Hire Ground: Australia's Quiet Contest Over the 'Right to Work'
…Unsplash
Australia possesses a motto synonymous with the enduring concept of a ‘fair go’. Concepts underpinning Australia’s employment system, such as minimum wages, penalty rates, and unfair dismissal protections, are exemplary of a workplace relations regime that is so assured of its own fairness that it maintains a dedicated tribunal to adjudicate it. If you were to ask most Australians, who holds the power at work? They will tell you that the umpire does…The Fair Work Commission (FWC). They blow the whistle; the Fair Work Act 2009 (Cth) sets the rules, and, in theory, both the employer and the employee play the same game.
However, unlike the United States, where state-based ‘right to work’ laws exist specifically to take away the bargaining power of Unions, the Australian usage of the phrase is considerably more ambiguous; it functions as a shorthand for a larger contest relating to who truly controls the terms of employment, either that be the employer who pays the wage, or the individual who turns up to earn it. In New South Wales (NSW), that contest is being waged across at least 4 sectors simultaneously: casual employment, the gig economy, flexible working arrangements, and the recently legislated ‘right to disconnect’. Indicatively, on none of these fronts can either side be said to be the winner outright.
Firstly, consider the numbers. In August 2025, the Australian Bureau of Statistics (ABS) reported 2.4 million casual employees nationally, about 19% of the total workforce, concentrated in accommodation and food services, as well as retail and health care. Most are satisfied with this arrangement: almost three-quarters of casual employees told the ABS they preferred casual work, citing flexibility and a higher hourly rate as their main reasons. This is, unsurprisingly, the statistic that is most favoured by employers, and it is not without merit. However, it does not constitute the whole dichotomy. The Australian Council of Trade Unions (ACTU) frames the underlying trend differently, noting that casual employment recorded an average of 24.1% of the workforce within nine years of the Coalition government, indicating a level attributed to financial insecurity rather than to genuine choice, and crediting subsequent reforms with reducing that figure to 22.2% of all employment today.
From Contract to Conduct
For a period, the High Court sided decisively with employers. In WorkPac Pty Ltd v Rossato (2021) and CFMMEU v Personnel Contracting (2022), the Court held that whether an individual was properly characterised as a casual, or indeed as an employee at all, turned upon the terms of the written contract rather than upon the practical reality of how the work was performed. Employers welcomed the resulting certainty; unions regarded it as a licence to draft around statutory entitlements. Federal Parliament ultimately sided with the latter view. The Closing Loopholes reforms to the Fair Work Act 2009 (Cth) overturned both decisions, replacing the contractual test with one grounded in the ‘real substance, practical reality and true nature’ of the relationship, and shifting the onus for casual conversion onto the employee.
The same legislative package introduced a ‘same job, same pay’ regime to prevent labour hire firms from undercutting bargained wages, empowered the FWC to set minimum standards for so-called ‘employee like’ gig workers, and, most controversially of all, conferred upon every employee in Australia a statutory right to disconnect from after-hours calls, texts, and emails. When these disconnect provisions extended to Australia’s2.6 million small businesses in August 2025, Anne Nalder of the Small Business Association of Australia cautioned that “for micro businesses who don’t have large staff numbers, it could pose issues,” particularly where a refusal to answer an urgent call might later be judged unreasonable. The Australian Chamber of Commerce and Industry (ACCI) has, at various points, been considerably blunter. A mid-2024 survey found that nearly half of small business operators had contemplated closing or relocating within the preceding year, with new industrial relations obligations, casual redefinition chief among them, identified as a contributing factor; as ACCI chief executive Andrew McKellar put it at the time, “we’ve got to get to a situation where small business can get through that administrative burden much more effectively.” More recent surveys suggest that particular pressure has eased somewhat, though compliance costs and red tape are a persistent complaint among small operators.
Unions regard the same reforms as an overdue correction rather than as an imposition of red tape. When the right to disconnect first took effect for larger employers, ACTU president Michele O’Neil described it as “a historic day for working people,” declaring that “Australian unions have reclaimed the right to knock off after work.” The Australian Industry Group was considerably less celebratory, describing the laws in a statement as “rushed, poorly thought out and deeply confusing.”
