Government introduces further Fair Work changes

Government introduces further Fair Work changes impacting FWC proceedings, road transport contractor dismissals & supported multi-bargaining.

The Federal Government has today introduced the Workplace Relations Legislation Amendment (Building Cooperative Workplaces No. 1) Bill 2026 (Bill) into Parliament, proposing a series of changes to the Fair Work Act 2009 (FW Act). 

The changes have primarily been aimed at facilitating easier processing of cases before the Fair Work Commission (FWC), following prominent public commentary by the President of the Commission, Justice Hatcher, regarding the flooding of the FWC with AI-enabled claims primarily by self-represented litigants.

However, the changes go beyond this issue alone and make other material alterations to the FW Act.

The key changes include the following:

1. New FWC process for General Protections claims, where an employer raises a jurisdictional objection to an application proceeding.
2. Expanded access to unfair contract termination claims for regulated road transport contractors.
3. Creating new avenues for the FWC to deal with identified frivolous or vexatious litigants.
4. Increasing the ability for the FWC to determine unfair dismissal, unfair termination and unfair deactivation matters on the papers.
5. A streamlined and mandatory process for supported bargaining authorisation applications to be issued following the expiry of a previous supported bargaining enterprise agreement. The new process will make it harder for employers to avoid supported bargaining authorisations once they have already been subject to a supported bargaining enterprise agreement. 

General protections changes

When General Protections claims are made arising from an employee’s dismissal, jurisdictional objections can commonly arise. For instance, a company might allege that the employee resigned and was not dismissed or, alternatively, that the worker was never an employee but rather a contractor or labour hire worker.

Since the 2020 decision of Coles Supply Chain Pty Ltd v Milford [2020] 279 FCR 591, the FWC has been required to consider these jurisdictional objections in advance before dealing with the dispute in any way, including by conciliation.

This has often resulted in legal costs being incurred early in the proceedings as the parties arbitrate whether a dismissal has occurred, before a conference can even be convened to see if the substance of the General Protections claim can be resolved.

The Bill ceases this current practice, by allowing a person to bring a General Protections claim if they “allege” that they have been dismissed. This means that there is no longer a jurisdictional barrier to commencing the General Protections claim if a dismissal has not occurred - provided a dismissal has simply been alleged.

The likely impact of this change is twofold: 

1. First, the Commission will be empowered to list any General Protections claims alleging dismissal (even where there are jurisdictional objections) for settlement conferences. 
2. Second, if the matters do not resolve, it appears the FWC will be able to issue certificates certifying that the matter has not resolved, leaving the jurisdictional question regarding whether the worker was an employee or was dismissed as a matter to be determined in either the Federal Circuit Court or Federal Court, if the matter proceeds to the next stage of Court proceedings. That is, the FWC will no longer be required to arbitrate these jurisdictional objections.

The change will likely be welcomed by the FWC, whose President, Justice Hatcher, has recently publicly spoken about increased workloads generated using AI, including increases in General Protections proceedings involving jurisdictional objections.

However, the changes do mean that, where a matter does not resolve, the employer will not be able to have the application dismissed on jurisdictional grounds early in the process. A jurisdictional objection is now likely to only be dealt with once the matter proceeds to Court. 

Increased access to unfair termination provisions in FW Act for regulated road transport contractors

The previous Closing Loopholes reforms to the FW Act introduced ‘unfair dismissal rights’ for regulated road transport contractors, commonly referred to as ‘owner drivers’. 
  
As a reminder, Regulated Road Transport Contractors are workers (not employees) who are either: 

1. an individual who is party to a services contract with a principal; 
2. if a body corporate (i.e., Pty Ltd company) is the party to the services contract, an individual who is a director of the body corporate and/or family members of a director and who perform work under the contract; 
3. if a trustee is a party to a services contract in their capacity as a trustee, an individual who is a trustee of the same trust and performs work under the contract; or 
4. if a partner in a partnership is party to a services contract, an individual who is a partner in the same partnership and performs work under the contract. 

Presently, these owner drivers can bring a claim in the Fair Work Commission seeking relief from an unfair contract termination if their rate of earnings over the course of the year does not exceed the “contractor high income threshold” - which is currently $183,100 per annum.

The Bill proposes to change this threshold and introduce a new “road contractor high income threshold” that will be determined by Regulation.

The Explanatory Memorandum to the Bill explains that the purpose of this new road contractor high income threshold is to provide an increased threshold before owner drivers are disentitled from making unfair termination claims, acknowledging that these drivers often earn higher than $183,100 per annum in order to pay for their considerable operating costs. By way of example, owner drivers commonly bear the cost of financing a vehicle, maintaining the vehicle, paying for fuel and so on. As a result, the Bill appears to presume that to provide effective access to the unfair termination regime, the threshold of earnings that should apply, before these owner drivers are prevented from brining unfair termination claims, should be increased.

This will also have the effect of increasing the amount of compensation available as the compensation cap for owner drivers is set at half the yearly earnings of the contractor high income threshold (ie. six months pay). This will now become half the yearly earnings of the road transport contract high income threshold. 

No indication is provided as to what remuneration level the new road contractor high income threshold will be set at.

Frivolous and vexatious claimants

Where the FWC has dismissed an application on the basis that the application is frivolous or vexatious, or has no reasonable prospect of success, a new provision will be inserted into the FW Act to enable the FWC to order that the applicant must not make any further application of that kind to the FWC, without the permission of a presidential member of the FWC.

This is designed to minimise the prospects of repeat litigations being commenced by vexatious litigants or those litigants whose claims have no reasonable prospects of success.

Determining unfair dismissal matters on the papers

The Bill introduces two new provisions into the FW Act, which would permit the FWC to determine unfair dismissal, unfair termination and unfair deactivation applications on the papers, provided that:

• it appears to the FWC that the matter can adequately be determined in the absence of the parties; and
• the parties consent to the matter being determined without holding a conference or conducting a hearing.

Supported bargaining authorisation

The Bill introduces a new obligation on the FWC to make supported bargaining authorisations in relation to multi-employer bargaining that commences within two years of the nominal expiry date of an enterprise agreement that was made under a previous supported bargaining authorisation.

Specifically, the Commission must make the supported bargaining authorisation if: 

1. an application has been made by a union who was a bargaining representative of the earlier enterprise agreement and the application was made no earlier than three months before the nominal expiry date of the earlier agreement; and
2. the application is made no later than two years after the nominal expiry date of the earlier agreement; and
3. the supported bargaining authorisation must only include the same or substantially the same employers and employees as the earlier supported bargaining agreement.

These changes will make it harder for employers to remove themselves from supported bargaining processes once they have entered this stream of multi-enterprise bargaining.

However, the changes: 

1. do not override section 243 of the FW Act, which prevents a supported bargaining authorisation being made where a single enterprise agreement has commenced operation in relation to the relevant workforce; and
2. provide that an employer can apply to be exempted from the new supported bargaining authorisation if it would not be “appropriate” for them to be specified in the authorisation due to a change in the employer’s circumstances. 

Where to go for further advice  

The changes have not yet been passed into law. However, given the Government’s history of securing majorities in the Senate with the Greens and cross-bench on industrial relations matters, it appears likely the proposed reforms will pass in a manner similar to that proposed in the Bill.

ABLA will continue to provide updates once the reforms are passed.

Our team are available to answer any queries this article may raise – please get in touch.