FAIR WORK COMMISSION Matter No.s AM2024/6 and AM2025/28Re Variation of modern awards to include a delegates’ rights term Re Variation of delegates’ rights term in modern awards

Submissions of the Australian Council of Trade Unions

Introduction

The ACTU makes these submissions pursuant to the Statement and Direction (“the Full Bench’s Statement”) of the Full Bench of 23 December 2025. The Full Bench’s Statement concerned the recent Full Federal Court decision to make orders quashing determinations made by an earlier, differently constituted, Full Bench of the Fair Work Commission (“the Initial Full Bench”) to vary 9 modern awards to include a delegates’ rights term: Construction, Forestry and Maritime Employees Union v Australian Industry Group [2025] FCAFC 187 (“the Delegates’ Rights Decision”). In the Full Bench’s Statement, the Fair Work Commission (“the Commission”) has indicated a provisional view that it proposes to vary modern awards to include a new delegates’ rights term with an operative date of 1 July 2024. A copy of a draft variation is included in the Full Bench’s Statement.

The ACTU’s submissions address the scope and operation of the Commission’s powers to vary modern awards to include a delegates’ rights term, the appropriate operative date for such variations, and the content of the proposed standard term. In doing so, the ACTU responds to the Full Bench’s Statement and the issues arising from the Delegates’ Rights Decision. Our submissions also identify necessary amendments to the proposed draft delegates’ rights term to ensure compliance with the legislative scheme and the Federal Court’s reasoning, while supporting the Commission’s provisional approach to the urgent and effective implementation of these rights across all relevant modern awards.

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