payment. Both state and federal governments have a duty to ensure full employment through fiscal policy, while by law
SECTION 60
#173278005490512896-434: Is accepted as reliable is capable of discharging the burden", and that this achieved a "balance". The High Court repeated this stance in CFMEU v BHP Coal Pty Ltd , where a striking worker held a sign saying "No principles SCABS No Guts", and was dismissed for violating BHP's "workplace conduct policy". The High Court sided with the employer's assertion that dismissal was for uncivil language, not union activity, and said that
13104-483: Is driving pay down in a race to the bottom across a whole sector. The ban is enforceable by the Australian Competition and Consumer Commission regardless of whether the parties to a dispute pursue a complaint. It is not yet clear that self-employed workers have the right to take collective action, although under international law, the right to act and strike is guaranteed for "everyone". Although
13312-526: Is expressed to, and the agreement is legally binding with civil remedies for breach, with the right of the employer, any employee, and the union having standing to sue in federal court. The right to take collective action, including the "right to strike" within "the laws of the particular country" is a universal right in international law. However, Australian law is one of the most restrictive on unions' freedom to take action to protect members' interests, and progressive restrictions on voice at work have matched
13520-494: Is largely confined to individual enterprises, rather than multi-employer bargaining. Combined with weak protections for union organising, this means that coverage of collective agreements was just 15% in 2022, compared to coverages typically over 80% in wealthier European Union member states that promote sectoral collective bargaining . Under the Fair Work Act 2009 sections 247-252, the Fair Work Commission may authorise "single interest employers" to bargain, which can include
13728-459: 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. To claim, claimants must fill in a form on the FWC website within 21 days of the dismissal date, and extensions are rarely granted. The employer is asked to respond, there is a telephone conference, and if not resolved the FWC can determine the case by arbitration. The FWC only allows appeals if it thinks there
13936-407: Is majority support, "using any method the FWC considers appropriate", such as petitions, pledge cards, union lists, or in rare cases a ballot. 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
14144-428: Is no use trying to pretend He did, or to make laws as though He did, or to pay people according to their requirements instead of according to their services." The Court determined that a fair and reasonable wage was to be determined according to the needs of a male worker not according to the worker's value to the employer. What then was a fair and reasonable wage for a female worker? Higgins J considered this in 1912 in
14352-455: Is that "casual" employees have no rights unless they have a "reasonable expectation of continuing employment by the employer on a regular and systematic basis". In Ponce v DJT Staff Management Services a traffic controller employed through a labour hire firm, and classed as "casual", had unpredictable work shifts and some breaks in work, but was still held to have had work on a regular and systematic basis. Unlike in most high income countries,
14560-399: 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. An employer may give pay in lieu of notice under section 117(2) and terminate the contract if this has been accepted by the employee. The one situation where notice is not required is where
14768-400: Is that employees have a right to at least four weeks' paid leave, or five weeks if the employee is a shiftworker. Third, under sections 114 to 116 there are additional paid public holidays, which vary by state but generally amount to between 8 and 12 extra days , depending on where weekends fall. However, an employer can make a "reasonable" request for employees to work on public holidays, and
14976-581: The FWA 2009 section 76 there is a further right to one year, but of unpaid leave, extendable to two years if an employer accepts the request. There are rights to a safe job during pregnancy or paid leave if no job is available, to return to the same position as before or if it does not exist to one "qualified and suited nearest in status", and to be consulted about any proposed changes to the job while on leave. In practice these rules encourage women to take more time off work for child care than men, and so contribute to
15184-561: The Fair Entitlements Guarantee Act 2012 the federal government has a scheme for payments to employees whose wages are not otherwise covered. The Barger decision was made in the context of the then prevailing reserved State powers doctrine , which was itself overturned in 1920 in the Engineers case . Since 2005, Australian industrial relations laws , such as WorkChoices , have been primarily based on
15392-683: The Fair Work Act 2009 does not expressly distinguish direct and indirect discrimination as other federal legislation does, and state legislation does, if a rule that is neutral on its face has a disparate impact on one group, this will also be unlawful. For example, in Australian Iron & Steel Pty Ltd v Banovic an employer’s policy for redundancy based on “last in, first off” was held to be indirect discrimination against women, who at that mining workplace has mostly only been recently employed. Similarly in Song v Ainsworth Game Technology Pty Ltd
15600-471: The Fair Work Act 2009 fails to treat expiry of fixed-term contracts as a dismissal that must be fair. The meaning of dismissal includes termination, or being forced to resign by the employer's conduct, or demotion with a significant reduction of pay or duties. 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
15808-489: The Fair Work Act 2009 section 19, industrial action is performing work "in a manner different from that in which it is customarily performed" or "a restriction or limitation on, or a delay in, the performance of work". It is not clear whether picketing is always industrial action, given a Federal Court case before the FWA 2009 doubting that it was, leading to the result that picketing would not be protected action, but also that
16016-547: The Fair Work Act 2009 section 302, employees, unions and the Sex Discrimination Commissioner can make an equal pay claim. The first post-2009 cases were brought by unions for social and community service workers, supported by the government. The Fair Work Commission interprets the appropriate comparator narrowly. Before 2009, the Librarians case , librarians were awarded a pay increase since
16224-528: 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. The goal of the law is to avoid job losses, and so under section 531(3) the employer must consult unions on proposals on "measures to avert or minimise the proposed dismissals", alternative employment or mitigating adverse effects of proposed redundancies. If redundancies must take place,
