Right to work and rights at work

Public sector guidance sheet

Disclaimer
This material is provided to persons who have a role in Commonwealth legislation, policy and programs as general guidance only and is not to be relied upon as legal advice. Commonwealth agencies subject to the Legal Services Directions 2005 requiring legal advice in relation to matters raised in this Guidance Sheet must seek that advice in accordance with the Directions.

What is the right to work and rights in work?

The right to work includes the right of everyone to the opportunity to gain his or her living by work which he or she freely chooses or accepts. Rights in work include the enjoyment of just and favourable conditions of work and to form and join trade unions.

Where does the right to work and rights in work come from?

Australia is a party to seven core international human rights treaties. The right to work and rights in work is contained in articles 6(1), 7 and 8(1)(a) of the International Covenant on Economic, Social and Cultural Rights (ICESCR).

See also articles 8 and 22 of the International Covenant on Civil and Political Rights (ICCPR) , articles 5(e)(i) and (ii) of the Convention on the Elimination of All Forms of Racial Discrimination (CERD) , articles 11 and 14(2)(e) of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) , article 32 of the Convention on the Rights of the Child and article 27 of the Convention on the Rights of people with disability (CRPD).

These human rights treaties contain provisions regarding work rights to specific groups:

  • CEDAW requires measures to be taken to eliminate discrimination against women in employment.
  • The CRC requires countries to recognise the right of the child to be protected from economic exploitation.
  • The CRPD requires countries to recognise the right of people with disability to work, on an equal basis with others and to ensure that reasonable accommodation is provided to people with disability in the workplace.

When do I need to consider the right to work and rights in work?

You will need to consider the right to work and rights in work if you are working on legislation, a policy or a program that:

  • deals with any aspect of employment or workplace relations, including:
  • vocational and training programs designed to promote employment
  • advisory services for job seekers
  • remuneration
  • safe and healthy working conditions
  • promotion and advancement at work
  • hours of work
  • leave and holidays
  • addresses discrimination in eligibility for employment and in the workplace, and/or
  • regulates membership of trade unions, the activities of trade unions and the right to strike.

The right should also be considered when negotiating agreements with other countries or international organisations, such as free trade agreements, that may contain provisions relevant to the right to work or rights in work.

This list should not be regarded as exhaustive.

What is the scope of the right to work and rights in work?

The UN Committee on Economic Social and Cultural Rights has stated that the right to work:

affirms the obligation of States parties to assure individuals their right to freely chosen or accepted work, including the right not to be deprived of work unfairly. This definition underlines the fact that respect for the individual and his dignity is expressed through the freedom of the individual regarding the choice to work, while emphasizing the importance of work for personal development as well as for social and economic inclusion.

The Committee has stated that the right to work in article 6(1) of ICESCR encompasses the following elements:

  • Countries must have specialised services to assist and support individuals in order to enable them to identify and access available employment.
  • The labour market must be open to everyone. In particular, there can be no discrimination in access to and maintenance of employment on the grounds enumerated in article 2 of ICESCR, namely race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, which has the intention or effect of impairing or nullifying exercise of the right to work. Age should be considered to be a status on which discrimination under article 2 of ICESCR is prohibited. Limiting the work entitlements of non-citizens would not constitute unlawful discrimination under article 2 of ICESCR.
  • There should be physical accessibility to employment for people with disability.
  • The right to work should be protected, by providing the worker with just and favourable conditions of work, in particular to safe working conditions, the right to form trade unions and the right freely to choose and accept work.

The right also encompasses the right not to be unjustly deprived of work, requiring security against unfair dismissal.

However, the right to work in article 6 of ICESCR does not equate to a guarantee of full employment. The Committee recognises the existence of international factors beyond the control of countries, which may hinder the full enjoyment of the right to work in many countries.

The right to just and favourable conditions of work in article 7 of ICESCR encompasses a number of elements, including:

  • remuneration which provides all workers, as a minimum, with fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work
  • safe and healthy working conditions
  • equal opportunity to be promoted in employment to an appropriate higher level, subject to no considerations other than those of seniority and competence
  • rest, leisure and reasonable limitation of working hours and periodic holidays with pay, as well as remuneration for public holidays.

The right to form and join trade unions in article 8 of ICESCR also requires countries to ensure:

  • the right of trade unions to function freely subject to no limitations other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others
  • the right to strike, provided that it is exercised in conformity with the laws of the particular country.

The International Labour Organization (ILO) has adopted a number of conventions dealing with various labour issues, such as minimum ages for employment, equal remuneration, collective bargaining, forced labour, child labour and occupational health and safety. The right to form and join trade unions in article 8 of ICESCR is also protected in ILO Convention No 87, to which Australia is a party.

