Workplace Watch – 20 March 2026: Urgent FWC fuel cost intervention, industrial disputes data released by the ABS, AI-fuelled dismissals being upheld
Welcome to the latest edition of the KHQ Workplace Watch.
In this edition we cover the FWC’s involvement in rising fuel costs impacting road transport contractual chains, the Federal Government’s proposed amendment to the Fair Work Act to create a new pathway for ‘emergency’ contract chain orders in transport, the latest industrial disputes data released by the ABS, the KFC rest break class action and a number of other recent FWC and Federal decisions. These include reasonable notice claims in the context of general protections proceedings, AI-fuelled dismissals being upheld, employer lockouts in response to industrial action and forced resignation where “excessive” workload is claimed by employees.
Urgent FWC fuel cost intervention and proposed ‘Emergency’ RTCCO reforms
The Fair Work Commission (FWC) agreed to convene an urgent conference following a joint request by the Transport Workers’ Union (TWU) and an employer association, Australian Road Transport Industrial Organisation (ARTIO). The TWU and the ARTIO sought the FWC’s urgent assistance to facilitate urgent ‘discussions’ amongst parties involved in the TWU’s current applications for minimum standards orders and contractual chain orders, and other stakeholders across the road transport sector and supply chain, with the stated objective of addressing recent increases in fuel costs across road transport contractual chains.
A case management conference was held on 18 March 2026, which was attended by almost 70 representatives of industrial organisations, business and interested persons, in which some parties questioned the basis upon which the FWC could make any order or exercise any power under the Fair Work Act 2009 (Cth) (FW Act) to address the concerns raised by the TWU and the ARTIO.
Material filed by the TWU indicated that the union and the ARTIO intended to pursue regulatory intervention in the road transport supply chain, potentially seeking measures that would:
- require primary parties (being customers of road transport operators) to absorb fuel price increases through weekly price reviews and adjustments to contract rates, potentially determined by a formula established or published by the FWC; or
- impose a fuel-related levy or surcharge payable to transport operators, owner‑drivers and gig economy workers, with weekly adjustments linked to published average fuel price data.
In parallel, the Federal Government has now announced that it intends to amend the FW Act to allow parties to make ‘emergency’ applications for Road Transport Contractual Chain Orders (RTCCO) to deal with the current spike in fuel prices caused by the war in the Middle East.
On 26 March 2026, the Fair Work Amendment (Fairer Fuel) Bill 2026 passed the House of Representatives. The Bill proposes to amend the FW Act to allow the Minister to determine whether an application for a RTCCO constitutes an ‘emergency application’, thereby permitting the FWC to expedite consultation timeframes and make orders on an accelerated basis bypassing the minimum six-month consultation period which is currently required.
If enacted, these amendments would create a pathway for binding orders affecting thousands of road transport supply chain participants to come into effect on very short notice, following a limited opportunity for affected parties to make submissions.
You can find a transcript of the 18 March 2026 case conference here.
You can find Vice President Gibian’s 19 March 2026 statement here.
You can find the Fair Work Amendment (Fair Fuel) Bill 2026 here.
FWC may amend Lady Gowrie Agreement not capable of approval due to 7 working day limit for referring disputes
The FWC will not approve Burles Consulting’s proposed Lady Gowrie Tasmania Enterprise Agreement 2025 after concerns were raised about a 7 working day limit for referring disputes.
Clause 41.3(c) of the proposed Agreement stated that disputes not referred to the FWC within 7 working days of completing the internal process are “deemed to have been resolved and the matter cannot be referred to FWC”.
Commissioner Clarke warned this type of dispute resolution clause could strip workers of the right to pursue grievances. He described it as a ‘legal fiction’ noting the internal process may only involve a meeting where no formal positions are taken, leaving disputes unresolved but are ‘resolved’ under the 7 working day rule.
Commission Clarke also said the clause failed to comply with section 186(6) of the FW Act, which requires agreements to provide an independent dispute resolution process and emphasised that the FWC must be able to address all matters arsing under the Agreement.
Burles Consulting offered to extend the timeframe to ten working days, but Commissioner Clarke said this does not fully resolve the issue and ‘merely narrows the number of disputes that might be affected’.
