Workplace Watch – 29 January 2026: FWC redrafts delegates’ rights, SJSP orders, stand downs during industrial action
Welcome to the first edition of the KHQ Workplace Watch for 2026! We look forward to keeping you up to date with all of the key developments in workplace relations and safety in what promises to be another big year in our ever changing area of practice.
In this edition we cover significant decisions from the Fair Work Commission and Federal Court. These include decisions on workplace delegates’ rights, the Fair Work Commission exercising its power to amend enterprise agreements to ensure they meet the BOOT, same-job, same-pay orders, and stand downs during industrial action.
FWC redrafts delegates’ rights term following Full Court decision
The Fair Work Legislation Amendment (Closing Loopholes) Act 2023 (Cth) amended the Fair Work Act 2009 (Cth) (FW Act) relating to terms that must be included in modern awards. Among other things, the Closing Loopholes Act amendments requires that a modern award must include a delegates’ rights term for workplace delegates covered by the award.
In Construction, Forestry and Maritime Employees Union v Australian Industry Group [2025] FCAFC 187, the Full Court of the Federal Court of Australia made orders quashing determinations made by the Fair Work Commission to vary nine modern awards to include a delegates’ rights term.
In the Full Court decision, Justices Wheelahan, Jackson and Dowling found that the Commission had exceeded its powers in three significant respects:
- First, the Commission impermissibly confined delegates’ representational rights to representing employees of the employer of the delegate, rather than all employees who work in the enterprise or regulated business.
- Second, the Commission impermissibly restricted delegates’ communications with workers for the purpose of representing their industrial interests, contrary to the broader communication rights conferred by the FW Act. The relevant section of the FW Act entitles the workplace delegate to communicate with those persons in relation to those industrial interests.
- Third, the Commission imposed additional limitations on the exercise of delegates’ rights that are not provided for in the FW Act.
Following the Full Court decision, the Commission has redrafted the delegates’ rights term and inserted the term into all modern awards.
A copy of the Full Court decision is available here. The Commission statement, published on 23 December 2025, is available here. The Commission decision, varying the modern awards to include a compliant delegates’ rights term published on 23 January 2026, is available here.
A first for section 191A – Fair Work Commission amends an enterprise agreement for approval
The Fair Work Commission has approved three ALDI Stores warehousing enterprise agreements using its powers under s 191A of the the FW Act for the first time.
Section 191A allows the Commission to approve an agreement, with an amendment specified by the Commission, if the Commission is concerned that the proposed agreement does not meet the better off overall test (BOOT) and the amendment is necessary to address the concern.
Deputy President Slevin raised a concern that the proposed ALDI agreements did not meet the BOOT for part-time warehouse employees, compared to the Storage Service and Wholesale Award 2020, due to the uncertainty associated with the employment arrangements for those employees. The amendment proposed by the Commission to address the concern included that ALDI was to reach agreement with each of its part-time employees on a regular pattern of work, specifying at least, the hours worked each day, which days of the week the employee will work, and the actual starting and finishing times each day and to record that agreement in writing.
ALDI opposed the proposed amendment, including on the basis that it would significantly change the employment arrangements in the proposed agreements and impose restrictions on the flexibility that is central to its operations. ALDI also submitted that the amendments proposed amounted to a fundamental change in the agreements.
Ultimately, DP Slevin was satisfied that the amendments requiring agreed patterns of work did not fundamentally change the agreements and while recognising ALDI would lose some flexibility when the new agreements take effect, DP Slevin did not consider the operational impact associated with that loss to outweigh the need to address the uncertainty for part-time employees.
Read the decision here.
Court redraws boundaries of ‘regulated employees’ in SJSP dispute
The Full Court of the Federal Court of Australia has clarified the scope of “regulated employees” under the FW Act, overturning the “regulated labour hire arrangement orders” or “same-job same-pay” orders made by the Fair Work Commission affecting employees of Skilled Workforce Solutions (NSW) Pty Ltd (Skilled) at open cut coal mines at Bengalla and Mt Arthur.
The Full Court found that the orders made by the Commission were beyond power because, in each case, the orders extended beyond employees that Skilled was supplying, or would be supplying, to perform work for Bengalla or Mt Arthur.
In respect of the Mt Arthur coal mine, the Full Court reviewed the evidence before the Commission and found that:
- the Mt Arthur Coal Enterprise Agreement 2023 (Mt Arthur EA) covered “production employees” and “engineering employees”;
- Skilled supplied fuel attendants and haul operators (which were classed as production employees).
Despite these findings, the Commission made an order that applied to Skilled employees who would, if employed by Mount Athur Coal Pty Ltd, be covered by the Mt Arthur EA (i.e. not limited to production employees).
