Right to Work and Other Work-Related Rights

Right to Work and Other Work-Related Rights

Section 27B of the Human Rights Act 2004 says that:

  1. Everyone has the right to work, including the right to choose their occupation or profession freely. The practice of a trade, occupation or profession may be regulated by law.
  2. Everyone has the right to the enjoyment of just and favourable conditions of work.
  3. Everyone has the right to form or join a work-related organisation, including a trade union, with the objective of promoting or protecting their economic or other social interests.
  4. Everyone has the right to protection against acts of anti-union discrimination in relation to their employment.
  5. Everyone is entitled to enjoy these rights without discrimination.

Section 27B is based on two treaties to which Australia is a party. Specifically, it is based on articles 2(2), 6(1), 7 and 8 of the International Covenant on Economic, Social and Cultural Rights and article 1 of the International Labour Organisation Right to Organise and Collective Bargaining Convention (No 98).

Scope of the rights

Section 27B proclaims the right of everyone to work and to just and favourable conditions of work. It also protects the right to form and join trade unions and other work-related organisations. Everyone is entitled to enjoy these rights without discrimination, including discrimination on the basis of membership of, or association with, a union. A note to section 27B lists other examples of discrimination, namely, discrimination because of race, colour, sex, sexual orientation, language, religion, political or other opinion, national or social origin, property, birth, disability or other status.

While many aspects of workplace activity in the ACT are governed by the Commonwealth’s Fair Work Act 2009, section 27B nevertheless applies in a variety of circumstances, particularly where ACT laws regulate matters relating to employment or where the ACT undertakes actions as an employer.

Right to work

The right to work is set out in section 27B(1). In its General Comment on the right to work (General Comment 18), the United Nations (UN) Committee on Economic, Social and Cultural Rights has described this right as “essential for realizing other human rights” and “an inseparable and inherent part of human dignity”. This recognises the significance of earning a living and adopting a trade, occupation or profession to a person’s role in society and their family.

The right to work includes all forms of work, whether independent or salaried, and encompasses work in both the public and private sectors. The UN Committee on Economic, Social and Cultural Rights has said in its General Comment 18 that all forms and levels of work must be available, accessible and acceptable.

However, the right to work is not an unconditional guarantee of employment. Rather, it requires government to undertake particular actions to facilitate employment. This includes safeguarding the right of everyone to the opportunity to gain their living by work which they freely choose or accept. Such work must not be forced; it must be voluntarily accepted and not entered into under threat of penalty. This right also means that people must not be unjustly deprived of work, and so must be protected from unfair dismissal.

There are reasonable and justified limitations on the ability to choose an occupation or profession freely, which will not, in themselves, violate the right to work. These include educational qualifications, experience and registration requirements for certain roles. The second sentence of section 27B(1) acknowledges that there can be laws regulating the practice of a trade, occupation or profession.

Right to enjoy just and favourable conditions of work

The right to enjoy just and favourable conditions of work, set out in section 27B(2), guarantees basic minimum conditions for all workers. As stated in article 7 of the International Covenant on Economic, Social and Cultural Rights, and in the UN Committee on Economic, Social and Cultural Rights’ General Comment 23 on this right, these conditions include:

  • fair wages and equal remuneration without distinction for work of equal value, including women being guaranteed equal pay and conditions for equal work. “Remuneration” has a broader meaning than wages. It also includes direct or indirect allowances such as grants and contributions to health insurance;
  • remuneration that provides a decent living for the worker and their family, in light of the economic and social conditions at the time, such as the cost of living;
  • safe and healthy working conditions, ensured by laws and policies aimed at minimising, as far as reasonably possible, occupational and health hazards in the working environment, including mechanisms for appropriate investigation of workplace accidents;
  • equal opportunity for promotion to an appropriate higher level, subject only to considerations of seniority and competence;
  • rest, leisure and reasonable limitation of working hours, including periodic holidays with pay as well as remuneration for public holidays;
  • freedom from violence and harassment, including sexual harassment.

Right to form or join work-related organisations

The right of every person to form or join a work-related organisation with the objective of promoting or protecting their economic or other social interests, set out in section 27B(3), complements the general right to freedom of association protected in section 15(2) of the Human Rights Act.

The right to form or join work-related organisations extends to all professional, employer and employee associations; it is not restricted to trade unions. In its General Comments 18 and 23, the UN Committee on Economic, Social and Cultural Rights has called this right a component and a collective expression of the right to work, as well as a crucial means of introducing, maintaining and defending just and safe working conditions.