16432-434: The Fair Work Act 2009 section 61(2) there are eleven " National Employment Standards ", and eight concern working time (while one is on casual work, and two are on job security). Like pay can go beyond the national minimum wage, modern awards set by the Fair Work Commission , and collective agreements between unions and employers, often do have higher standards. First, under section 62 the standard maximum working week for
16640-409: The Fair Work Act 2009 , the Fair Work Commission sets a national minimum wage, a system of minimum pay scales in modern awards , and oversees collective bargaining between unions and employers. The National Employment Standards also set a floor of rights for a standard maximum 38 hour week, at least 28 to 37 days of annual leave and public holidays, and long service leave. Modern awards set by
16848-563: The Public Service Reform Act 1984 , section 12 required that each government department "in consultation with relevant staff organizations... cause to be developed an industrial democracy plan for the Department". By 1995, 13% of all workplaces surveyed had employee representatives on boards, most common in education, health, and communications. Federally there were worker directors at statutory corporations including
17056-557: The Brimbank City Council, ‘the spaciousness of the lay-out of Leith Avenue suggests the influence of Garden City planning principles’. Lastly, this segment from Australian Home Builder in 1926 demonstrates the significance of Sunshine to the wider Garden City movement in Australia and the attractiveness of Garden City ideals as a means of overcoming the limitations of urban life: If a cluster of outer suburbs could be ringed around Melbourne, all planned and developed with
17264-596: 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 achored 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
17472-549: The Excise Act 1906 , which gave rise to Higgins's decision, was constitutionally invalid because the legislation was essentially concerned with the regulation of employment conditions, a power not held by the Commonwealth Parliament and not capable of being supported by the excise power. The High Court further found a tax based on compliance with certain labour conditions which could differ from State to State
17680-554: The Excise Tariff Act 1906, Higgins was a member of the Australian Parliament and spoke in support of the bills that imposed custom and excise duties that were payable on certain agricultural machinery, including stripper harvesters . The Excise Tariff Act 1906 contained a proviso that the excise would not be payable if the manufacturer paid "fair and reasonable" wages as follows: Provided that this Act shall not apply to goods manufactured by any person in any part of
17888-415: The Fair Work Commission , for 150 workplace sectors in 2024, must contain terms on working time, consultation before changes, dsiputes, and flexibility, and usually contain further rights such as higher overtime pay, rest breaks, more holidays, and superannuation to ensure people a decent retirement income. There are also rights to paid parental leave , at a minimum of 20 weeks shared between parents, and
18096-591: The Fair Work Regulations 2009 Schedule 2.3 prescribes a model consultation term. Under section 172, other negotiated content can be anything "pertaining to the relationship between an employer" and "employees", or unions, payroll deductions from wages for union membership dues, and how the agreement will operate. Several court decisions have unduly limited what counts as pertaining to the employment relationship, including not regulating trading hours as opposed to working time, how to deal with surpluses in
18304-466: The Federal Court of Australia in 1977. 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
18512-489: The Fruit pickers case , rejecting an application for equal pay for women, deciding that this would represent equal pay for unequal work. His Honour held that women should only be awarded the full male rate where there was the risk of cheap female labour displacing men, setting a common rate for fruit pickers of 1 shilling per hour. The work of packing at the factory was "essentially adapted for women with their superior deftness and
18720-495: The Hawke-Keating government Australia enacted a leading model for voice in worker's capital, now in the Superannuation Industry (Supervision) Act 1993 section 89, requiring an "equal numbers of employer representatives and member representatives" on the board of directors or trustees in a super-fund. However in 2010 this was amended to introduce so called "independent directors" who held the balance of power, appointed by
18928-554: The Hawke-Keating government , the Superannuation Industry (Supervision) Act 1993 passed to ensure at least equal employee or beneficiary election rights on superannuation boards that provide workplace pensions, although the Abbott government reduced protection by enabling "independent" members selected by the incumbent board. When the Liberal coalition under John Howard regained office, its Workplace Relations Act 1996 reduced
19136-543: 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
19344-583: The Labor ministry , because Labor had no suitably qualified lawyer in Parliament. In October 1906 Higgins was appointed to the High Court and the following year O'Connor J resigned as President of the Commonwealth Court of Conciliation and Arbitration and was replaced by Higgins J. Hugh Victor McKay was one of Australia's largest employers, manufacturing agricultural machinery, most notably
19552-472: The Reserve Bank of Australia must also achieve a stable currency, full employment, and prosperity and welfare for the people of Australia. In Australian law, most employees have the right to reasonable notice before dismissal, and dismissals must be for a fair reason, however these rights are not universally upheld. At common law, everyone has the right to reasonable notice before either side terminates
19760-483: The corporations power in section 51(xx) of the Constitution , which enables labour laws to be of much wider reach, without the constraints imposed by the conciliation and arbitration power. The corporations power gives the federal parliament power to make laws with respect to "trading and financial corporations formed within the limits of the Commonwealth", as well as 'foreign' corporations. The Victorian Government has referred most of its industrial relations powers to
19968-411: The gender pay gap as well as the motherhood penalty , compared to countries that have equal paid parental leave for parents on a use-it-or-lose-it basis. When using its powers to set awards, the Fair Work Commission is now required by section 134(1)(ab) to take into account "the need to achieve gender equality in the workplace". Sixth, there is the right to care or compassionate leave. Seventh, there
20176-411: The " higgling of the market " for labour, with the pressure for bread on the one side, and the pressure for profits on the other. The standard of 'fair and reasonable' must therefore be something else, and I cannot think of any other standard appropriate than the normal needs of an average employee, regarded as a human being in a civilised community. If, instead of individual bargaining, one can conceive of
