Workplace Law Summary Notes 

 
 
The Nature of Workplace Law 
 
The changing nature of workplace law over time  
- Workplace law regulates the relationship between employees and employers, ensuring the 
rights of workers are protected.  
- Pre-modernisation period: in medieval times there was a feudal system with no recognition 
of workers rights.  
- As a result of the industrial revolution people were required as a labour force for the new 
factories being built  
- During this period the conditions of employment were harsh, the hours long and the work 
was often dangerous.  
- The doctrine of laissez-faire is that employees and employers should be free to make 
whatever arrangements they wish without government control. 
- Collective bargaining was eventually recognised and the workers’ representatives, the trade 
union, were bargaining with the employers for improved pay and conditions.  
- Society recognised the injustice of the industrial revolution towards the working class and 
demanded change. 
 
CLIMS:  
- Workplace Relations Amendment (Work Choices) Act 2005  
● New national system  
● Improved employment levels and national economic performance 
● Replaced the Workplace Relations Act 1996 Cth  
● Introduced NES → Created Fair Work Australia → FWC and FWO 
 
ABC 4Corners 2015: Price of Convenience  
● Workers underpaid, blackmailed, paid half award wage  
● Students immigrated from overseas can work 20 hours a week, but 7/11 was offering them 
more hours.  
● The workers remained silent as it would jeopardise their visa.  
● 7/11 management admitted to the court that non-compliance with workplace laws was 
relatively common among 7/11 franchises. 
● Investigation by the FWO found the operators had deliberately falsified information about 
number of hours being worked and the rate of pay  
● Magistrate said “​ compliance should not be seen as the bastion of the large employers with 
human resources behind them”  
 ● Reinforces the need for business to understand Australian workplace laws and observe 
compliance obligations   
● Reforms proposed by 7/11 
 
Contracts  
 
Of service  
- Employer is vicariously liable  
- Entitlements such as sick leave, holidays leave, workers compensation, minimum conditions 
(wage, hours of work)  
- Protected against unfair dismissal 
 
For service  
- Independent contractor 
- Conditions of an agreement may include: Contractor providing their own tools and services, has 
agreements with others, operates through a business name or company  
- Contractors do not have any ‘entitlements’ listed above  
- Are held liable for damage caused during work 
 
Express and implied terms  
 
Implied duties  
- An implied term is a promise that is binding on the parties to the contract, even though the 
parties have never discussed it.  
- For an employer: Provide work → pay wages → vicariously liable for actions of workers  
 
Expressed duties  
- An express term is one that is usually spoken or written into a contract.  
- Sick leave, holiday leave, workers compensation, superannuation 
- pay rate 
 
Awards and agreements  
- Awards are the minimum terms and conditions that must be included in a contract. 
- Used to be over 3000 individual awards, now there are 122 
- The Fair Work Act 2009 is the basis for the ongoing creation and variation of modern 
awards  
- Determined by a tribunal or commission as FWC can make, vary and revoke modern 
awards.  
 
Statutory conditions  
- Both state and federal governments have legislated to enforce minimum terms in an 
employment contract including the hours of work, holiday provisions, leave entitlement 
- 10 National Employment Standards (NES) → Maximum weekly hours, annual leave, long 
service leave, notice of termination 
- Employers must ensure workers’ compensation → Fair Work Amendment (Protecting 
Vulnerable Workers) Act 2017 → There is a tension of interest between the success of 
small businesses and the need to oblige to ethical workplace conditions 
 
Regulation of the Workplace 
 
State and federal framework  
- Most workplace law is now regulated by the Commonwealth under the Fair Work Act 2009 Cth, 
after the states agreed to forfeit their constitutional powers.  
- Up to 85% of employees became subject to federal legislation with the passing of Work Choices 
Act 2005 → represented a major shift in the separation of power between state and federal 
governments in industrial relations  
- Fair Work Act 2009 has greater coverage than Work Choices, from 1st January 2010 all states 
except WA forfeited their industrial relations powers to the Commonwealth, creating a new 
national industrial relations system.  
Federal Framework 
- Fair Work Commission  
- Fair Work Ombudsman Under the Fair Work Act 2009  
NSW Framework  
- Industrial Relations Commission under Industrial Relations Act 1996 NSW 
 
CLIMS: NSW v Cth [2006] HCA → Cth were allowed to legislate over exclusive powers, while NSW were 
allowed to legislate over residual powers 
“Hamburgled: McDonald's, Coles, Woolworths workers lose in union pay deals”​ - SMH 2016 → the EA did 
not pass the FWC’s BOOT 
“Macca's will have to pay tens of thousands of workers full penalty rates after its enterprise agreement was 
terminated by Fair Work” -​ Australian Financial Review 2019 
Workplace Relation Amendment (Work Choices) Act 2006 (Cth) 
● 14 allowable matters 
● Prior to work choices, collective bargaining was the main source of agreements (trade unions) 
● The Howard Liberal Government had majority in the House of Reps and Senate 
● AWAs could remove 14 allowable matters and therefore breached ICESCR art. 7,8 → AWAs were 
individual bargaining, not collective 
 ● breached the division of powers 
NSW v Cth 2006 (HCA) 
● AWAs had 2% lower wages under agreements and awards - ABC 2006 
● Senate Estimates Report 2006: 
- All AWAs removed protections  
- 64% of AWAs removed Annual leave 
- 63% stripped penalty rates 
2017 Federal Election: 
● Labour won and proposed significant industrial relations changes to create a fairer system 
 
