Working paper

Making rights reality: the role of courts in assisting vulnerable hospitality workers to bridge the gap between rights possession and enforcement

Law Employment Social issues Human rights Australia

This paper examines barriers that prevent the enforcement of hospitality workers' rights.


It is beyond doubt that despite the existence of legislated minimum employment entitlements in Australia, many businesses employing vulnerable workers fail to provide these entitlements to their employees. Apart from undermining the most basic function of employment legislation as a safety net for these employees, such breaches serve to further cement the social and economic disadvantage experienced by the workers affected, most of whom feel helpless to enforce their rights.

Whilst the presence of legislated minimum standards is essential to overcoming this disadvantage, the mere presence of such rights is an incomplete mechanism for ensuring employees-enjoy-the-benefits-intended-for them by the legislature. In practice, there are a host of other forces which act to determine whether employees can enforce their legal employment rights consistently and in a timely and cost effective manner. For already vulnerable workers, these factors can operate to erect large barriers hindering employee efforts to enforce these rights, obstacles seemingly impossible for these workers to surmount.

In addressing this issue, this paper has three broad aims. Firstly, it will discuss how these forces operate as barriers to rights enforceability in the specific context of the hospitality industry, where workers reliant on minimum entitlements experience high levels of vulnerability to employer exploitation. Secondly, by drawing on recent Federal Circuit Court cases involving hospitality-employers-found in breach of their basic statutory obligations, this paper will discuss the attitudes-expressed by the courts as representatives of the legal system towards employer-conduct-in-the-context-of-employee vulnerability, and the court’s attempts to assist employees bridge this enforcement gap. Finally, this analysis will seek to identify limitations of the court’s attempts to assist rights enforcement and consider alternative approaches available to the court that may be more effective achieving this goal.

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