Although section 27B(3)’s primary source is article 8 of the International Covenant on Economic, Social and Cultural Rights, the right to form and join work-related organisations is also protected in two other treaties to which Australia is a party: the International Labour Organisation Freedom of Association and Protection of the Right to Organise Convention (No 87) and, regarding trade unions specifically, article 22 of the International Covenant on Civil and Political Rights.

Obligations of progressive realisation and obligations of immediate effect

Unlike most other rights in the Human Rights Act, the ACT may give effect to (or “realise”) some aspects of the rights protected under section 27B progressively. The concept of “progressive realisation” is based on article 2(1) of the International Covenant on Economic, Social and Cultural Rights. That provision requires Australia and each other party to that treaty:

“to take steps, individually and through international assistance and cooperation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in [the treaty] by all appropriate means, including particularly the adoption of legislative measures.”

However, several aspects of the rights in section 27B have immediate effect – meaning that the ACT must guarantee them right away, rather than giving effect to them progressively over time. These aspects include:

  • the right of every person to form or join a work-related organisation with the objective of protecting the person’s economic or social interests;
  • the right of every person to enjoy these rights without discrimination, including anti-union discrimination.

The UN Committee on Economic, Social and Cultural Rights has also clarified in its General Comment 18 that, even though aspects of these rights may be realised progressively, countries must take all necessary steps toward fully realising the right to work and countering unemployment at the earliest opportunity. These steps must include having specialised employment services (whether public or private) to help people to identify and access available employment, enabling and supporting access to technical and vocational education and promoting public awareness of the right to work.

When could these rights be relevant?

The actions of government agencies and other public authorities can both promote and limit human rights. Among other examples, section 27B may be relevant to:

  • any aspect of employment or workplace relations regulated by the ACT;
  • conditions or requirements, such as licensing arrangements, for working in a particular occupation or profession;
  • technical and vocational education, including the development, approval or delivery of guidance, training programmes and policies, which are designed to promote employment;
  • mechanisms that compensate people in the event of loss of employment or ability to work;
  • arrangements pertaining to recruitment, advancement, probation and retirement;
  • collective bargaining and negotiation of enterprise agreements;
  • long-service and parental leave, work, health and safety and labour hire processes;
  • discriminatory employment action by ACT public authorities;
  • use of overt and covert surveillance in workplace environments;
  • providing reasonable adjustments and flexibility for people with disability, women and other groups (including in relation to physical accessibility of workplaces).

Cases

ACT courts have rarely considered the rights in section 27B. One of the few times this has happened was in a series of cases brought by Mr Ezekiel-Hart against the Council of the Law Society of the ACT and others. Mr Ezekiel-Hart (the plaintiff) claimed that the Council breached s 27B, among other sections of the Human Rights Act, by refusing to grant him a certificate to practise law. However, in Ezekiel-Hart v Council of the Law Society of the ACT (No 3) [2022] ACTSC 300, the ACT Supreme Court noted that rights protected by the Human Rights Act may be subject to reasonable limits set by laws and concluded that a decision in accordance with ACT law refusing to grant the plaintiff a practising certificate was not, in itself, a denial of any human right protected by the Act.

Decisions of international courts and of International Labour Organisation expert bodies provide more detailed guidance about the right to work and other work-related rights set out in section 27B.

For example, the Inter-American Court of Human Rights has considered in a number of cases the circumstances in which dismissals of employees will violate the right to work. These cases include Benites Cabrera et al v Peru (Judgment of 4 October 2022), where the Court decided that Peru arbitrarily dismissed 184 congressional employees, violating their right to work. As it had done in earlier cases, the Court said that “work stability” is a component of that right. This does not mean that there must be “unrestricted permanence” of a worker’s post, but does require, among other measures, that if the worker is dismissed they should be given sufficient reasons for this and allowed to challenge the decision to dismiss them. In this case, the 184 employees were not given “justifiable reasons” for their dismissal and were barred from filing an application contesting it.

The International Labour Organisation’s Committee on Freedom of Association has considered complaints about alleged violations of the right to protection against acts of anti-union discrimination in various countries, including India, the Philippines, Iran and Guatemala. In decisions on these complaints, this Committee has said that acts of anti-union discrimination may vary in nature, and that the protection against such acts should cover not just hiring and dismissal, but also measures during a person’s employment including transfers, downgrading and suspension. This Committee has published a compilation of these and many other relevant principles stated in its decisions on complaints, under the heading “Protection against discrimination”.

Note:

This factsheet is not intended to be a substitute for legal advice.

Last updated January 2026.