Commissioner Clarke was of the view that “the potential loss of the right to pursue a dispute in the Commission and elsewhere on account of a failure or inability to comply with a 7 working day time limit is a major deficit from a BOOT perspective.” While some pay and conditions exceed the underlying award, others were less beneficial. Commissioner Clarke observed that the seven-day limit was a ‘major deficit’ because employees could lose the ability to pursue disputes over pay or conditions.
Commissioner Clarke indicated that without amendment, the proposed Agreement could not be approved. Under section 191A of the FW Act, the FWC can amend agreements to address concerns. Commissioner Clark has invited the views of the bargaining representatives and employees before publishing a final decision.
You can read the Burles Consulting Pty Ltd, Lady Gowrie Tasmania Enterprise Agreement 2025 [2026] FWC 805 (12 March 2026) decision here.
General protections claim defeated, but a $176,000 lesson in contract drafting
Judge Egan has delivered a useful reminder that success in a general protections claim does not eliminate the risk in a breach of contract claim (in this case, a reasonable notice claim).
Mr Lord alleged that his employment was terminated in contravention of the general protections provisions of the FW Act, claiming he was dismissed because he had made complaints about workplace bullying.
Toll argued that Mr Lord’s termination formed part of a broader business shift under new leadership, driven by operational and strategic considerations rather than any prohibited reason.
Judge Egan accepted that the complaints were capable of constituting a workplace right. However, His Honour ultimately found that the respondents had discharged the reverse onus of proof under section 361 of the FW Act.
The evidence from Toll’s witnesses was regarded as clear, consistent and persuasive, establishing that the decision to terminate was unrelated to Mr Lord’s complaints of bullying. The general protections claim was therefore dismissed.
Despite that outcome in respect of the general protections claim, Toll was not successful in defending the breach of contract claim.
Judge Egan turned to the employment contract, which provided for termination on ‘months’ written notice’ without specifying a duration. Toll sought to rely on the three-month notice period stated in the termination letter, but Judge Egan held the clause was still uncertain and implied a term of reasonable notice.
Given Mr Lord’s seniority, age, and 34 years of service, Judge Egan found that an amount of 12 months’ notice was reasonable in the circumstances and awarded damages of $176,250 plus interest for breach of contract.
You can read the full Lord v Toll Transport Pt Ltd [2026] FedCFamC2G 348 decision here.
FWC upholds dismissal of AI-fuelled employee
The FWC has upheld the dismissal of an employee who sent a series of lengthy AI-generated emails in connection with a workplace complaint.
What began as a brief disagreement on Microsoft Teams which the employee characterised as ‘bullying’, expanded into the employee making wide-ranging allegations of sexual harassment, discrimination and procedural unfairness. To communicate these grievances, the employee acknowledged that he relied on AI to send a barrage of lengthy emails over a short period of time.
In the decision, Deputy President Slevin held that this reliance “led to his demise” as the employee’s communications were overly dense, repetitive, unreasonably demanding and were ultimately inappropriate for a workplace setting. The Deputy President also held that the “combative” tone of the communications justified the employer’s decision to dismiss the employee for serious misconduct.
While the Deputy President acknowledged that the employer failed to give the employee a “direct opportunity to respond to the allegations he had become ungovernable due to his voluminous and obstructive communications”, the FWC held that this failure was ultimately outweighed by the employee’s misconduct. This was further supported by the fact that the employment relationship had clearly deteriorated beyond repair.
You can read the full decision of Wibmer v Fujifilm Data Management Solutions Pty Ltd [2026] FWC 835, here.
FWC rejects claim that “excessive” workload forced resignation
In a recent decision, the FWC has dismissed a general protections dismissal application brought by an employee who claimed she was forced to resign due to what she described as an “excessive” workload. The FWC found that although the employee genuinely felt overwhelmed, the evidence did not establish the employer’s conduct forced her resignation.
The employee commenced employment in March 2022 as a casual Brand Experience Assistant and was later appointed to a permanent full-time role in April 2024. Following her transition to the full-time position, the employee’s workload “increased significantly”, supposedly sparked by staff shortages, new projects and additional duties allocated by management.