20384-448: The "Higher Education Industry – Academic Staff – Award 2020" sets a 24 level pay scale with both annual salaries for full-time employees, and comparable minimum hourly rates. These awards are usually far lower than under enterprise bargaining agreements , but are designed to place a minimum floor to prevent unfair competition . The objectives of the FWC under section 134 are improving secure work, gender equality, encouraging bargaining and
20592-578: The "seniority of their role" who were traditionally not covered, while "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. This means that, unless enterprise bargaining covers them, fair pay scales do not constrain rip-off executive pay that diminishes the pay of everyone else. Third, there are enterprise agreements, which are bargained between unions and employers to be higher, and under section 57 will displace any sector-wide award. However in 2012, enterprise agreement coverage reached
20800-732: The 1900s and the principles played out in various ways. H.V. McKay’s development at the then town of Sunshine, 12 km from the centre of Melbourne, exemplifies this and represents an "early Australian version of the Garden City ideal". As was reported in The Burrowa News in May 1926, "Mr. McKay from the start took an active interest in Sunshine, and was lavishly spending money there to make the conditions of his employees as ideal as possible. A Garden City soon sprang up, having as its centre
21008-720: The ABC, Qantas, Telstra , Australia Post and the Reserve Bank during the ALP Government from 1983-96. There were also requirements for employee-elected directors at major universities, such as the University of Melbourne , but not yet requirements for a majority to be elected by staff as is found in institutions such as Cambridge and Oxford. Equal treatment is a fundamental right in international law because it has been universally recognised that people should be judged by
21216-591: 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. This includes
21424-618: The Act if they should have been aware and taken preventative steps. The Modern Slavery Act 2018 also contains so called "due diligence" requirements for corporations to prevent forced labour in supply chains, but fails to impose vicarious liability , or personal liability, regardless of the mindset (or wilful ignorance) of directors. Finally, in Gupta v Uber Australia Pty Ltd the Fair Work Commission accepted that an Uber Eats driver
21632-510: The Act, Parliament insists on the payment of the Excise duty. Higgins J thought the probable effect of the decision would be that McKay must elect between paying wages according to the standard he set or paying the excise duties. McKay did neither and both McKay and another manufacturer of agricultural machinery in Melbourne, William Barger, were prosecuted by the Commonwealth for failing to pay
21840-505: The Australian workforce, meaning women employees earn on average 78.3 cents compared to each $ 1 for male employees, according to the annual employer census. The main reasons for the gender pay gap are sex discrimination in child care and parental leave laws 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. Under
22048-612: The Braybrook Implement Works (1904). He named the new enterprise the Sunshine Harvester Works after his Sunshine Harvester, which was one of his major products. The name "Sunshine" is assumed to have been given by McKay to his harvester works after he attended a lecture by the American evangelist Reverend Thomas De Witt Talmage who visited Victoria in 1894. Another account holds that the name
22256-468: The Commonwealth under conditions as to remuneration of labour which— H. B. Higgins had been a member of the Parliament of Victoria and in 1896 supported the trial introduction of a minimum wage . He successfully argued at the 1897-1898 conventions that the constitution should contain a guarantee of religious freedom, and also a provision giving the federal government the power to make laws relating to
22464-755: The Commonwealth, most recently via the Fair Work (Commonwealth Powers) Act 2009 (Vic), resulting in a majority of public sector workers in Victoria being covered by the FW Act. Sunshine Harvester Works The Sunshine Harvester Works was an agricultural equipment factory in Melbourne, Australia. It was founded by industrialist H. V. McKay , and engineering development was headed by H. B. Garde. Having established an agricultural implement works in Ballarat he moved his factory and many of his employees to Braybrook Junction , in 1906, where he had earlier purchased
22672-604: The Conciliation and Arbitration Court. Former Prime Minister Bob Hawke described the Harvester judgment as foundationally important, stating "The philosophy was so right and so in tune with the Australian ethos that it spread. And not just through federal jurisdiction - it became embraced by various state jurisdictions. I think it is impossible to overstate the significance of both the judgement and its author, Henry Bournes Higgins." Conservative commentator Gerard Henderson
22880-479: The Court, in dealing with their application, would be limited to the information obtained in McKay's hearing unless there was some exceptional circumstances. Several large manufacturers were represented in the hearing, but did not call any evidence. The hearing took place in Melbourne over 20 days between 7 October 1907 to 1 November 1907. McKay's case was that fair and reasonable wages should be calculated according to
23088-465: The Customs authorities, crumbled to nothing." In 1922, McKay wrote to Prime Minister Hughes on the subject of wages boards and collective bargaining, stating "I do not agree with the basic wage for the Commonwealth. In other parts of the world it is a minimum wage for the minimum man and a maximum wage for the maximum man - each man according to his ability and capacity. God did not make men equal - it
23296-409: The FWC could not issue stop orders against pickets. To begin industrial action for an "employee claim" it must be against a single-business enterprise, rather than multiple employers, it cannot even be part of so called " pattern bargaining " seeking the same agreements across different enterprises, and it must not be taken before an enterprise agreement has expired. The union must get permission from
23504-531: The FWC has a duty to end the gender pay gap , given the prior failure to equalise and lengthen parental leave in awards and collective agreements. Unlike wealthy OECD countries, Australian law allows employers to designate employees as "casual", and take away universal rights such as paid holidays or job security in return for a nominal 25% extra pay even if they have lowered market pay in practice to nullify this "casual loading": in 2024, 22% of Australian employees were casual. In international law , "everyone" has
23712-454: The FWC must issue a "stop order", which may be backed by an injunction of the Federal Court, and ultimately sanctions for contempt of court including prison. There is a four hour pay penalty for unprotected action, and by law workers may not be paid during industrial action. Where duties are partially performed, at common law there is an obligation to pay for work accepted, unless the employer makes clear they will not accept partial performance,
