On 23 January 2026, the Fair Work Commission handed down its decision finalising changes to workplace delegates’ rights terms across all modern awards, following the Full Federal Court’s December 2025 ruling (see related story).

The Commission confirmed that its task was a narrow and technical one: to correct jurisdictional errors identified by the Court and align the award term with the Fair Work Act, rather than to revisit broader policy questions about the scope of workplace delegates’ rights.

Consistent with the Court’s findings, the Commission has varied the award term to extend delegates’ representational and communication rights to all workers in an enterprise who are members or eligible to be members of the relevant union — including contractors and labour hire workers — and to broaden communication rights from communications “for the purpose of” representation to communications “in relation to” workers’ industrial interests.

The Commission has also modified restrictions on delegate conduct so that obligations to comply with employee duties and not interfere with work apply except where a delegate is reasonably exercising their statutory rights.

Importantly, the Commission rejected trade union submissions seeking to go further by inserting new protections directed at “other employers” operating at a worksite. The Full Bench found these proposals were not required by the Federal Court’s decision, fell outside the scope of the proceedings, and raised unresolved legal questions about whether award-based obligations can be imposed on employers who do not employ the delegate.

The revised delegates’ rights term will apply retrospectively from 1 July 2024 across all modern awards.

AREEA’s submission and position

AREEA lodged a submission to the Fair Work Commission in response to the Commission’s proposed award variations, focusing on how the Court’s decision should be implemented in a legally correct and workable way, while minimising unintended consequences for employers, productivity and workplace stability across the resources and energy sector.

AREEA’s submission emphasised that while some amendments to the existing award term were necessary to reflect the Court’s reasoning, the Commission’s role was a technical one — to align the award term with the statutory framework as interpreted by the Court, not to further expand delegates’ rights beyond what the legislation requires.

In particular, AREEA highlighted the need to:

• confine changes to those strictly required by the Court’s findings;

• preserve the statutory “reasonableness” threshold as a meaningful safeguard for employers;

• avoid drafting that creates uncertainty around operational control, safety management and employer obligations on complex, multi-employer worksites; and

• ensure the award term does not undermine the long-established distinction between union officials and employer-paid workplace delegates.

These issues are especially acute in the resources and energy sector, where worksites frequently involve multiple employers, contractors and labour hire providers operating in safety-critical environments.

Broader policy issues to be addressed through Closing Loopholes review

While the Commission has now finalised the award changes required by the Federal Court’s decision, AREEA continues to hold serious concerns about the broader workplace delegates’ rights regime introduced under the Albanese Government’s Closing Loopholes reforms.

Consistent with its long-standing position, AREEA has made clear that the Commission proceedings were not the appropriate forum to resolve these wider policy issues. Instead, AREEA will reserve its more fundamental criticisms of the delegates’ rights framework for the Government’s forthcoming statutory review of the Closing Loopholes legislation.

That review will be a critical opportunity to examine the real-world impacts of the laws on productivity, investment, compliance burden and workplace stability — particularly in complex, high-risk industries such as resources and energy.

AREEA will be seeking member input, case studies and evidence to inform its advocacy as part of that review. Members are encouraged to contact AREEA if they have experiences or concerns they wish to contribute ([email protected]).