The nature of workplace law: HSC Legal Studies

What this dot point is asking

The nature of workplace law is the first part of the Workplace option of the Legal Studies Stage 6 Syllabus (2009). This page covers the changing nature of workplace law over time, and the two skills the syllabus attaches to it: outline the developing need for workplace law and outline the sources of workplace regulations.

The rest of the nature of workplace law is on the next page: contracts, awards, agreements and statutory conditions, which also covers the rights and responsibilities of employers and employees. Regulation of the workplace is on the industrial relations framework and negotiations, dispute resolution and workplace institutions and remuneration. The four contemporary issues that must be studied are discrimination, safety, termination of employment and leave.

The option's principal focus is to investigate "legal rights and responsibilities and the effectiveness of the law in achieving justice in the workplace". Its themes run through every answer: the role of the law in encouraging cooperation and resolving conflict in the workplace, compliance and non-compliance, laws as a reflection of changing values and ethical standards, the role of law reform in recognising rights and enforcing responsibilities, and the effectiveness of legal and non-legal responses in achieving justice in the workplace.

The answer

The changing nature of workplace law over time

The history matters because nearly every exam question on this option asks you to judge whether the law responds to change. Each stage below reflects the values of its time and a shift in the balance of power between employers and employees.

1. Master and servant (nineteenth century). Employment was a relationship of master and servant. Colonial Masters and Servants Acts made it a criminal offence for a worker to leave a job, neglect work or disobey orders, and a worker could be imprisoned; an employer who failed to pay faced only a civil claim. The law reflected a society that valued the property and authority of employers over the freedom of workers.

2. Unions, strikes and compulsory arbitration (1890s to 1990s). Workers organised into trade unions, and the great strikes of the 1890s (maritime and shearers' strikes) ended in defeat for unions. The response was a uniquely Australian system of compulsory conciliation and arbitration. Section 51(xxxv) of the Constitution gave the Commonwealth power over "conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State", and the Conciliation and Arbitration Act 1904 (Cth) created a court to settle disputes by making binding awards.

• The Harvester judgment (1907). In Ex parte H.V. McKay, Justice Higgins held that a "fair and reasonable" wage was one that let an unskilled labourer support a wife and three children "in frugal comfort", and set it at 7 shillings a day. This became the basic wage, the origin of today's national minimum wage. It reflected the values of 1907: it assumed a male breadwinner and paid women less.
• Equal pay (1969 and 1972). The Conciliation and Arbitration Commission granted equal pay for equal work in 1969 and equal pay for work of equal value in 1972, reflecting the changing status of women.

For most of the twentieth century, industry-wide awards set the wages and conditions of most workers, unions were central, and the tribunal, not the market, decided pay.

3. Deregulation and enterprise bargaining (1990s to 2000s). As the economy opened to global competition, governments of both parties moved away from centralised awards.

• The Industrial Relations Reform Act 1993 (Cth) (Keating Labor Government) made enterprise bargaining at the level of the individual workplace the main way of setting pay, with awards as a safety net, and introduced federal unfair dismissal laws.
• The Workplace Relations Act 1996 (Cth) (Howard Coalition Government) introduced Australian Workplace Agreements (AWAs), individual statutory contracts, and reduced awards to 20 "allowable matters".
• WorkChoices (the Workplace Relations Amendment (Work Choices) Act 2005 (Cth), from 27 March 2006) relied mainly on the corporations power (s 51(xx)) to create a national system for most employers. It removed unfair dismissal protection for businesses with 100 or fewer employees, removed the "no disadvantage test" for agreements, and shifted minimum wage setting to a new Australian Fair Pay Commission. The High Court upheld it in New South Wales v Commonwealth (2006). The ACTU's "Your Rights at Work" campaign against it was a major issue at the 2007 federal election, an example of non-legal action driving law reform.

4. The Fair Work Act 2009 (Cth). The Rudd Labor Government's Fair Work Act 2009 (Cth) replaced WorkChoices. It created:

• the National Employment Standards (NES), a set of minimum conditions that apply to all national system employees, and a small number of modern awards (both from 1 January 2010);
• good faith bargaining and a better off overall test (BOOT) for enterprise agreements, with no new individual statutory agreements;
• restored unfair dismissal protection (with a simpler code for small business) and wide general protections against adverse action;
• Fair Work Australia (renamed the Fair Work Commission in 2013) and the Fair Work Ombudsman.