23920-544: The FWC to do a protected action ballot, and the FWC must grant an order where the union has a majority support determination and is "genuinely trying to reach an agreement" by negotiation. The ballot must state what kinds of action are proposed, and be overseen by the Australian Electoral Commission or an independent agent, and over 50% must turn out to vote, with over 50% being in favour of action. A union then must then give notice of three days to
24128-441: The Fair Work Commission for unfair deactivations, unfair terminations, and unfair contracts. Although most Australian workers have a system of rights to support fair work, entry into a work relationship is through a contract based on consent. Collective bargaining through unions is one way that Australian workers achieve higher pay, but the Fair Work Act 2009 also creates a national minimum wage, and minimum scales depending on
24336-550: The Fair Work Commission held that a law firm consultant, Dr Rumble, could lawfully be dismissed for publicly criticising the Department of Defence for ignoring problems of sexual misconduct in the defence forces, because breach of the firm's media comment policy was a valid reason for dismissal – and this was accepted to be lawful. But Perram J also gave the opinion that if the dismissal had taken place in NSW, which does not protect political opinions, then section 351(2)(a) would have defeated
24544-401: The Fair Work Commission may make an order for the behaviour to cease and to be corrected, and must do so within 14 days. This does not, however, result in compensation, and cannot be done if the bully or the victim are no longer employed. Ideally, employers should also act by having an anti-bullying policy and training its supervisors and workforce to create a cohesive culture at work. Although
24752-418: The Fair Work Commission. In 2024 there were 150 covering different workplace sectors. These have minimum pay scales depending on employees' experience, qualifications, and skills. For example, the "Legal Services Award 2020" sets minimum weekly rates for "levels 1 to 6" for clerical and administrative staff (but not lawyers), the "Reserve Bank of Australia Award 2016" sets "levels 1 to 5" for annual salaries, and
24960-588: The High Court also, more controversially, said that he could not be rostered solely for domestic flights because this could impair the employer’s roster management. 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). McHugh J said that ‘carrying out
25168-472: The High Court in New Faith v Commissioner of Payroll Tax (Victoria) this will include all practices that would protect the “religious susceptibilities” of adherents to that faith. A third exception in section 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". In Rumble v The Partnerships
25376-470: The High Court said that under section 172 an agreement could be made even though the employees had not begun work. The FWC can make "scope orders" under section 238 on whether employee groups are fairly chosen, given geographical, operational or organisational distinction. Employers can always voluntarily agree to collectively bargain, but if they do not, under section 237 the Fair Work Commission can require good faith bargaining after determining that there
25584-476: The Legislation has not indicated what is meant by 'fair and reasonable,' what is the model or criterion by which fairness and reasonableness are to be determined. It is to be regretted that the Legislature has not given a definition of the words. It is the function of the Legislature, not of the Judiciary, to deal with social and economic problems; it is for the Judiciary to apply, and, when necessary, interpret
25792-504: The National Employment Standard in section 119 requires minimum redundancy payments of at least 4 weeks' pay for employees that have worked over 1 year to 16 weeks' pay for people with at least 9 years' work, while those over 10 years' work may take advantage of long service leave and redundancy pay. However, employees can not take redundancy if they have been offered an acceptable alternative job. There are also
26000-511: The Sunshine Harvester. McKay had a reputation for discouraging union membership, and had previously closed his factory at Ballarat and moved to the Sunshine Harvester Works to avoid paying workers under the determination of a wages board. Under the Excise Tariff Act 1906, he was required to pay an excise tax unless he paid wages that were fair and reasonable. McKay applied to the Commonwealth Court of Conciliation and Arbitration for
26208-658: The Victorian Heritage Register. McKay's Sunshine Estate (now the eastern part of the suburb of Albion , part of greater Sunshine ) is considered a pioneering development of a company town on the town planning principles of the Garden city movement . The principles of the Garden City movement were first developed in England by Ebenezer Howard in 1898 and re-applied in various contexts and forms. According to The Oxford Dictionary of Human Geography ,
26416-585: The Workplace Relations Act 1996 section 526, awards have been able to provide equal treatment for part-time workers. Part-time employees are often also casual employees and not treated equally regarding holidays and job security, and this has a negative disproportionate impact on women. Second, fixed-term staff are treated unequally compared to permanent staff in that the simple expiry of a fixed term counts as an unchallengeable reason for dismissal, no matter how capriciously or maliciously motivated
26624-467: The absence of rights, modern awards typically grant a 25% "casual loading" additional pay, but potentially no holidays at all, putting Australia at odds with European Union practice There is also no legal mechanism to prevent employers rates of pay before the 25% loading is added. Under the Fair Work Act 2009 section 15A a casual employee exists if the relationship has an "absence of a firm advance commitment to continuing and indefinite work", replacing
26832-706: 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 (Work Choices) 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 (only bargaining agents),
27040-450: The applicant's undertaking as a marvel of enterprise, energy and pluck… he is allowed – if my view of the Act is correct – to make any profits that he can and they are not subject to investigation. But when he chooses, in the course of his economies, to economise at the expense of human life, when his economy involves the withholding from his employees of reasonable remuneration, or reasonable conditions of human existence, then, as I understand
27248-422: The award, saying that the FWC had not erred in finding a breach of good faith. Single workplaces may have multiple unions, and in such cases an employer may apply to the FWC for an order that bargaining representatives meet to elect one to represent all of them if "the bargaining process is not proceeding efficiently or fairly because there are multiple bargaining representatives for the agreement." The content of
