A recent Full Federal Court decision has overturned key elements of the Fair Work Commission’s June 2024 workplace delegates’ rights determination, reopening the issue and materially expanding the potential scope of workplace delegates’ powers under the Fair Work Act.
The case arose from challenges by union parties, including the Mining and Energy Union, to the Commission’s original award term, which sought to place practical limits on the operation of the Albanese Government’s 2023 workplace delegates’ rights reforms.
AREEA, alongside other employer organisations, opposed the union challenge and was an active participant in the proceedings.
The Federal Court decision
In its decision of 17 December 2025, the Full Federal Court set aside the Commission’s earlier approach and required the Commission to remake the award term. In doing so, the Court held that the Commission had impermissibly narrowed the scope of delegates’ statutory rights.
In particular, the Court found that workplace delegates’ rights must extend:
beyond employees of the delegate’s own employer to all workers performing work at the enterprise, including contractors and labour hire workers;
to communications “in relation to” industrial interests, not merely communications undertaken for the purpose of formal representation; and
without absolute restrictions requiring delegates to prioritise employee duties or avoid any interference with work, unless such conduct falls outside the reasonable exercise of delegate rights.
The practical effect of the decision is to significantly broaden the reach of workplace delegates.
On the Court’s interpretation, employer-paid workplace delegates may be entitled to communicate not only with direct employees, but also with contractors and labour hire workers at a site, including workers who are merely eligible to join the relevant union. Those interactions may occur during working time and using employer-provided facilities.
Explaining the impact, AREEA Chief Executive Steve Knott AM said the outcome “cuts across a long-standing and well-understood distinction in Australia’s industrial system”.
“Union officials are appointed and funded by unions and their members. Workplace delegates, by contrast, are employees paid by the business and expected to perform productive work,” Mr Knott said.
“That separation has underpinned freedom of association, productivity and operational certainty across the resources and energy sector for generations.
“Now, in effect, employers may be required to facilitate union-related engagement involving non-employees, on the employer’s time and at the employer’s expense.”
Fair Work Commission response
On 23 December 2025, the Fair Work Commission issued a Statement responding to the Court’s decision.
The Commission has proposed amendments to its standard delegates’ rights award term that intend to bring it into line with the Court’s reasoning. In summary, the proposed changes would:
replace references to “eligible employees” with “eligible workers”, extending coverage to non-employees working at the enterprise;
expand communication rights from communications “for the purpose of representing” workers to communications “in relation to” their industrial interests; and
amend the restrictions on delegate conduct so that employee duties and non-interference obligations apply only outside the reasonable exercise of delegate rights.
The Commission proposes to apply the revised term across all modern awards, with submissions due by 16 January 2026 and a final determination expected by 23 January 2026.
AREEA’s position
AREEA is carefully considering the Commission’s proposed response and will make submissions addressing the proposed award term changes.
We recognise that some amendments are necessary to give effect to the Court’s decision. However, we remain deeply concerned about the broader policy consequences of the delegates’ rights regime and the way in which these laws blur the boundary between union officials and workplace delegates.
To that end, AREEA’s response to the FWC will focus on how it should apply the Federal Court’s reasoning, while reserving our members’ strongest objections to the expanded delegates’ rights framework for the Government’s forthcoming Closing Loopholes statutory review.
This is where the practical impacts on productivity, investment and workplace stability must be properly examined.
AREEA will continue to advocate forcefully for a fair, workable and balanced industrial framework that recognises the realities of modern worksites, preserves freedom of association, and protects productivity across Australia’s resources and energy industry.
To discuss this decision, its implications for your operations and/or to provide input to AREEA’s submission to the FWC on its response (note: due this Friday 16 January) contact [email protected].
Join the AREEA team for the latest on 2026’s big IR/ER issues
Q&A Workforce Webinar Thursday 29 January 29 | 12:30 pm – 1:00 pm AEST
2026 is shaping up to be a huge year in industrial and employee relations, in policy and in practice. With dual reviews on-foot of the National Employment Standards and the controversial “Closing Loopholes” legislative amendments, plus recent Federal Court decision on workplace delegates rights and BHP Coal ‘same job same pay orders’ in the mix, resources employers need to be prepared and informed.
Join the AREEA team for a wide-ranging 30-minute discussion on issues affecting your industry and workforce . Pre-load your questions with us via [email protected]
