Agency worker rights

With different types of employment status in Australia, it’s important, as an employer, to understand the differences between them and what the law says about hiring under various employment contracts.

Agency workers are one type of worker with their own rights and regulations, protected by the Fair Work Act 2009. In this guide we explore the rights of agency workers in Australia and the responsibilities of employers who opt to hire temporary staff via a recruitment agency.

What is an agency worker?

An agency worker is an individual supplied by a temporary work agency. They are contracted to work under this agency and are supplied to a hirer to complete work assignments. Whilst working for a hirer, they are supervised and managed by this business until they reach the end of their assignment.

Temporary agency work is typically short-term and spans between a few weeks to several months. Some agency workers may even be hired to cover leave such as maternity leave for permanent members of staff.

The following will also help you to differentiate an agency worker from another type of worker:

• They’re provided by an agency to work with you on a temporary basis

• You manage their work

• They’re not self-employed

An example includes:

A temporary warehouse worker supplied to a hirer. Supporting the business with an assignment to complete the picking and packing of goods for 3 months over the summer.

Key terms to remember:

• Temporary worker  – also known as a ‘temp’ is the worker supplied by an agency.

• Temporary Work Agency (TWA) – the agency which supplies agency workers.

• Hirer  – the employer hiring an agency worker.

• Assignment – the temporary work an agency worker does over a set period of time.

What does the law say about hiring agency workers?

The Fair Work Act 2009 ensures that agency workers receive the same or no less favourable treatment as comparable permanent employees after a certain period. Under an employment agency (or labour hire) arrangement, a contract exists between the agency and its client, and the agency and the worker, but there is no contract between the client and the worker. Employment agency arrangements are governed by Division 8 of Part 3 of the Act.

Key aspects of Division 8 include:

• Protected characteristics: Employees are protected from discrimination based on race, color, sex, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, union membership, and other factors. 

• Adverse action: The Act prohibits employers from taking adverse action (like dismissal, demotion, or other penalties) against an employee for exercising their rights or engaging in protected activities. 

• Union membership: The Act protects employees from discrimination based on their membership or non-membership in a union, according to Fair Work Ombudsman and Legal Aid NSW. 

• Workplace issues: Employees are protected for raising concerns about workplace safety, health, or unlawful conduct. 

• Redress: Employees who believe they have been unfairly dismissed or discriminated against can seek relief through the Fair Work Commission, according to Fair Work Ombudsman. 

The rights of agency workers

Agency workers in Australia, like all employees, have certain rights and protections under the Fair Work Act 2009. These rights include protection from discrimination, the right to a safe working environment, and the right to join a union and engage in collective bargaining. They are also entitled to the same minimum employment standards as permanent staff, including national minimum wage, holiday entitlement, and other leave entitlements. Additionally, agency workers have the right to refuse unsafe work and be consulted about health and safety issues. 

Employment agencies responsibilities towards them include:

• Finding work for free, but the agency can charge for services like CV writing.

• Providing written terms of employment.

• Making available relevant details (e.g. the start date) with a job offer.

• Communicating changes to terms and conditions.

But do agency works have rights from their first day of work? Yes. These are as follows:

• The use of shared areas and facilities.

• Information about job vacancies, but this doesn’t mean they’ll be suitable to apply for them.

Employment Standards

• National Minimum Wage: Agency workers are entitled to at least the national minimum wage.

• Holiday Entitlement: They have the right to a minimum of 5.6 weeks' holiday entitlement.

• Sick Leave: Agency workers are entitled to sick leave.

• Work Hours and Rest Breaks: They are entitled to appropriate work hours and rest breaks as per relevant legislation and awards. 

Health and Safety

• Safe Workplace: Agency workers have the right to a physically and psychologically safe workplace. 

• Right to Refuse Unsafe Work: They can refuse to perform work that they believe is unsafe, provided they do so in good faith and after reasonable consultation. 

• Consultation: They have the right to be consulted about health and safety issues in the workplace. 

Protections from Discrimination:

• Discrimination: Agency workers are protected from discrimination on the basis of their employment status, as well as other prohibited grounds like race, gender, age, etc. 

Freedom of Association:

• Union Membership: Agency workers have the right to join a union and engage in collective bargaining with their employer to negotiate better terms and conditions. 

Other Important Rights:

• Workplace Safety: They have the right to be shown how to work safely, have appropriate safety equipment provided, and speak up about work conditions. 

• Sham Contracting: Agency workers are protected from sham contracting, where an employer disguises an employment relationship as an independent contracting arrangement. 

The importance of compliance

If an agency worker believes that they are not being treated equally in accordance with the Fair Work Act 2009, they can make a legal claim against either or both the hirer and the agency.

If your business is not compliant with the regulations you run the risk of potential legal fees, compensation payments, and being taken to an employment tribunal.

Use HR software to streamline the hiring process of agency workers

With so many employment laws to keep up with, it can be difficult to ensure that your business stays HR compliant. But it doesn’t have to be complicated.

With the support of HR software, you can stay on top of all your HR responsibilities and legal requirements with a simple, all-in-one, digital solution.

From storing your employment contracts and employee records with unlimited HR document storage, to accessing the support of employment relations experts, BrightHR is your one-stop shop for all your HR tasks. Including helping you stay legally compliant when hiring agency workers.

To see how BrightHR can help you, book a free demo today for a run-through of our award-winning HR software.