27456-400: The basis of "attitude", but where all supervisor's assessments of "attitude" came from Scott's role in union organising, and Scott had an objectively better work record than others scored higher. To get fair wages beyond the national minimum wage, and award wage scales, unions and employers may collectively bargain. Unlike most wealthy OECD countries, Australia's collective bargaining system
27664-432: The bishops that addressed the condition of the working classes. Higgins ruled that remuneration "must be enough to support the wage earner in reasonable and frugal comfort." A 'fair and reasonable' minimum wage for unskilled workers of 7/- ( 7 shillings ), which is around 70 cents, or 42/- per week. Later surveys showed that this minimum was adequate to provide subsistence. Higgins's judgment read as follows: One finds that
27872-530: The claim. Harassment and bullying are persistent problems, particularly when they relate to discriminatory conduct. Harassment is unlawful based on similar protected characteristics as general equal treatment rights in different statutes, although there is not yet a single coherent codification of standards. Disability Discrimination Act 1992 For example, under the Sex Discrimination Act 1984 section 28A, sexual harassment means conduct of
28080-404: The company, and doing so for decades. The drivers were originally contracted as employees, but then their contracts were unilaterally altered in 1985-6 to deem them self-employed. Yet in the court's opinion, "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
28288-584: The concept of the employer whose action "is disproportionate to the gravity of the misconduct" of the employee. 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. For example, in Pastrycooks Employees, Biscuit Makers Employees and Flour and Sugar Goods Workers Union (NSW) v Gartrell it
28496-436: The conciliation and arbitration of industrial disputes. The industrial disputes proposal was initially unsuccessful, however Higgins was undeterred and succeeded in 1898. Despite these successes, Higgins J had opposed the draft constitution produced by the convention as too conservative, and campaigned unsuccessfully to have it defeated at the 1899 Australian constitutional referendum. After the federation of Australia , Higgins
28704-500: The content of their character, their skills and knowledge, and not irrelevant characteristics. An equal treatment claim under the Fair Work Act 2009 enables a complaint to the Fair Work Commission , similar to other labour rights. By contrast, claims under the Racial Discrimination Act 1975 , the Sex Discrimination Act 1984 , Disability Discrimination Act 1992 and Age Discrimination Act 2004 enable
28912-531: The contract had said, given his length of service, seniority and dedication over the years. As well as these common law standards, the Fair Work Act 2009 section 117 requires a bare minimum of 1 week's notice before 1 year, 2 weeks' notice for 2 years, 3 weeks' notice for over 3 years, and 4 weeks' notice for over 5 years, but also an extra week for employees over 45 years old who have worked more than 2 years. Modern awards can and often do have higher standards, and so do collective agreements. The dominant view
29120-502: The coverage for fair wage agreements historically low. Employees of several employers may also ask the FWC for a special "low-paid bargaining" authorisation under sections 241 to 246, if worker pay is particularly bad and bargaining power weak, but even then employees do not have a right to take collective action. Under sections 260-265, the FWC may make a low pay determination if bargaining does not work, but in practice no multi-employer agreements have resulted. Despite this lack of coverage,
29328-494: The decision was of international significance. In 1906 the second Deakin government was in power, with support from the Labor party . Prime Minister Deakin's "New Protection" policy was to provide tariff protection to employers in exchange for "fair and reasonable" wages for employees. In implementing this policy, the Commonwealth government introduced two bills, that would become the Customs Tariff Act 1906, and
29536-633: The employee may only refuse if reasonable, based on factors again including workplace needs, family, overtime rates, and notice. Fourth, there is a right to long service leave which vary by state and award, for instance 2 months paid leave after 10 years in New South Wales. Fifth, there is a disjointed right to paid parental leave under the Paid Parental Leave Act 2010 , which entitles both parents to share 20 weeks paid leave (but at least 2 weeks reserved for one). Also under
29744-545: The employer may escape this duty if they show that it would impose an unjustifiable hardship, taking account of the expenses and the employer’s capacity to afford it. For example, in Daghlian v Australian Postal Corporation it was held to be a reasonable adjustment that the employer provided a stool for a worker who would otherwise usually be required to stand. This modifies the “inherent requirements” defence found in section 21A(1)(b). Job security, as part of social security,
29952-494: The employer refused to cooperate despite majority employee support for the union, and the FWC granted the APESMA an order (1) requiring a list of matters the employer was prepared to include in a bargain, and terms it would accept, (2) to cease unilaterally determining a standard form contract for staff, (3) to ensure someone with decision-making capacity attended meetings, (4) to meet within 21 days. The federal court partially upheld
30160-449: The employer's capacity to pay. While the High Court of Australia in 1908 held that the Excise Tariff Act 1906 was invalid in R v Barger , the judgment nevertheless continued to be the basis for the minimum wage system that extended to half of the Australian workforce in less than 20 years. The decision was credited as the foundation for the national minimum wage included in the Fair Work Act 2009. As well as national ramifications,
30368-399: The employer, and start action within 30 days, or get an extension for another 30 days from the FWC, though action may continue indefinitely until there is agreement or the bargaining period is terminated. Protected industrial action is immune from liability in tort, so long as there is no personal injury, property damage or defamation. However if industrial action is taken that is unprotected,
30576-474: The employer. However employers may avoid liability if they have taken "all reasonable steps" to prevent harassment, which will usually mean swift action after a complaint. The general law of tort may also provide remedies where an employer's breach of the duty of care results in particular harm, such as psychiatric injury. In Naidu v Group 4 Securitas Pty Ltd Mr Naidu, while working as a security guard through labour hire firm ISS Security at Nationwide News ,
30784-439: The employment without endangering the safety of other employees is an inherent requirement of any employment’ (even though there is medically no danger). A second exception in section 351(2)(c) is that religious organisations with “doctrines, tenets, beliefs or teachings” may take action (even if otherwise adverse) in good faith to avoid injury to the religious susceptibilities of adherents of that religion or creed . According to
