Flexible employment and other emerging types of labour relations - Australia

International Association of Judges Conference, Santiago, Chile – 2017
Fourth study commission

Preliminary remarks

In the Commonwealth of Australia, laws relating to workplace relations (sometimes called industrial law or employment law) are largely, although not exclusively, codified in federal (national) legislation entitled the Fair Work Act, 2009. As a matter of federal constitutional law, those Australian states and territories that have not surrendered their legislative power to the Commonwealth in relation to industrial law continue to have power to make industrial laws that apply on a state by state, territory by territory basis. Anti-discrimination laws as well as occupational health and safety laws also apply.


[1] Does your country have laws or regulations on work schedules?


[2] If so –

  1. What are the general rules applicable to the duration of working hours?

    In Australia, under the Fair Work Act employers must not require employees to work more than 38 hours a week unless the additional hours are considered to be “reasonable”, having regard to the matters set out in s 62(3) of the Fair Work Act, namely, risks to the employee’s health and safety, the employee’s personal circumstances (including family responsibilities), whether the additional hours attract penalty rates, the amount of notice given, the usual pattern of work in the industry and the nature of the employee’s role and responsibilities. Employees working within certain vocational categories, such as carers, have the right to request flexible working hours.

  2. Has the legislature considered any general exemptions from these rules?

    Already canvassed.

  3. Apart from these general derogations, has the legislature provided any other special exemptions applicable to the duration of working hours?

    Special exemptions include –

    1. carers of children who are school age or younger;
    2. those persons who meet the definition of carers under the Carer Recognition Act;
    3. people with disabilities;
    4. people who have attained the age of 55 years or more;
    5. victims of domestic violence; and
    6. carers of victims of domestic violence.

    Under the Fair Work Act, if an employee wishes to work pursuant to a roster that includes flexible working hours, the employee must make a written request to work under flexible working hours. Only if an employer has reasonable grounds for refusing an employee’s request to work flexible hours may the employer do so. Matters that go to an assessment of the reasonableness of an employer’s refusal to grant flexible working hours for an employee include, but are not limited to, such matters as –

    1. the cost of providing such flexibility;
    2. the employer’s ability to reorganise rosters of other employees; and
    3. any negative impact on customer service.

[3] In any event (whether in the absence or presence of a regulation on the duration of working hours) –

  1. What forms of flexible working hours have been considered, whether by your legislature, the social partners (in collective agreements), or even by the company (intern regulations, employment contract)?

    Under the Fair Work Act, two contractual regimes are permissible between employer and employee. In the first is the regime where the employer and employee record in exhaustive detail the precise terms about every aspect of their working relationship at both a macro and micro level. That is usually confined to sophisticated employment contracts between senior employees who are very well remunerated. More common is the second category. There, the provisions of an industrial award govern the contractual relations between the employer and the employee without the need for the contract of employment to specifically enumerate all of the provisions of the industrial award that apply as between that employer and that employee. Industrial awards apply for a specific period of time to specific categories of employees who work in identified industries. After being negotiated usually by industry employer groups and unions, industrial awards are sanctioned by the Fair Work Commission, the statutory body appointed under the Fair Work Act to, among other things, approve industrial awards. Most industrial awards address flexible working hours. A list of the provisions of a variety of industrial awards in which flexible working hours are recorded may be found that www.fwc.gov.au.

    Under Australian law, the provisions of an applicable industrial award bind the employer and the employee notwithstanding that the employer and employee may not have specifically agreed as much when negotiating their respective contracts of employment. It is unlawful for an employer to attempt to contract out of the terms of an applicable industrial award. The rationale underpinning that is that the provisions of an industrial award provide the minimum conditions under which the employee can be expected to work. Employers are free to enter into a contract of employment with one or more employees that provides for more favourable terms than the industrial award provisions. However, if an employer chooses to do that, anti-discrimination laws forbid the employer from preferring ahead of other employees one or more employees to receive more favourable terms than those applicable under the relevant industrial award.

    Rarely do internal rules of employers make stipulations in relation to flexible working hours. However, some employers with a very large number of employees create internal rules or policies relating to flexible working hours. Those internal rules policies are usually taken to be incorporated into the contracts of employment between the employer and the employee.

  2. Moreover, does your country have one or more of the following forms of flexibility (or other forms of flexibility to be specified) –
    1. successive fixed term contracts;
    2. interim;
    3. layoff;
    4. teleworking;
    5. part-time work;
    6. on-call work contract;
    7. occasional work?


    1. In Australia, it is lawful for an employer and employee to enter into a contract of employment for a specific duration and for that contract of employment to be extended on the same terms and conditions for a further fixed term. However, it becomes a question of fact in the circumstances of each individual case whether the particular fixed term contract has been successively renewed over such a period that the contract ceases to be a fixed term contract and converts instead to an ongoing contract of employment to which rules relating to the giving of reasonable notice in respect of termination apply.
    2. Yes.
    3. Yes.
    4. Yes.
    5. Yes.
    6. Yes.
    7. Yes.

[4] More specifically, in your country, is there a possibility to work outside of the workplace, for example at home?


Under Australian law it is permissible for employees to work at home. However, under occupational health and safety legislation, where an employee’s workplace is that person’s home, the obligation on the employer to provide a safe system of work and a safe work environment apply with full force and effect. Subject to it being reasonable and practicable to do so, that may require the employer to undertake alterations to the employee’s home so as to render safe any workplace that was not otherwise safe.

Further, under anti-discrimination legislation, the mere fact that an employee works from home does not relieve the employer from the obligation to prevent discriminatory conduct being engaged in by the employee and the employee is not thereby excused from complying with his or her obligations under anti-discrimination legislation.

[5] If so –

  1. What kind of control can the employer have over the employee working outside of the workplace?

    Any entry onto the employee’s home must be with the employee’s consent. The employer is usually entitled to ensure that the employee works to a prescribed number of hours by submitting timesheets. If the employee’s work requires the employee to make telephone calls, for example, the employer is usually entitled to inspect telephone records to verify that the calls were in fact made.

  2. Do the employers have to reimburse the employee for certain costs associated with this type of work?


    Reimbursement of costs associated with the performance of work tasks is specifically covered by ss 139 to 155 of the Fair Work Act. Most awards cover the matters that may, must and must not be included in industrial awards. Those include allowances for tools, special skills and responsibilities, onerous working conditions such as dirty or dangerous work or working in remote locations.

October 2017