There is no settled international law on whether there is a right not to be compelled to join a trade union or professional association. In Australia, the Fair Work Act 2009 provides that persons are free not to become members of industrial associations.

Declaration on the Rights of Indigenous Peoples

The Declaration on the Rights of Indigenous Peoples contains provisions relevant to the right of Indigenous peoples to work and rights in work. The Declaration does not create legally binding obligations, but informs the way governments engage with and protect the rights of Indigenous peoples.

What is the obligation under ICESCR?

Obligations of progressive realisation

Under article 2(1) of ICESCR, a country is obliged to take steps 'to the maximum of its available resources, with a view to achieving progressively the full realisation' of the rights recognised in ICESCR. The UN Committee on Economic Social and Cultural Rights has stated that this provision is 'a necessary flexibility device, reflecting the realities of the real world and the difficulties involved for any country in ensuring full realization of economic, social and cultural rights'. However, the Committee has also stated that 'the phrase must be read in the light of the overall objective of the Covenant which is to establish clear obligations for States parties in respect of the full realization of the rights in question', and that 'it thus imposes an obligation to move as expeditiously and effectively as possible towards that goal'.

Obligations of immediate effect

The Committee has stated that, notwithstanding the progressive realisation provision, there are two obligations that are of immediate effect. They are the guarantee in article 2(2) of ICESCR that the rights under the Covenant will be exercised without discrimination of any kind and the obligation under article 2(1) to 'take steps'. This means that steps towards realisation of the rights under the Covenant must be taken within a reasonably short time after the country becomes party to the Covenant and that the steps should be deliberate, concrete and targeted as clearly as possible towards meeting the obligations under the Covenant.

Can the right to work and rights in work be limited?

Article 4 of ICESCR provides that countries may subject economic social and cultural rights only to such limitations 'as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society'. The UN Committee has stated that such limitations must be proportional, and must be the least restrictive alternative where several types of limitations are available, and that even where such limitations are permitted, they should be of limited duration and subject to review. Measures that are retrogressive to the realisation of economic, social and cultural rights must also be properly justified. A retrogressive measure is one that reduces the extent to which an economic, social and cultural right is guaranteed.

Article 8(1)(a) of ICESCR allows the right of persons to form and join trade unions to be restricted as prescribed by law and as necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others. Restrictions must be provided for by legislation, must be necessary to achieve the desired purpose and must be proportionate to the need on which the limitation is predicated. The phrase 'necessary in a democratic society' incorporates the notion of proportionality. Article 8(2) provides that the article shall not prevent the imposition of lawful restrictions on the exercise of the rights in it by members of the armed forces or of the police or of the administration of the country.

Which domestic laws relate to the right to work and rights in work?

All people working in Australia are entitled to basic rights and protections in the workplace. The following laws deal with aspects of the right to work and rights in work.

The Fair Work Act is the principal Commonwealth legislation dealing with the right to work and rights in work. Section 3 sets out the object of the Act, namely to:

provide a balanced framework for cooperative and productive workplace relations that promote national economic prosperity and social inclusion for all Australians.

The section sets out a number of ways in which the Act addresses this object, including by:

providing workplace relations laws that are fair to working Australians, are flexible for businesses, promote productivity and economic growth for Australia's future economic prosperity and take into account Australia's international labour obligations.

The Fair Work Act deals with remuneration (including equal remuneration for men and women), hours of work, leave, holidays, unfair dismissal, and the terms and conditions that may apply to particular types of workers, such as outworkers and pieceworkers.

The Fair Work Act protects freedom of association in the workplace by providing for a person's choice in becoming a member of an industrial association and in being represented by an industrial association. The Act also provides for choice in participating in lawful industrial activities. The Act protects industrial action in certain circumstances.

The Fair Work Act also contains provisions protecting employees against discrimination in the workplace.

The Act prohibits the inclusion in a modern award or an enterprise agreement of terms that discriminate against an employee because of, or for reasons including, the employee's race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin, unless the discriminatory term:

  • is due to the inherent requirements of a particular position
  • is due to the employment of an employee as a member of the staff of an institution conducted in accordance with a particular religion or creed and is taken in good faith to avoid injury to the religious susceptibilities of adherents of that religion or creed, or
  • or relates to minimum wages for junior employees, employees with a disability or employees to whom training arrangements apply.

The Act provides for review of a modern award or an enterprise agreement referred to Fair Work Australia by the Australian Human Rights Commission.