30992-416: The enactments of the Legislature. But here this whole controversial problem, with its grave social and economic bearings, has been committed to a judge, who is not, at least directly, responsible, and who ought not to be responsible to public opinion. even if the delegation of duties should be successful in this case, it by no means follows that it will be so hereafter. I do not protest against the difficulty of
31200-521: The enterprise agreement. In the court's view it was not enough that work was done in Australia, and it mattered that contracts were made in foreign countries with foreign corporations. Fourth, franchisors are subject to obligations under the Trade Practices (Fair Trading) Act 1998 to disclose information, allow franchisees to freely associate, not unfairly terminate contracts, and under the FWA 2009 sections 558A-C they are liable for breaching
31408-465: The excise. The defences of Barger and McKay included an objection that the Excise Act 1906 was invalid. That objection was referred to the Full Court of the High Court for hearing. While this is sometimes referred to as an appeal, this was not a direct challenge to the Harvester judgement and Higgins sat as one of the five judges in the High Court. The High Court found in R v Barger (1908) that
31616-559: The factory and costs for supporting their families. In the Harvester Judgement , he obliged McKay to pay his employees a wage that guaranteed them a standard of living which was reasonable for "a human being in a civilised community", regardless of his capacity to pay. McKay successfully appealed this judgement, but it became the benchmark industrial decision which led to the creation of a minimum basic wage for Australian workers that dominated Australian industrial relations for
31824-496: The factory to become the largest manufacturing plant in Australia and, at its peak, it employed nearly 3,000 workers. In 1907, following a residents' petition, the locality was officially renamed Sunshine in honour of the factory. Housing for the Sunshine Harvester Works' employees swelled the local population and the town of Sunshine was touted as the " Birmingham of Australia". The Sunshine Harvester Works
32032-451: The federal government has not acted. Despite these rights to formal equality, structural problems (including unequal parental leave, and historic disadvantage) 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%. The Fair Work Act 2009 section 351 enables complaints of discrimination to be made against "an employer" for "adverse action against
32240-553: 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
32448-421: The first general right against race discrimination. However, in 2019 the median adjusted weekly household income for Indigenous Australians over 15 was just $ 623 compared to $ 935 for non-Indigenous residents, a 33.3% race pay gap. In 2016, the census showed a gap of 72% employment for non-Indigenous Australians to just 47% employment rate for Indigenous Australians. There have not yet been institutions to set aside
32656-500: The form in which the foundational principles were applied. H.V. McKay was, undoubtedly, an individual who had yielded influence on the manner and form in which the principles were applied and adapted to the Australian context in the early 1900s. Moreover, examination of the relationship between Garden City principles and McKay’s plan, including the early increase in industrial efficiency that the development of Sunshine facilitated, points to social and cultural changes that were occurring at
32864-485: The great works of H.V. McKay Pty Ltd, which occupy more than 60 acres of ground, on which more than 30 are built on." The basic principles of the Garden City movement that evidently influenced McKay include: the development of an entirely new city on rural land, the development of housing on large plots, and that the centre of town should comprise and ornamental garden surrounded by civic buildings. McKay’s plan for
33072-485: The inclusion of the last phase of human life left outside the scope of law. In response to the High Court decision, McKay stated "The Excise Act was declared to be ultra vires - The Federal Parliament had gone beyond its powers, all the ingenuity and eloquence spent on the measure, all the litigation devoted to its practical enforcement, and all the elaborate conditions laid down by the Arbitration Court and by
33280-555: The incumbent board, even though the evidence suggested this was a step backwards. There is not yet express legislation to require that asset managers, to whom investment and shareholder voting was outsourced, must follow the voting policies set by elected representatives on superannuation fund boards, as is found in Switzerland. Second, Australian public enterprises, state laws, and private corporations have frequently created worker directors, and voting rights for employees. In 1952
33488-411: The judicial department within the range of political fire.... The provision for 'fair and reasonable' remuneration is obviously designed for the benefit of the employees in the industry; and it must be meant to secure to them something which they cannot get by the ordinary system of individual bargaining with employers.... The remuneration could safely have been left to the usual, but unequal, contest,
33696-583: 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. Australian work relationships begin with a contract, and carry basic rights for fair pay and conditions. Most rights are for "employees" (not
33904-457: 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
34112-500: The law allows so called " 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. For instance, in Shop, Distributive & Allied Employees Association v ALDI Foods Pty Ltd , the supermarket chain Aldi made an agreement with 17 prospective employees, ignoring the union, and
34320-489: The method of pay, ownership of equipment, trade marks, good will, and who got profits or bore losses. However, against this tradition, and international standards, the High Court in ZG Operations Australia Pty Ltd v Jamsek overturned the Federal Court to find that drivers who were made to buy their own vehicles were not employees, despite them bearing the employer's trade marks, working only for
34528-463: 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
34736-470: The next 60 to 80 years. By the 1920s, the company was running the largest implement factory in the southern hemisphere, and had led the international agricultural industry through the development of the world's first self-propelled harvester in 1924. At the time of McKay's death in 1926, the factory covered 75 acres (30.4 hectares). In 1930, the Canadian farm machinery manufacturer Massey Harris bought
34944-400: The obscurantist guise of a search for the "reality" of the situation". This opinion, meeting with widespread derision, was reversed by the Fair Work Act 2009 section 15AA(1) which 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
35152-503: The other side's bargaining representatives. The employer is not required to make concessions or reach agreement on terms, but it was held in Endeavour Coal v Association of Professional Engineers, Scientists and Managers that the employer "must genuinely participate in the bargaining process; it cannot adopt the role of a distinterested suitor, only rejecting offers and proposals made by the other bargaining representatives." Here
