3. How Australian Labour Law is Indifferent to Climate Action

There are four ways in which Australian labour law is indifferent to climate action:

1. It typically does not have environmental objectives.
2. It severely restricts the pursuit of environmental objectives, especially in relation to collective bargaining and industrial action.
3. It does not systematically provide for climate action.
4. It is premised upon continuous economic growth.

3.1 Australian Labour Law Typically Does Not Have Environmental Objectives

We clearly see the ‘othering’ of nature by Australian labour law in its objectives. With the exception of work, health and safety laws, Australian labour law does not have environmental objectives (including climate-related objectives). The 10 elements provided in the object of the Fair Work Act 2009 (Cth) address important social and economic objectives; however, none of the elements include or constitute environmental purposes.^[1] This absence carries through to the modern awards objective,^[2] the minimum wages objective^[3] and the objects of the enterprise bargaining provisions.^[4]

The absence of environmental purposes has not arisen because Australian trade unions have failed to recognise the significance of environmental considerations. Environmental concerns have been apparent on numerous occasions during the 20th and 21st centuries. In the early 1970s, for example, the Builders Labourers Federation, in alliance with progressive professionals and resident activists, placed bans on building destructive urban developments, based on the ‘social responsibility of labour’ to create buildings that were socially beneficial to the community at large.^[5] In the late 1970s, the Australian Council of Trade Unions (‘ACTU’) robustly debated the question of whether Australia should continue to engage in uranium mining and exports in light of the existential threat posed by nuclear weapons, having resolved that the matter was of such significance that the entire Australian community should decide via referendum that there should be a moratorium on all new mining.^[6] More recently, some Australian unions have articulated demands for democratic control and ownership of energy systems, as a basis for addressing the climate crisis through the global network Trade Unions for Energy Democracy.^[7] Others have been active supporters of Indigenous traditional owners resisting the exploitation of their land for fracking.^[8]

Nor does the absence of environmental objectives in Australian labour law mean an absence of environmental workplace policies. Employers still pursue environmental objectives but mainly outside the strictures of labour law. Businesses are subject to regulation from environmental laws, which regulate a range of matters, including air quality, site contamination, used packaging materials,^[9] the use of pesticides,^[10] plastics^[11] and air, noise, water and waste pollution.^[12] It is also commonplace for employers to have environmental policies, some of which come under the banner of corporate social responsibility (‘CSR’) initiatives.

The vacating of the environmental field by Australian labour law does not mean an absence of regulation (just as the ‘deregulation’ of labour law does not result in the same). It has tended, rather, towards managerialism in relation to environmental workplace matters, in which employees may be consulted about environmental matters that fall within the common interest of employers and employees (eg waste management policies, energy efficiency, transport schemes) but lack legal entitlements to engage in conflict and take collective action over sustainability issues in a more fundamental sense. ^[13] We see here how the contradictory logics of Australian labour law play out with the othering of nature reinforcing employer power (managerial prerogative) (see Table 1).

3.2 Australian Labour Law Severely Restricts the Pursuit of Environmental Objectives, Especially in Relation to Collective Bargaining and Industrial Action

The othering of nature in the Fair Work Act has meant a highly restrictive framework for the pursuit of environmental objectives (including climate action). Foremost, environmental objectives have to be couched in terms of the economic and social framework of Australian labour law. For instance, the 2019–20 bushfires were considered by the Fair Work Commission in its 2019–20 Annual Wage Review. As it was obliged to do, the Commission took the impact of the bushfires into account in relation to gross domestic product, household consumption and inflation — but not as environmental catastrophes in their own right.^[14] As emphasised earlier, the othering of nature does not displace environmental considerations but, rather, foists a particular characterisation upon these considerations.

The obstacles to pursuing environmental objectives are evident with collective bargaining and industrial action. These obstacles illustrate how the contradictory logics of Australian labour law are strongly tilted towards the right-hand side of the dyads in Table 1 — they prevent in many cases the pursuit of environmental objectives through the countervailing power of collective bargaining. As with the absence of environmental objectives in the Fair Work Act, these obstacles reinforce employer power in relation to environmental matters.

The restrictions of the Fair Work Act in relation to collective bargaining and industrial action have been repeatedly found by the ILO’s Committee on Freedom of Association and its Committee of Experts to breach the ILO conventions on freedom of association and collective bargaining (ILO conventions 87 and 98).^[15] The breaches relate to (1) the subject matter of bargaining; (2) the level of bargaining; and (3) the ability to take industrial action.

