Workplace

If you study Workplace, you answer one 25-mark extended response (about 1,000 words). Questions ask you to evaluate how effectively the law regulates the workplace and achieves justice for employers and employees.

• The nature of the workplace: the historical development of workplace law, the employment contract, the rights and responsibilities of employers and employees, and the main sources of regulation (statutes, awards, agreements, common law).
• Responses: resolving disputes (Fair Work Commission, courts, tribunals), the role of unions and employer groups, workplace health and safety, discrimination and harassment, and dismissal.
• Contemporary issues: issues such as discrimination, workplace safety and the changing nature of work (casual and insecure work, the gig economy, technology).

Workplace law changed substantially between 2022 and 2025. The law below is as at 2026.

• Master and servant laws (19th century): employees who broke their contracts could be imprisoned.
• Trade unions grew in the late 1800s; strikes in the 1890s led to the idea of compulsory conciliation and arbitration.
• Conciliation and Arbitration Act 1904 (Cth) and the Harvester judgment (1907), which set a "fair and reasonable" basic wage based on the needs of a worker supporting a family.
• Enterprise bargaining (from the 1990s) moved wage setting to individual workplaces.
• Workplace Relations Act 1996 (Cth) and WorkChoices (2005), which reduced award protections and unfair dismissal rights. WorkChoices was a major issue in the 2007 federal election and was then replaced.
• Fair Work Act 2009 (Cth): the current framework, amended significantly by Secure Jobs, Better Pay (2022) and Closing Loopholes (2023–24).

Common law duties. Employers must pay wages, provide a safe workplace and not require unlawful acts. Employees must obey lawful and reasonable directions, use care and skill, act in good faith and not misuse confidential information.

Employee or contractor? The distinction decides who gets NES, award and unfair dismissal protections. Since 2024, the Fair Work Act requires courts to look at the real substance of the relationship, not only the written contract (reversing the approach in two 2022 High Court cases, CFMMEU v Personnel Contracting and ZG Operations v Jamsek).

The National Employment Standards

The NES include maximum weekly hours (38 plus reasonable additional hours), the right to request flexible working arrangements, the right of eligible casual employees to change to permanent employment (the "employee choice" pathway, from 26 August 2024), parental leave, annual leave (4 weeks), personal/carer's and compassionate leave (10 days of personal/carer's leave per year), 10 days of paid family and domestic violence leave, community service leave, long service leave, public holidays, notice of termination and redundancy pay, information statements, and (since 1 January 2024) superannuation contributions.

Minimum wage: from 1 July 2026, the national minimum wage is $26.44 an hour ($1,004.90 a week). The superannuation guarantee rate has been 12% since 1 July 2025.

• Secure Jobs, Better Pay Act 2022: multi-employer bargaining, pay secrecy clauses banned, limits on fixed-term contracts, gender equality as an object of the Act, stronger flexible work rights (from June 2023).
• Closing Loopholes Acts (2023 and 2024):
• Same job, same pay orders for labour hire workers.
• Wage theft: intentional underpayment became a criminal offence from 1 January 2025.
• New definition of casual employment and a new pathway to permanent work (from 26 August 2024).
• Employee-like workers: the Fair Work Commission can set minimum standards for digital platform workers (such as food delivery riders).
• Right to disconnect: employees can refuse unreasonable contact outside working hours (from 26 August 2024; for small businesses from 26 August 2025).

• Fair Work Commission (FWC): sets minimum wages and awards, approves agreements, resolves disputes by conciliation and arbitration, hears unfair dismissal claims and regulates industrial action.
• Fair Work Ombudsman (FWO): investigates underpayments, educates, issues compliance notices and takes court action.
• Courts: the Federal Court and the Federal Circuit and Family Court enforce the Fair Work Act (civil penalties, underpayment claims, general protections).
• Unions and employer associations: bargain collectively, represent members, campaign for reform.

Unfair dismissal and general protections

An employee can claim unfair dismissal if the dismissal was harsh, unjust or unreasonable. Requirements: a minimum employment period (6 months, or 12 months for a small business with fewer than 15 employees), and an application within 21 days of dismissal. Remedies are reinstatement or compensation. General protections prohibit adverse action because of a workplace right, union membership or a protected attribute.

• Federal law: Sex Discrimination Act 1984, Racial Discrimination Act 1975, Disability Discrimination Act 1992, Age Discrimination Act 2004, all Commonwealth.
• NSW law: Anti-Discrimination Act 1977 (NSW); complaints to Anti-Discrimination NSW, then NCAT.
• Respect@Work: the 2020 report by the Sex Discrimination Commissioner led to a positive duty on employers to take reasonable and proportionate measures to eliminate sexual harassment (from December 2022, enforced by the Australian Human Rights Commission from December 2023).
• Limits: under-reporting, fear of retaliation, and the cost and stress of litigation.

• Work Health and Safety Act 2011 (NSW): a person conducting a business or undertaking (PCBU) has a primary duty to ensure, so far as reasonably practicable, the health and safety of workers. Officers must exercise due diligence; workers must take reasonable care.
• SafeWork NSW inspects, issues improvement and prohibition notices and prosecutes.
• Psychosocial hazards: since 2022, NSW law expressly requires PCBUs to manage psychosocial risks such as bullying and excessive workloads.
• Industrial manslaughter: a criminal offence in NSW since September 2024, with up to 25 years' imprisonment for individuals.
• Workers compensation: the Workers Compensation Act 1987 (NSW) provides no-fault payments for workplace injuries, managed by icare and regulated by SIRA.

Worked example: is this worker protected from unfair dismissal?

Mei has worked for a café with 9 employees for 10 months. She is dismissed without a reason and lodges a claim 15 days later. Step 1: the business is a small business (fewer than 15 employees), so the minimum employment period is 12 months. Step 2: Mei has worked 10 months, so she cannot bring an unfair dismissal claim. Step 3: she may still have a general protections claim if she was dismissed for a prohibited reason (for example making a complaint about her pay), which has no minimum employment period.

Criteria to use:

• Balance between employer flexibility and employee protection.
• Enforcement: do workers actually receive their entitlements?
• Accessibility: time limits, cost, knowledge of rights, especially for young and migrant workers.
• Responsiveness to changes in work (gig economy, remote work, technology).
• Stability: workplace law has shifted with changes of government.

Typical judgement: the Fair Work system provides a strong safety net and accessible dispute resolution, and recent reforms have closed important loopholes, but enforcement relies heavily on workers asserting their rights, and vulnerable workers are still often underpaid.

• Treating WorkChoices as current law.
• Stating out-of-date figures, such as an old minimum wage or superannuation rate. Always give the date.
• Confusing the Fair Work Commission (tribunal) with the Fair Work Ombudsman (regulator).
• Forgetting that most NSW private sector employees are covered by the federal system.
• Describing the history at length without linking it to justice in the workplace today.

• Structure: judgement in the introduction; themed paragraphs (for example minimum standards, dispute resolution, discrimination, safety, changing work); conclusion.
• Name and date reforms: Secure Jobs, Better Pay (2022), Closing Loopholes (2023–24), wage theft offence (2025), industrial manslaughter (2024).
• Use the agents of change: unions, employer groups, inquiries, elections and court decisions.
• About 1,000 words in about 45 minutes.

• Human Rights: the right to work and fair conditions (ICESCR Articles 6 and 7), ILO conventions, discrimination law.
• Crime: wage theft and industrial manslaughter as criminal offences.
• Family: paid parental leave, flexible work and domestic violence leave.