In respect of the Bengalla coal mine, the Full Court reviewed the evidence before the Commission and found that:
- the Bengalla Enterprise Agreement 2022 (Bengalla EA) covered technicians, being “persons designated by Bengalla as technicians and performing production and engineering work”; and
- Skilled supplied employees engaged in production work associated with the mining and extraction of coal and its transport to the Coal Handling and Preparation Plant.
Despite these findings, the Commission made an order that applied to Skilled employees who would, if employed by Bengalla Mining Company Pty Ltd, be covered by the Bengalla EA (again, not limited to production employees).
The Full Federal Court, comprising Justices Rangiah, Raper and Shariff held that “regulated employees” for regulated labour hire arrangement orders must be confined to the specific class of workers the Commission is satisfied are, or will be, supplied to the host.
Read the Full Court’s decision here. Read the FWC’s later decision in relation to the Bengalla Mining Company here and the order here.
Full Bench clarifies application of stand down provisions where redeployment is refused
A Full Bench of the Fair Work Commission has found that St Vincent’s Private Hospitals was not entitled to rely on the statutory stand down provisions in s 524 of the FW Act to withhold pay from a nurse who refused redeployment during protected industrial action. However, the Commission ultimately declined to order that the nurse be paid for the shift she did not work.
The dispute arose after a registered nurse participated in protected industrial action in the form of a ban on redeployment to other wards. Prior to a rostered night shift, the Hospital advised the nurse that there was insufficient work on her usual ward and that she would need to be redeployed on another ward if she wished to work that shift. The nurse declined the redeployment in accordance with the work ban.
Section 524(1) of the FW Act provides:
An employer may, under this subsection, stand down an employee during a period in which the employee cannot usefully be employed because of one of the following circumstances:
- industrial action (other than industrial action organised or engaged in by the employer);
- a breakdown of machinery or equipment, if the employer cannot reasonably be held responsible for the breakdown;
- a stoppage of work for any cause for which the employer cannot reasonably be held responsible.
At first instance, the Commission accepted the Hospital’s position that the nurse could not be “usefully employed” because of industrial action and that a stand down under section 524(1)(a) was therefore permitted. On appeal, the Full Bench found that this approach involved an incorrect application of the provision.
The Full Bench observed that section 524 is concerned with circumstances where industrial action “has produced a situation in which the employee … cannot be usefully employed in the sense that there is no useful work for them to perform”. In this case, the Full Bench found that this was not what occurred. There was no dispute that there was useful work available on another ward, and the nurse’s refusal did not affect the availability of useful work (see [47]).
The Full Bench explained that section 524 “addresses a circumstance in which there is no useful work available to perform rather than a circumstance in which there is available work, which the employee refuses to perform” (see [50]).
Despite concluding that the Hospital was “not entitled” to stand the nurse down under section 524(1)(a), the Full Bench declined to order payment of wages. In re-determining the dispute, it found that the nurse had “refused to perform work she could be directed to perform under her contract of employment and which she commonly undertook as part of her employment” (see [57]).
The Commission noted that the entitlement of an employee to wages is ordinarily dependent on the employee performing their full duties, and that the stand down provisions do not displace an employer’s ability to refuse part performance. On that basis, the Full Bench found it was not fair or appropriate to require the Hospital to pay the nurse for the shift.
Read the decision here.
Federal Court upholds SJSP orders for BHP OS entities – May be heading to the High Court?
The Full Court of the Federal Court of Australia has rejected BHP’s challenge to the Full Bench of the Fair Work Commission same-job, same-pay orders affecting employees of Operations Services entities (BHP’s in-house labour providers) who are engaged in work at three coal mines at the Bowen Basin.
The Full Bench decision was covered in a previous edition of the Workplace Watch (available here). Before the Full Bench, BHP argued that the performance of work by the employees of the OS entities was “for the provision of a service, rather than the supply of labour”, and therefore s 306E(1A) of the FW Act precluded the making of the regulated labour hire arrangement orders. The Full Bench rejected that argument.
Before the Full Court, BHP sought judicial review of the Full Bench’s decision arguing that the Full Bench misconstrued s 306E(1A) in various respects. The Court was not persuaded, finding no error in the Full Bench’s reasoning and conclusion that the arrangements involved the supply of labour and did not fall within the service contractor exemption s 306E(1A) of the FW Act.
Read the Full Court’s decision here.
It has been reported that BHP will be seeking special leave to appeal to the High Court to overturn the Full Court decision. We will keep you updated on any developments in future editions of the Workplace Watch.
This article was written by Sandy Suliman (Associate), Tim Agius (Associate), Marcus Di Blasio (Senior Associate), Ned Fitzgerald (Senior Associate) and Tom Molan (Principal Solicitor).
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