The first two types of restrictions undermine the autonomy of collective bargaining — specifically, ‘the principle of free and voluntary collective bargaining embodied in Article 4 of Convention No. 98’.^[16] The third violates the right to strike, which ‘not only concern[s] better working conditions or collective claims of an occupational nature, but also the seeking of solutions to economic and social policy questions and problems facing the undertaking which are of direct concern to the workers’.^[17]

All three types of restrictions stand in the way of effective green bargaining (bargaining for environmental objectives) and reinforce the managerialism over workplace environmental matters stemming from the lack of environmental objectives in Australian labour law.

3.2.1 The Subject Matter of Bargaining

Regarding the subject matter of bargaining, a narrow ambit for bargaining can be traced back to 1904, when the High Court interpreted the term ‘industrial matters’ in the Industrial Relations Act 1904 (NSW) to mean only matters directly affecting work done or the mutual rights and privileges of employees and employers. In a fillip for managerial prerogative, matters indirectly affecting such work, such as the opening hours of a business, financing arrangements, supply of raw material and (by implication) environmental matters, were excluded from industrial matters.^[18]

Against this background of restrictive jurisprudence, the Fair Work Act limits the content of enterprise agreements to ‘permitted matters’; terms that are not about permitted matters have ‘no effect’.^[19] The concept of permitted matters also shapes the lawfulness of industrial action. The two main limbs of permitted matters are:

• ‘matters pertaining to the relationship’ between an employer and employees who will be covered by the proposed agreement^[20] (‘the employment relationship limb’); and
• ‘matters pertaining to the relationship’ between the employer/s and the employee organisation/s who will be covered by the proposed agreement^[21] (‘the trade union relationship limb’).

The restrictive High Court jurisprudence on industrial matters has carried through to permitted matters, requiring a direct connection between the matter and the relevant relationship for a matter to ‘pertain to the relationship’.

Green bargaining^[22] can occur within the confines of the employment relationship limb of permitted matters, in relation to established areas of bargaining such as job security, working hours and leave entitlements.^[23] All these areas can be understood as protections that have new significance in the context of the climate crisis: job security is essential in the context of climate restructuring of jobs and industries, shorter working hours are a way to reduce climate emissions and leave entitlements such as natural disaster leave are a climate adaptation measure.^[24] Also coming within this limb are working-from-home provisions, which may reduce commuting and associated emissions; and provision for workforce planning (including training and re-skilling, which may enable employees to transition to less carbon-intensive roles).

More extensive green bargaining through the employment relationship limb is, however, severely constrained by the Fair Work Act. Unless there is a direct connection with the employment relationship, the following will not come within the employment relationship limb: energy-efficiency and waste management measures, planning for net zero, emissions targets and governance, and corporate accountability for employers’ environmental impacts (including in relation to investment decisions).

The trade union relationship limb performs the vital role of making clear that provisions relating to trade union rights and entitlements come within permitted matters, including provisions that enable trade union involvement in matters coming within the employment relationship limb. This is highly significant in securing the collective depth essential for effective green bargaining. The trade union limb does not, however, do much to extend the breadth of green bargaining under permitted matters. While there are decisions to suggest that the trade union limb extends to matters not otherwise considered permitted, they seem to limit the scope to consultative mechanisms.^[25]

Empirical research into Australian enterprise agreements appears to confirm the centrality of employer prerogative to environmental agreement-making in practice between 2011 and 2016. A study found that found that environmental clauses were rare (around 7% of all enterprise agreements in the period) and likely to be driven by management as much as by unions. Many of the clauses contained very general commitments to environmental improvement associated with existing environmental policies, and 40% placed the onus of environmental protection exclusively on employees, with 8% also linking environmental issues to disciplinary procedures, including summary dismissal.^[26] Significantly, the ACTU draft model clause for enterprise agreements is also framed in terms of consultation, cooperation and the centrality of employer prerogative. It frames climate change as a matter of risk ‘to job security and the economy’ and establishes processes for consultation via a workplace environment/sustainability committee and information sharing about the risks of climate change to enterprise operations.^[27]

3.2.2 The Level of Bargaining

Climate change is a spatially labile phenomenon, and responsibility for emissions can be conceptualised at many scales. Given the interdependence of enterprises in supply chains in the most polluting industries such as energy, manufacturing, agriculture and transport, a holistic approach is required by employees that involves working collectively within and beyond their sector.^[28] The activities of the International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tourism and Allied Workers’ Associations (known as the ‘IUF’), for example, exemplify such an approach that integrates issues of human exploitation with extractive practices across the entire food system. Their campaign addresses every stage of food production, from land use change to farming, animal feed, processing, transport, retail and packaging, drawing together agricultural workers, rural farms, food processing and hospitality workers to advocate for a radically transformed food system.^[29]

Similar approaches are challenging within the Australian system. The restrictions on the level of bargaining stem from the structural bias of the Fair Work Act towards bargaining at the enterprise level. This bias is explicit, with the main object of the Act’s bargaining provisions ‘to provide a simple, flexible and fair framework that enables collective bargaining in good faith, particularly at the enterprise level, for enterprise agreements that deliver productivity benefits’.^[30] Good faith bargaining obligations are unenforceable,^[31] and the ability to take protected industrial action is not available with multi-employer bargaining,^[32] unless they come within the limited exceptions of the supported bargaining and single-interest employer bargaining streams enacted by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth). While the Act does not prohibit multi-employer bargaining, it provides a difficult environment for such bargaining, especially for trade unions and workers, given the severe restrictions on lawful industrial action in pursuit of such bargaining.