35360-420: The paid workforce, reflecting a flawed understanding of work and care where the normative worker of the labour market is without responsibilities to care for others. It thus ensured the continuance of the women's inferior place in the paid work force, only entitled to equal wages if their work threatened the position of men. Australian labour law Australian labour law sets the rights of working people,
35568-572: The party they truly work for, so that even a 22 year old backpacker doing menial labour on building sites was classed as self-employed. 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. 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
35776-435: The prescience and system that has been exercised in Sunshine, there would be no grounds for fearing the growth of new slums that now haunt many once-promising districts. Sunshine today illustrates how pleasant and secure life can be made when a powerful industrial concern undertakes the housing of its employes [sic]. Sunshine provides an interesting example of the way in which the Garden City idea filtered down to Australia, and
35984-547: The previous notion that an employee simply accepts they do in a contract. This reversed the decision of the High Court in Workpac Pty Ltd v Rossato , that where a contract states someone is casual, even if the employer is providing them with ongoing work in regular and systematic shifts in reality, they are still casual employees and not entitled to paid holidays under FWA 2009 section 86. Casual workers are protected by unfair dismissal after 6 months, or 12 months for
36192-459: The problem, but against the confusion of functions and against the failure to define, the shunting of legislative responsibility. It would be almost as reasonable to tell a Court to do what is 'right' with regard to real estate, and yet lay down no laws or principles for its guidance. In the course of the long discussion of this case, I have been convinced that the President of this Court is put in
36400-430: The provision of varied infrastructure), the development of housing on spacious lots, and the establishment of a central garden for the benefit of the public. These aspects combine to present an early Australian version of a Garden City, as well as the influence of an individual on the way in which Garden City principles were applied, and the direction of town planning in Australia. The Garden City ideal came to Australia in
36608-400: The reasons are for non-renewal. Third, under the FWA 2009 sections 306C-G there is a 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 . However unlike wealthier OECD countries the right is not automatic, and unavailable for workers of small businesses. The right to join
36816-622: 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. Australia's first federal labour rights followed
37024-405: The right to fair pay, to equal treatment, to join a union, to take collective action, and to social security including job security. 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
37232-573: 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
37440-412: The self-employed) who are defined by the reality of systematic unequal bargaining power compared to employers, usually organised in a corporate form. By law, rights are more important than contract terms that employers impose. 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 . Further, under
37648-630: The skill and education levels were comparable to better paid male-dominated industries. Structural discrimination also underlies much of the race pay gap in Australia. The first time Indigenous employees became legally entitled to equal pay with white workers, in cattle and farming jobs, was through a decision in 1966. The exclusion in the Conciliation and Arbitration Act 1904 section 4 for "persons engaged in domestic service" meant that many Indigenous women and girls employed as domestic staff were excluded. The Racial Discrimination Act 1975 created
37856-564: 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
38064-440: The suppleness of fingers" and this apparently justified a lower minimum wage of 9 pence per hour, which would provide for the woman's food, shelter and clothing but not that of her family. Until World War II, the female basic wage was, generally speaking, approximately 54 per cent of the male basic wage. The assumptions of a male bread winner and female domestic carer have been criticised as a deliberate policy of discouraging women in
38272-710: The terms of dismissal by contract, the Fair Work Act 2009 section 382 contains the right to be "protected from unfair dismissal", if the person is an employee, and under section 383 they have been working for at least 6 months, or one year for an employee of an employer with under 15 staff. Small businesses may have a defence if they comply with the Small Business Fair Dismissal Code . In addition, employees must be covered by an award or enterprise agreement, and have an income below $ 167,500 in July 2023 (the "high income threshold"). Another exception
38480-434: 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." 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. The Fair Work Act 2009 section 357 codifies
38688-454: The union executive, in contrast with a direct election model. Union membership among the workforce in 2024 was around 15%, having declined from a peak close to 60% in 1962, even though surveys routinely suggest that many more Australian workers would prefer to be covered by a union. The fall in membership followed the shift to enterprise bargaining, and the ban on the closed shop since 1996 . The Fair Work Act 2009 section 346(a) says there
38896-437: The voting rights on corporation shares, which are usually held by super funds, are typically outsourced to asset managers who are not yet bound to any consistent voting policy that reflects the interests of the workforce. Beyond fair pay, international labour law aims to reduce working time in line with rising productivity, for a fair work week with more holidays and time for education or retirement, unbound to an employer. Under
39104-427: The work. The unions, represented by Duffy KC and Arthur , led evidence from employees of McKay's factory and also their wives, union officials and others dealing with everything from the conditions at the factory and elsewhere to the cost of living, including the "reasonable enjoyments that a man enjoys in that state of life". Higgins J gave his judgment on 8 November 1907. Higgins J held that for McKay to pay
39312-413: The workplace sector. 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). First, the Fair Work Commission sets a basic "national minimum wage" each year for all employees not covered by a specific " modern award ", as
39520-522: The worth of each individual to the business and led evidence from eight witnesses, including from the factory superintendent, McKay's brother George. George McKay's evidence was that the workers received fair and reasonable wages that took into account their level of skill, experience, age, qualifications, complexity of work, equipment used, and level of danger. The employees at the Sunshine Harvester factory required less skill, judgement and discretion because of mechanisation which had simplified and standardised