New South Wales’ Gig Economy Reckoning
Nowhere is this paradox rendered more visible than on the roads of Sydney, Newcastle, and Wollongong. Until last month, the roughly 250,000 food delivery and rideshare workers nationally who fall within the FWC’s new ‘employee like worker’ category operated without any guaranteed minimum pay. An interim Commission order, which commenced on 17 August 2026, now sets an hourly earnings floor for engaged time, yet these workers remain without unfair dismissal rights, and without guaranteed recourse to an independent umpire should a platform deactivate their account overnight. A NSW parliamentary select committee found that gig workers ‘lack the power to interact and negotiate with on demand platforms as equals’, and that the absence of a low-cost tribunal to hear their disputes ‘is leading to injustice in New South Wales’.
The Minns Government has responded by extending Chapter 6 of the Industrial Relations Act 1996 (NSW), originally designed for owner-driver truck drivers, couriers, and taxi drivers, to cover rideshare and food delivery platforms, thereby granting the NSW Industrial Relations Commission (IRC) the power to determine fair and reasonable pay and conditions, and to mediate disputes concerning deactivation. “For rideshare gig workers, they haven’t had a level playing field,” NSW Industrial Relations Minister Sophie Cotsis told reporters upon introducing the Bill, arguing that the Commission was simply “filling the gaps” left vacant by the platforms. Uber was unimpressed, describing the state scheme as “redundant” given that the Commonwealth’s own ‘employee like worker’ minimum standards regime had already commenced within the same sector. Two regulators, two commissions, and one contested category of worker constitute a distinctly NSW style of overlap, and offer a preview of the jurisdictional tangle that other states are now contemplating.
Flexibility represents the other front line, and its boundaries extend well beyond those of NSW. Victoria is legislating a right for employees to work from home at least two days each week where reasonably practicable, due to commence in September 2026, a move business groups contend may not withstand constitutional challenge given the Commonwealth’s dominance over industrial relations. Federally, existing amendments already permit parents, carers, people with disability, and workers over the age of 55 to pursue a flexible work refusal all the way to binding arbitration before the FWC, rather than simply accepting an employer’s refusal. NSW possesses no equivalent state-based right to work from home, leaving its public servants and private sector workers alike reliant upon the federal scheme, while observing Victoria’s experiment with evident caution.
Whose Right, Precisely?
So who, in truth, possesses the ‘right to work’ in this country: the right to hire, dismiss, and roster according to market demand, or the right to stable, predictable, and disconnectable employment? The honest answer is that both sides have gained something, and both have relinquished something in turn. Employers retain the capacity to engage genuinely casual staff, and most casual employees, on the ABS’s own figures, remain content with that arrangement. Yet the presumption has shifted decisively: contracts no longer settle the question unilaterally, gig platforms may now be summoned before two separate commissions, and a text message sent at nine in the evening carries a legal risk it never previously carried.
None of this appears likely to settle into equilibrium in the near future. A further contest looms should the Federal Coalition, which took to the last election a policy to repeal both the new casual definition and the right to disconnect, ever again form government. Until such a time, employers and employees across NSW remain engaged in negotiating a system that continues to redraw the line between flexibility and security: one FWC decision, one NSW IRC determination, and one after-hours text message at a time.
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References
1. Compare the United States model, where state 'right-to-work' laws restrict compulsory union membership, with the Australian usage discussed here, which is a colloquial shorthand rather than a defined legal term.
2. Australian Bureau of Statistics, Characteristics of Employment, Australia (Web Page, August 2025) https://www.abs.gov.au/statistics/labour/earnings-and-working-conditions/characteristics-employment-australia/latest-release.
3. Ibid; the accommodation and food services industry recorded the highest rate of casualisation at 58 per cent, followed by retail trade and health care and social assistance.
4. Australian Bureau of Statistics, 'Casual Work Continues to Decline' (Media Release, 12 December 2025): 73 per cent of casual employees preferred casual employment, citing flexibility (53 per cent) and a higher hourly rate (23 per cent) as their main reasons https://www.abs.gov.au/media-centre/media-releases/casual-work-continues-decline.
5. Australian Council of Trade Unions (ACTU), Escaping the Casual Employment Trap (Research Report, February 2025) 3 https://www.actu.org.au/wp-content/uploads/2025/02/ACTU-Research-Report-EscapingTheCasualEmploymentTrap-Feb2025.pdf.
