Workers’ Human Rights in Australia

By Colin Fenwick

This paper is about the legal protection of the human rights of workers in Australia. In particular the focus in on aspects of the protection of freedom of association, and how Australian law acts to eliminate discrimination in employment and occupation.

This focus of course takes in only two of the four areas covered by the core labour standards of the International Labour Organisation (ILO), leaving out the issues of child labour and forced labour.

The defining feature of Australian human rights law is that it is almost entirely confined to legislative and administrative action by Australian governments. There are few if any human rights protections in either the federal or the State constitutions. Moreover Australia neither belongs nor could belong to any regional group of states that may have instruments and institutions that protect human rights. The protection of workers' human rights in Australia, therefore, depends almost entirely on the extent to which Australian governments have legislated for their protection and exercise, and on the extent to which workers are able to assert and protect their rights through the exercise of collective strength. Of course, the latter is significantly shaped by the former.

In Part II, I give a brief overview of economic and social conditions in Australia today, and identify the growing need to take a human rights approach to protecting workers' rights. Part III outlines the legal structure for the protection of human rights in Australia, emphasising the lack of entrenched protection of human rights at all levels of government. In Part IV I examine aspects of how Australian law protects freedom of association for trade union purposes, and identify some of the ways that it fails to comply with international standards. Part V concerns legal measures to eliminate discrimination in employment and occupation, and again suggests that Australia has much work to do. In the conclusion I draw the themes together and suggest that the prognosis for workers' human rights in Australia is not good.

Centre for Employment and Labour Relations Law The University of Melbourne

August 2006 Working Paper No. 39