39728-510: Was a combination of the Canadian and American interests of Massey Harris, and the British tractor firm of Harry Ferguson . However, from the 1970s, when many Australian-based manufacturing industries were experiencing financial difficulties, the business progressively contracted, and most of the factory was demolished in 1992, to make way for the development of the Sunshine Marketplace . The former bulk store, factory gates and clock tower, factory gardens, and head office complex are all listed on
39936-466: Was a discrimination within the meaning of section 51(ii) and a preference within the meaning of section 99. The judgment dominated Australian economic life for the next 60 to 80 years. Higgins's 1907 Harvester decision was regarded as a benchmark in Australian labour law . Despite the High Court's reversal in R v Barger , Higgins regarded the minimum wage as sacrosanct and applied the Harvester reasoning to subsequent judgments in his career as president of
40144-446: Was a member of the Australian Parliament as a member of the Protectionist Party , but was in broad agreement with the Labor party's social reforms. When the Labor Party sought to amend the Conciliation and Arbitration Bill to cover state railway employees, Higgins was one of the radicals who supported the amendments and helped bring down Deakin's government. When Labor formed a minority government in 1904, Higgins became Attorney-General in
40352-436: Was a policy, it was not consistently enforced and there were no prior warnings to the three who were caught. According to the Fair Work Commission, it is relevant whether the employee has a past disciplinary history, whether an employer has a "history of toleration or condonation of the misconduct", and the employees' past conduct, length of service and consequences for dependents. By contrast in Fussell v Transport for NSW it
40560-634: 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
40768-491: Was also the site of a protracted industrial dispute in 1907, between McKay and the unions representing the Sunshine workers. While this was based on claims for wages and conditions, McKay also argued that he should continue to receive import protection. The case was heard before H. B. Higgins at the Commonwealth Court of Conciliation and Arbitration in Melbourne between 7 October 1907 and 8 November 1907. Higgins heard evidence from employees and their wives regarding conditions at
40976-491: Was based on the view that employees have systematically unequal bargaining power , and therefore needed positive legal rights that would otherwise be lost in take-it-or-leave-it contracts that the employer imposed. 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. Courts asked whether workers were carrying "on
41184-418: Was critical of the decision, describing it as a deeply flawed decision representing a failed policy that was strong on sentiment that failed to consider the ability of employers to pay nor acknowledged geographical differences in the cost of living. Then, as now, the reaction to the Harvester decision was mixed. The Worker described it as a triumph of Equity and that it marked the beginning of an epoch, with
41392-469: Was excused from paying the excise duty. The Court therefore had to consider what was a "fair and reasonable" wage for the purpose of the act. H.B. Higgins declared that "fair and reasonable" wages for an unskilled male worker required a living wage that was sufficient for "a human being in a civilised community" to support a wife and three children in "frugal comfort", while a skilled worker should receive an additional margin for their skills, regardless of
41600-493: 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. Under section 390, the Fair Work Commission can order compensation or reinstatement, though in 2018 to 2019 of 8161 unfair dismissal conciliation cases, only 57 settlements included reinstatement, and of 229 arbitration cases just 13 resulted in reinstatement. Under section 392, compensation
41808-400: Was 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 in Australia provides people with workplace pensions in retirement, and employers must pay a "superannuation guarantee" of 12% of income from 2025 to approved funds. There may also be no unauthorised deductions of wages, and there is
42016-493: Was held too harsh to dismiss a bakery worker who refused to do a last minute delivery on his way home. In Agnew v Nationwide News Pty Ltd it was held to be unfair to fire employees who drank alcohol at lunchtime, because even though the company had a policy against this it was not consistently enforced especially among managers. In B, C and D v Australian Postal Corporation it was held to be unfair to dismiss three employees who accessed pornography at work because though there
42224-825: Was not a "reasonably foreseeable risk of cognisable psychiatric harm to the plaintiff", even though ISS was benefitting from Mr Naidu's labour as much as Nationwide News. Because the wider issue of bullying is a general problem, in 2013 the Fair Work Act 2009 Part 6-4B was added to prohibit being "bullied at work". This means repeated and unreasonable behaviour that creates a risk to health and safety. It includes "intimidation, coercion, threats, humiliation, shouting, sarcasm, victimisation, terrorising, singling-out, malicious pranks, physical abuse, verbal abuse, emotional abuse, belitting, bad faith, harassment, conspiracy to harm, ganging-up, isolation, freezing-out, ostracisim, innuendo, rumour-mongering, disrespect, mobbing, mocking, victim-blaming and discrimination." It must be repeated, and if so
42432-638: Was not an employee. The new Fair Work Act 2009 section 15P reverses this by requiring that an "employee-like worker" has the same rights paying regard to "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. The orders and guidelines can include terms on payment, deductions, working time, record-keeping, insurance, consultation, representation, delegates’ rights, and cost recovery. Employee-like workers may also apply to
42640-399: Was subjected to racial abuse, physical assault, threats to be fired and never work again, and making Mr Naidu work for free at the home of the abusive supervisor, Mr Chaloner. He was psychologically scarred, without a job and his marriage broke down as a result. On appeal, the NSW court upheld damages against Nationwide News of $ 1,767,050, but rejected damages against ISS on the basis that there
42848-473: Was suggested by James Menzies , who painted the first model. Through a revolutionary piece of marketing, this had gained a reputation as the first successful combine harvester in Australia. The factory became the largest in the Southern Hemisphere, and, in its early stages, McKay successfully increased the concentration and efficiency of the workers: ‘between 1907 and 1910-11, McKay’s workforce expanded from just over 400 to around 1500’. McKay rapidly expanded
43056-408: 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
43264-426: 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
#904095