The employee claimed that this increased workload caused her to suffer chronic stress and health issues including migraines. The employee claimed that she made multiple attempts to raise workload concerns with her employer, which were not addressed. Ultimately, the employee resigned but indicated to her employer that she would withdraw her resignation if either her workload was reduced, or she received a substantial pay increase. The employer did not accept either of her proposals and did not respond with any counter proposals.
In assessing the claim, Commissioner Crawford accepted that the employee genuinely felt as though she had “no option” but to resign. However, it was emphasised in the decision that an employee working “excessively hard” during normal working hours is not, of itself, sufficient to establish that a resignation was the probable result of the employer’s conduct. The Commissioner also highlighted that the employee had other options available to her instead of resigning, such as lodging a formal grievance with her employer or seeking anti-bullying orders if she believed her managers were acting unreasonably in allocating excessive work that created a safety risk.
You can read the full decision of Emily Martin v Scentre Pty Limited [2026] FWC 881, here.
KFC rest break class action moves toward settlement
A national class action against KFC and its franchisees is moving toward resolution, with a proposed settlement of $28.8 million in a case concerning employee rest break entitlements.
The claim alleged that workers across more than 700 KFC stores were not provided with 10 minute paid rest breaks during shifts of four hours or longer. It covered the period from October 2017 to December 2023 and applied to employees who missed some or all of their required breaks.
Under the proposed settlement agreement, KFC and participating franchise operators will pay compensation to eligible workers, with the final amount depending on how many people register. The settlement remains subject to approval by the Federal Court.
The proceedings were commenced in late 2023 by the Shop Distributive and Allied Employees Association along with current and former employees, with the class action cases run by Gordon Legal and Shine Lawyers. In February 2026, the parties agreed to resolve the matter without proceeding to trial. If approved, a registration process will be opened for affected workers to claim compensation.
Separate but similar proceedings involving McDonald’s are continuing, with multiple class actions and union matters listed for hearing later this year. These cases also relate to rest break entitlements and may affect a large number of workers across the fast food sector.
FWC determines that employer’s lockout was lawful
The FWC has found that a company acted lawfully when it locked out workers during an industrial dispute, rejecting the CEPU’s attempt to stop the action.
The matter involved Dynamic Electrical Constructions, where employees at a New South Wales workshop had been engaged in industrial action for several weeks. During this time, union officials also attended the site to carry out safety inspections and raise concerns about workplace conditions.
In response, the employer moved to lock out its workers. The CEPU argued the decision was not a valid response to the industrial action and was instead linked to the safety inspections. It applied under section 418 of the FWC Act, seeking that the FWC stop unprotected industrial action.
The Commission found the employer had already properly warned that a lockout could occur if workers took industrial action. Deputy President Boyce noted that the CEPU needed to show the lockout was not in response to industrial action, stating that the onus fell on the union applicant and that “the bar is low (from a causation perspective)”.
Relevantly, the Deputy President made clear that even if other factors were involved, this would not necessarily invalidate the lockout, explaining that “as long as employer response action is in response to industrial action… it will still be in response (in whole or in part) to the industrial action”.
Based on the timeline and evidence, the Commission found the lockout had been organised as a response to the industrial action and that it satisfied the requirements set out under section 411 of the FW Act.
You can find the full Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Dynamic Electrical Constructions Pty Ltd t/as Dynelec Australia [2026] FWC 824 decision here.
Workplace disputes climb as WFH laws are scrutinised
Australia Bureau of Statistics data confirms a 20% rise in days lost to industrial disputes in 2025, alongside increased employee involvement and dispute frequency, despite subdued long-term trends in comparison to the 80s and 90s.
ABS metrics rose across all indicators in 2025, with 166,700 working days lost and participation exceeding 112,000 employees. Generally, the number of disputes rose from 194 in 2024 to 213 in 2025.
In addition, the Senate inquiry into statutory work from home rights has been deferred to June, reflecting ongoing legislative deliberation.
You can find the full ABS data here: Industrial Disputes, Australia, December 2025 | Australian Bureau of Statistics.
This article was written by Paul Chatziopoulos (Law Graduate), Sandy Suliman (Associate), Tim Agius (Associate), Marcus Di Blasio (Senior Associate), Ned Fitzgerald (Senior Associate) and Michael Cochrane (Principal).
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