Negotiations between employers and employees 
- Enterprise bargaining is the process of negotiating generally between employer and employee 
with the goal of making an enterprise agreement. 
- Fair Work Act imposes a positive obligation to bargain in good faith 
 
Enterprise agreement 
- An enterprise agreement is between one or more national system employers and their 
employees 
- Enterprise agreements are negotiated by the parties through collective bargaining in 
good faith 
An enterprise agreement must include: 
- Terms about the relationship between each employer and the employees 
- An expiry date for the agreement 
- A dispute settlement procedure, authorising either the Fair Work Commission or 
someone else 
- A flexibility term that allows for the making of individual flexibility agreements for the 
purpose of meeting the genuine needs of the employer and employees 
- A consultation term which requires the employer to consult their employees about any 
major workplace changes, and allows the employees to have representation  
Single enterprise agreement - Made between a single employer and employee 
Industrial action 
 
- Employees may go on strike or impose work bans, employers may lock out their employees. 
- Lock-out: Employers closes work premise or refuses to allow employees to work → aimed 
at forcing workers to accept certain conditions 
- Strike: employees refuse to work on a certain day or for a certain period of time to persuade 
the employer to agree to a new enterprise agreement/their terms. 
 
Protected industrial action  
- For industrial action to be lawful it must be protected industrial action  
The requirements for taking protected industrial action include:  
● An existing requirement has passed its normal expiry date  
● The industrial action is in support of a new enterprise agreement  
● Fair Work Commission has granted permission for IA  
● The bargaining representatives organising the action must be genuinely trying to reach an 
agreement 
 
Dispute resolution mechanisms  
- Under both the Fair Work Act and the Industrial Relations Act 1996 NSW, all awards and 
agreements must contain dispute resolution procedures  
- Consensual forms of dispute resolution include conciliation and mediation and are preferable to 
arbitration because they’re less expensive, and create a more harmonious and productive workplace 
- This allows the parties to see themselves as an integral part of the dispute resolution process rather 
than as observers  
 
Mediation  
- A third party listens to the parties in dispute and helps them reach an agreement  
- Mediation may become a part of unofficial workplace dispute settling procedures with a union 
representative acting as a mediator  
Conciliation 
- Third party listens to the two parties and makes suggestions in an effort to bring those parties to 
an agreement 
Arbitration - Arbitration occurs when a third party listens to the parties in dispute and makes a 
decision on the merits of the case  
 
Courts and tribunals  
- FWC and the NSW Industrial Relations Commission hears disputes, resolving issues through a 
process of negotiating and conciliating  
- Set conditions and wages  
- Fair Work Ombudsman enforces compliance with the Fair Work Act 2009. Also helps employees 
and employers by providing advice → Provides assistance for relevant commonwealth workplace 
laws  
- Monitors compliance + investigates any act or practice that may be contrary to workplace laws  
 
Federal Circuit Court  
- Matters under the Fair Work Act 2009 → Civil matters under the Work Health and Safety Act 
2011  
- Is extremely expensive  
- Allows employees to pursue the recovery of unpaid entitlements   
 
Trade unions  
- Trade unions represent workers’ interests and they work to achieve better pay and working 
conditions  
- They have been critical in lobbying for better parental leave, prioritising superannuation, 
campaigning for increased protection for overseas workers under temporary work visas  
- Unions provide members with information, advice and support so that people can be fairly 
rewarded for their work  
- Unions represent over 1.6 million workers in australia 
- R v Journeymen Tailors of Cambridge (1721) meant unions were criminal activity until then 
 
 
The Roles of Employer Organisations 
- Represents employer for specific issues and allows employers to participate in workplace 
relations matters 
- Represents member during new enterprise agreement negotiations 
- National Workplace Relations Consultative Council 
 

The Role of NGOs 

- R​aises awareness and informs the wider community about issues involving the workplace 
- Campaign and pressure governments  
- AHRC which reviews awards and enterprise agreements and makes submissions to the FWC, hears 
complaints about discrimination and refers matters to the Federal Court 
- Human Rights Council of Australia → monitors government  
- Safe Work Australia → promotes safe and healthy work practices and environments  

The Role of the Media  

- Informs the community and sparks a response/outrage/inspire action 

CLIM: ABC 4 Corners Price of Convenience 2015 

Remuneration 

- Remuneration includes an individual employee’s salary package as well as the Superannuation 

Guarantee Scheme for when the employees retire 
- Employer gives a percentage of the employee’s annual salary to a fund which an employee cannot 
access until they retire  
CLIM: Superannuation Guarantee (Administration) Act 1992 (Cth)