The General Protection provisions in the Act prohibit an employer from taking adverse action, which includes discriminatory action, against an employee or prospective employee based on the person's race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin, unless the action is:

  • not unlawful under any anti-discrimination law in force in the place where the action is taken
  • taken because of the inherent requirements of the particular position concerned, or
  • taken against a staff member of a religion or creed institution in good faith and to avoid injury to the religious susceptibilities of adherents of that religion or creed.

For those employees not covered by the General Protections, the Act also prohibits an employer from terminating an employee's employment for reasons of race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin, unless the action is:

  • not unlawful under any anti-discrimination law in force in the place where the action is taken
  • taken because of the inherent requirements of the particular position, or
  • taken against a staff member of a religion or creed institution in good faith and to avoid injury to the religious susceptibilities of adherents of that religion or creed.

Foreign workers (workers who are not citizens or permanent residents of Australia) are also entitled to basic rights and protections in the workplace. However, sections 245AA to 245AK of the Migration Act 1958 provide for offences in relation to persons who allow non-citizens to work in certain circumstances.

The Australian Human Rights Commission Act 1986 and regulations made under the Act empower the Australian Human Rights Commission to inquire into and to attempt to conciliate complaints of any distinction, exclusion or preference made on a number of bases, namely race, colour, sex, religion, political opinion, national extraction, social origin, trade union activity, age, medical record, criminal record, impairment, marital status, mental or intellectual or psychiatric disability, nationality, physical disability or sexual orientation that have the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation. The Commission may also report to the Attorney-General on action that needs to be taken in order to comply with the provisions of the Discrimination (Employment and Occupation) Convention of the International Labour Organisation (ILO 111).

The Sex Discrimination Act 1984, Age Discrimination Act 2004, Disability Discrimination Act 1992 and Racial Discrimination Act 1975 generally prohibit discrimination against a person in employment on the ground of a person's sex, marital status, family responsibilities, breastfeeding or a woman's pregnancy or potential pregnancy, age, disability, by reason of their race, colour or national or ethnic origin. There are certain exemptions in these Acts to the prohibition of discrimination in employment, such as where a person would be unable to carry out the inherent requirements of the work or a religious body acting in conformity with the doctrines of the religion.

The Occupational Health and Safety Act 1991 is designed to secure the health, safety and welfare at work of employees of the Commonwealth and Commonwealth authorities and to protect persons at or near workplaces from risks to health and safety arising out of the activities of such employees at work.

The Equal Employment Opportunity (Commonwealth Authorities) Act 1987 requires Commonwealth authorities to promote equal opportunity in employment for women, Indigenous Australians, persons whose first language is not English and persons with a physical or mental disability.

The Equal Opportunity for Women in the Workplace Act 1999 is designed to promote the principle that employment for women should be dealt with on the basis of merit and to promote the elimination of discrimination against, and the provision of equal opportunity for, women in relation to employment matters.

The Building and Construction Industry Improvement Act 2005 (the BCII Act) promotes respect for the rule of law in the building industry and ensures that building industry participants are accountable for any unlawful conduct. The BCII Act empowers the Australian Building and Construction Commissioner (ABC Commissioner) to investigate alleged contraventions of the BCII Act and to institute court proceedings. The ABC Commissioner has investigative powers in relation to suspected contraventions by building industry participants similar to the Fair Work Act. The ABC Commissioner can also compel people to provide information, produce documents or answer questions at an examination under certain circumstances.

Job Services Australia is the Government's national employment services system. It provides opportunities for training, skills development, work experience and tailored assistance for job seekers.

What other rights and freedoms relate to the right to work and rights in work?

The right to work and rights in work may also be relevant to:

  • the right to freedom from forced labour and slavery in article 8 of the ICCPR
  • the right to freedom of assembly and association in article 22 of the ICCPR
  • the right to equality before the law and the prohibition of discrimination in the equal protection of the law in article 26 of the ICCPR.

Articles from relevant Conventions

International Covenant on Economic, Social and Cultural Rights

Article 6(1)

The States Parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right.

Article 7

The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and favourable conditions of work.

Article 8(1)(a)

The States Parties to the present Covenant undertake to ensure the right of everyone to form trade unions and join the trade union of his choice, subject only to the rules of the organization concerned, for the promotion and protection of his economic and social interests. No restrictions may be placed on the exercise of this right other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others.

See also: CERD article 5(e)(i) and (ii); CEDAW articles 11, 14(2)(e); CRC article 32; CRPD article 27; ICCPR articles 8 and 22.

Where can I read more about the right to work and rights in work?