The structural bias towards enterprise bargaining channels whatever green bargaining that can occur under the Fair Work Act to what is perhaps the least effective level of bargaining, where the tensions between job security and environmental objectives (‘jobs v environment’) are most difficult to reconcile.^[33] Conversely, climate emissions are deeply shaped by industry practices, making industry-level bargaining essential for green bargaining, if not the most important. Yet the structural bias of the Fair Work Act generally precludes such bargaining in a meaningful way. Together, these circumstances create a further disincentive to green bargaining at the enterprise level, as employers striking agreements with strong environmental measures risk a competitive disadvantage with ‘green’ premiums.

3.2.3 The Ability to Take Industrial Action

Restrictions on the ability to take industrial action result from the implacable hostility of the common law to industrial action and the limited immunity provided by the Fair Work Act to common law actions against industrial action. At common law, industrial action is invariably a fundamental breach of the contract of employment, enabling employers to lawfully dismiss striking workers; persons organising industrial action can also be committing various torts.

In the context of such common law liability, the Fair Work Act provides for immunity against common law actions through a complicated regime for ‘protected industrial action’.^[34] Amongst others, this regime ties the immunity for protected industrial action to permitted matters — a requirement for protected industrial action by employees is that it is ‘organised or engaged in for the purpose of supporting or advancing claims in relation to the agreement that are only about, or are reasonably believed to only be about, permitted matters’.^[35] The immunity is also generally unavailable with industrial action taken in relation to multi-employer bargaining.^[36] The result is that industrial action that advances claims regarding emissions targets will be exposed to punitive common law actions; the same generally applies to green bargaining with multiple employers. Under the Fair Work Act, the Fair Work Commission is also obliged to issue ‘cease and desist’ orders for industrial action that is not protected.^[37]

3.3 Australian Labour Law Does Not Systematically Provide for Climate Action

The othering of nature in Australian labour law thus flows from both the lack of environmental objectives and restrictions on the pursuit of environmental objectives in the Fair Work Act. It is also reinforced by limitations to existing work health and safety law and the extremely narrow scope of climate planning mechanisms — both of which point to the absence of systematic mechanisms for climate action under Australian labour law.

3.3.1 Work, Health and Safety Laws

As noted earlier, work, health and safety laws are premised on the responsibility of employers to assess risks and protect workers from hazards, regardless of their employment status. Work health and safety protections are of critical and rising importance as increasing numbers of workers are exposed to high heat, polluted air, increased solar ultraviolent radiation and vector-borne diseases.^[38] For many employers in climate-changed workplaces, the implications of these laws are significant. They include investments in building modification, air-conditioning, ventilation, flexible working hours, working rotations, changes to dress codes, shade canopies, the implementation of monitoring programs and ‘buddy systems’; and changed schedules for drink breaks.^[39] Schofield-Georgeson has observed that there are affordances of state work health and safety law that enable worker perspectives on environmental policies to be, when expressed through a ‘provisional improvement notice’, legally enforceable rather than merely consultative.^[40]

There is, however, a gap between work, health and safety laws and the climate crisis that is both de facto and de jure. Empirical research into the adequacy of climate change based health and safety measures indicates that adequate responses are not being realised in practice.^[41] Such laws, in any event, are confined in their operation to the boundaries of the ‘business or undertaking’, or ‘any place where a worker goes, or is likely to be, while at work’, and only demand action that is ‘reasonably practicable’.^[42] They do not provide a collective basis for systemic responses to unsafe work due to environmental instability, which is generalised, chronic, involves multiple kinds of infrastructure breakdown and/or requires the wholesale relocation of people dwelling in an entire region.^[43] Nor are such laws likely to empower workforces in fossil fuel extractive industries to address the most fundamental cause of climate collapse (the failure to leave resources in the ground), since to do so would necessitate the winding down of enterprise itself — a matter unlikely to be judged as reasonably practical from the perspective of the employer.