NSW referred its power over most private sector employers to the Commonwealth from 1 January 2010 (Industrial Relations (Commonwealth Powers) Act 2009 (NSW)), creating a largely national system. See the industrial relations framework.

5. Job security, equality and closing loopholes (2022 to 2026). The Albanese Labor Government's reforms responded to evidence of stagnant wages, insecure work, underpayment and gender inequality:

State law also changed. NSW re-established the Industrial Court of NSW from 1 July 2024 and removed the public sector wages cap (Industrial Relations Amendment Act 2023 (NSW)); introduced industrial manslaughter into the Work Health and Safety Act 2011 (NSW) from 16 September 2024; and made SafeWork NSW a standalone regulator from 1 July 2025.

What is still being debated in September 2026. Two proposals show law reform still catching up with values. The Victorian Equal Opportunity Amendment (Work from Home) Bill 2026, introduced on 16 June 2026, would give eligible employees a right to work from home two days a week; on 10 September 2026 it was referred to a parliamentary committee, so it is not yet law. On 7 September 2026 the federal government released draft legislation to ban non-compete clauses for workers earning under $190,100 a year (the Fair Work Act high income threshold), with submissions closing on 2 October 2026; it has not yet been introduced as a Bill.

The developing need for workplace law

At common law, employment is a contract. The law assumed that employer and employee bargain freely and equally, and courts enforced what they agreed. In reality:

• Inequality of bargaining power. Most employees cannot negotiate their terms; they accept the job offered or do without. The power gap is widest for young, low-skilled, casual and migrant workers. In May 2025, 22.7 per cent of employees were paid by award only, over 60 per cent of them women (ABS), and the FWC's June 2026 decision described award-reliant workers as mostly part-time and a majority casual.
• Safety. Industrial work killed and maimed workers; today 188 workers were killed at work in 2024 and there were 146,700 serious workers' compensation claims in 2023-24, with mental health conditions now 12 per cent of serious claims (Safe Work Australia, 2025).
• Insecure work. Casual employment, fixed-term contracts, labour hire and "sham contracting" let employers avoid the costs of permanent employment. Gig platforms treated workers as independent contractors outside the Fair Work Act.
• Exploitation and underpayment. The 2015 media exposure of systemic underpayment of international students at 7-Eleven franchises led to the Fair Work Amendment (Protecting Vulnerable Workers) Act 2017, making franchisors responsible. Underpayment remains widespread: the Fair Work Ombudsman recovered $453 million for more than 181,000 workers in 2025-26.
• Discrimination and harassment. Changing values reject discrimination based on sex, race, disability or age, and sexual harassment. The Respect@Work report (2020) found that sexual harassment at work was widespread and that the law relied too heavily on victims complaining.
• Technology and work-life balance. Smartphones made workers contactable at all hours, leading to the right to disconnect (2024); the shift to working from home during COVID-19 created new disputes, such as Chandler v Westpac Banking Corporation [2025] FWC 3115, where the FWC ordered Westpac to let a long-serving employee work from home.

The need is not only the employee's. Employers need certainty, fair competition (so law-abiding businesses are not undercut by those that underpay), productive cooperation and a way to resolve disputes without strikes.

The sources of workplace regulations

The hierarchy matters in an answer: statute overrides the common law and inconsistent contracts; an award or agreement cannot reduce the NES; an enterprise agreement must leave employees better off overall than the award; and under s 109 of the Constitution, a valid Commonwealth law overrides an inconsistent state law, although the Fair Work Act expressly preserves state laws on safety, workers compensation, discrimination and long service leave.

Themes to carry into every answer

In one sentence

Workplace law has moved from punishing workers under the Masters and Servants Acts, through a century of awards and arbitration, to a national Fair Work system that has been reshaped since 2022 to protect insecure, underpaid and harassed workers, with rules drawn from the Constitution, statutes, awards and agreements, the common law and international law, although reform still tends to follow harm rather than prevent it.

Try this

Q1. Outline the developing need for workplace law. (4 marks)

• What the marker wants. The imbalance of bargaining power, and two or three developments (safety, insecure work, underpayment, discrimination) with an example.

Q2. Outline the sources of workplace regulations. (5 marks)

• What the marker wants. Four or more sources with a named example of each, and a comment on how they interact (statute over common law; the NES as a floor).

Q3. Assess the role of law reform in responding to the changing nature of work. (8 marks)

• What the marker wants. Two or three reforms linked to specific changes (gig work, casualisation, technology), with evidence of their effect and a judgement.