6. WorkPac Pty Ltd v Rossato (2021) 271 CLR 456; CFMMEU v Personnel Contracting Pty Ltd (2022) 275 CLR 165.
7. Fair Work Legislation Amendment (Closing Loopholes) Act 2023 (Cth) and Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (Cth), inserting ss 15A–15AA into the Fair Work Act 2009 (Cth); see Fair Work Commission, 'The Closing Loopholes Acts – What's Changing' (Web Page) https://www.fwc.gov.au/about-us/new-laws/closing-loopholes-acts-whats-changing.
8. Fair Work Act 2009 (Cth) pt 3A-1 (regulated workers), s 333M (right to disconnect); Fair Work Commission (n 7).
9. Anne Nalder, quoted in 'Right to Disconnect Rolls Out to Small Businesses', Information Age (online, 25 August 2025), which also reports there were nearly 2.6 million Australian small businesses as at June 2024 https://ia.acs.org.au/article/2025/right-to-disconnect-rolls-out-to-small-businesses.html.
10. Andrew McKellar, quoted in 'ACCI Survey Finds Nearly Half of Small Businesses Considered Closing in Past 12 Months', Smart Company (online, 22 July 2024) https://www.smartcompany.com.au/finance/acci-survey-business-closing-cost-red-tape/;Australian Chamber of Commerce and Industry (ACCI), Small Business Conditions Survey Report (Report, 12 November 2025) recorded 28 per cent of respondents having considered closing in the preceding 12 months, a lower figure than in 2024, though 42 per cent still reported that regulation was harming their operations.
11. Michele O'Neil, quoted in 'Australia Gives Millions of Workers "Right to Disconnect"', Gulf News (online, 26 August 2024) https://gulfnews.com/world/oceania/australia-gives-millions-of-workers-right-to-disconnect-1.103931257.
12. Australian Industry Group, quoted in ibid.
13. Ahmed Yussuf and Bronwyn Herbert, 'Here's What Is Changing About How Food Delivery Workers Are Paid', ABC News (online, 17 August 2026) https://www.abc.net.au/news/2026-08-17/what-is-changing-about-how-food-delivery-workers-are-paid/107036602.
14. Ibid; the interim Fair Work Commission order sets a minimum rate of $31.30 per hour of engaged time for e-bike riders, rising for motorcycles and cars, calculated over a 21-day earnings period.
15. NSW Parliament Select Committee on the Impact of Technological and Other Change on the Future of Work and Workers in New South Wales, Impact of Technological and Other Change on the Future of Work and Workers in New South Wales First Report - the Gig Economy (Report, April 2022) https://files.parliament.nsw.gov.au/fileapi/ParlFiles/GetArtifact/Report%20No%201%20-%20Select%20Committee%20-%20The%20gig%20economy%20-%20First%20report.pdf?serverRelativeUrl=%2Flcdocs%2Finquiries%2F2591%2FReport%20No%201%20-%20Select%20Committee%20-%20The%20gig%20economy%20-%20First%20report.pdf. , April 2022.
16. Industrial Relations Amendment (Transport Sector Gig Workers and Others) Act 2025 (NSW), amending Industrial Relations Act 1996 (NSW) ch 6; NSW Government, ‘Overdue Protections for Gig Workers as NSW Government Updates Industrial Safeguards’ (Media Release, 28 July 2024) https://www.nsw.gov.au/media-releases/overdue-protections-for-gig-workers-as-nsw-government-updates-industrial-safeguards.
17. Sophie Cotsis, quoted in 'Gap-filling Gig-worker Protections "Redundant": Uber', AAP News (online, 20 March 2025) https://aapnews.aap.com.au/news/gig-drivers-gaining-avenue-to-fairer-pay-and-conditions.
18. Uber spokesperson, quoted in ibid.
19. Greta Dixon, ‘How the law and employers are responding to flexible work’, HFW (online, 16 March 2026) https://www.hfw.com/insights/how-the-law-and-employers-are-responding-to-flexible-work/.
20. Fair Work Act 2009 (Cth) s 65A; see 'Labor Moves to Improve Access to Flexible Work for Parents, Carers and Older Australians', The Guardian (online, 27 October 2022) https://www.pressreader.com/australia/the-guardian-australia/20221028/282054805968742.
21. Australian Bureau of Statistics (n 4).
22. Mia Lockett, ‘Election 2025: How Major Parties Plan to Cut Red Tape for Small Businesses’, Inside Small Business (online, 28 April 2025) https://insidesmallbusiness.com.au/management/government-policies/election-2025-small-business-red-tape.