3.3.2 The Absence of Climate Planning

The instability of the climate crisis takes us to the second area — the absence of climate planning. As Giddens has argued, planning takes on central importance in the climate crisis, in terms of climate mitigation and adaptation and holistic risk mitigation (addressing the risks of the climate crisis together with other risks experienced by contemporary societies). This fundamentally applies to the state but also to other levels of society.^[44]

Yet Australian labour law does not systematically provide for planning mechanisms to address the profound changes in the world of work demanded by the climate crisis. Net-zero transition plans are increasingly a feature of CSR initiatives in Australia; however, the credibility of these plans is open to question. A study of 10 prominent Australian companies found that ‘[d]espite public net zero commitments, none of the companies studied has a comprehensive, independently verified and fully costed plan for reducing their emissions in line with a scientific pathway’.^[45]

A lack of planning is particularly concerning in relation to the imperative to rapidly phase out fossil fuel extractive industries.^[46] The Net Zero Economy Authority (‘NZEA’), an agency within the Department of the Prime Minister and Cabinet (discussed at 4.1 below) offers a framework for workers, employers, businesses and investors in ‘regions notably affected by Australia’s net zero transition’ to take advantage of clean energy industries and mobilise private investment.^[47] The NZEA co-exists with Federal commitments to continue extracting coal and gas resources ‘for decades’; the rejection of calls to ban new fossil fuel projects; and the continuation of fiscal support for fossil fuel production through the Fuel Tax Credit Scheme, tax incentives under the Petroleum Resource Rent Tax, subsidised infrastructure and financing through Export Finance Australia and the Northern Australia Infrastructure Fund.^[48]

While the NZEA uses the language of ‘transition’ and ‘transformation’,^[49] there is nothing inevitable about the substitution of a fossil fuel based energy system by a renewables-based one at a societal level. The history of energy systems is overwhelmingly one of co-existence, addition and mutual entanglement rather than smooth and sequential ‘transition’.^[50] In energy sectors, there are radical disconnects in time, geography and security between employment in fossil fuel based industry and hypothetical jobs in renewable-based energy production. While the occupations and skills required for renewable energy production and fossil fuel production partially overlap, the location, parameters, conditions and timing of work commonly differs.^[51] The ongoing government support for new fossil fuel extractive projects, in parallel with measures to attract investment to clean investments, indicates that Australian workforce planning is oriented toward an overall energy addition, rather than an energy transition.^[52]

3.4 Australian Labour Law is Premised Upon Continuous Economic Growth

The premise of continuous economic growth is reflected in the object of the Fair Work Act which speaks of providing:^[53]

[A] balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians by … providing workplace relations laws that … promote productivity and economic growth for Australia’s future economic prosperity.

The ILO Declaration of Philadelphia also speaks of ‘the continuous improvement of productive efficiency’ and ‘measures to expand production and consumption’.^[54] Under the banner of ‘green growth’, ‘sustainable growth’ and the like, there is now a concerted push to decouple economic growth from greenhouse gas emissions (and the use of fossil fuels), with this decoupling explicit in ‘net zero’ commitments.

In line with ecological modernisation approaches,^[55] this push seeks to integrate environmental, economic and social considerations in a new model of growth. This kind of perspective finds inchoate expression in the stated goals of the Future Made in Australia Act 2024 (Cth) which, according to the ALP Albanese government, seeks:

[t]o help make Australia a renewable energy superpower … [t]o modernise and strengthen our economy, in a world built on cheaper and cleaner energy; [t]o grab the vast industrial and economic opportunities from the world’s shift to net zero; [a]nd share the benefits of those opportunities with every Australian.^[56]

This includes through the promotion of ‘safe and secure jobs that are well paid and have good conditions’ and the development of ‘more skilled and inclusive workforces.’^[57]

This industrial policy is, however, inchoate and contradictory. As noted above, it does not commit Australia to phasing out fossil fuel extraction or reducing subsidies to fossil fuel producers. Australia retains an open-ended commitment to developing fossil fuel resources for export (including an increase in production of coal and gas for 2030^[58]) and opposes efforts to develop international law to recognise the responsibility on high-emitting states to prevent transboundary harms that occur from greenhouse gas emissions.^[59] The Australian Workers Union (‘AWU’), Australia’s largest union, and the Offshore Alliance group (a partnership with the AWU and the Maritime Union of Australia) have intervened to support a 50-year extension to the north-west shelf gas export project, an undertaking which will result in emissions equivalent to 12 average Australian coal power stations over its lifetime.^[60] In supporting the continuation and expansion of fossil fuel extractive projects, in spite of the catastrophic climate implications, these unions are not alone in global terms.^[61] There are, therefore, many structural challenges to ensuring that a just transition in Australia also includes a ‘just cessation’, a number of which emerge from the limitations of labour law itself.^[62] The process of decoupling economic growth and greenhouse gas emissions in Australia is uneven and remains deeply shaped by fossil fuel capitalism.