This is an Australian industry group podcast. Hello. In this podcast, we'll be discussing significant workplace relations issues for the period January to March, 2026. This podcast is referring to our member-only report, The Significant Workplace Relations Issues Report, which is available on our website at austrianindustgroup.com.au In the news section under reports, once you get to that page, you need to select the topic workplace relations.
With me today is Brent Ferguson, Australian industry groups head of National Workplace Relations Policy, High-Brent. Hi, yes. I'm your next Blackmore, Principal Advisor in Brent's team. The Significant Workplace Relations Issues Report, which we are talking about today, covers a raft of materials for members.
In this podcast, we'll focus on three key issues of note. Firstly, and unsurprisingly, we'll talk about fuel. Second, we'll talk about the government's initiated review into the operation and adequacy of the national employment standards. Last, we'll cover the legislative review of the closing loopholes changes to the Fair Work Act that largely commenced over the last two years.
And without further ado, Brent, can you tell us about fuel? Yeah, happy to, yes. I think the first thing to just flag for members is there is a push from the Transport Workers Union and a Road Transport Employer Association to commence a merchant proceedings in the Fair Work Commission, which are designed to provide some sort of relief for road transport businesses and also contract drivers from increasing fuel prices. Just by way of a little context, of course, members will remember that during the last term of parliament, the government successfully pushed through some amendments to the Fair Work Act, which gave the Fair Work Commission some pretty radical new powers to set minimum terms and conditions for contract drivers and, of course, also to regulate entire supply chains in the road transport industry.
So to regulate commercial arrangements between businesses. Now, the TWA was quick out of the gates to use those new powers in making applications for minimum standards orders and what's called road transport industry contractual chain orders. And effectively, they've actually sought seven different sets of orders. Now, without taking you through the detail of that, they propose a set minimum rate to pay for gig workers, particularly in food delivery sector, but also for road transport contractors.
And they also propose a set contractual chain orders dealing with things like payment terms of how regular road transport business or road transport contractors pay. And they also propose a deal with obligations to review contractor rates of pay. Now, those proceedings are working their way through the commission and we've got hearing scheduled throughout this year, but on the weekend, the transport workers union and this association wrote to the president of the commission, effectively asking for urgent proceedings to be convened to facilitate discussions between industry participants about what measures can be introduced effectively, as I said, cis parties in relation to rising fuel costs. Now, in response, the commission convened an urgent hearing or directions hearing that was held last Wednesday on the 18th.
That essentially was grappling with what utility is there in convening this conference and who should be made attend. The TWA was asked for some 90-year parties to be directed to attend. Now, one of the big issues in these proceedings is the fact that under the new legislation, the Fair Work Commission can't actually issue any of these orders unless they've been published and available for consultation for a period of at least six months to enable effectively engagement from industry in relation to those issues. And that was a safeguard that was put into the legislation.
So one of the issues that's looming large is what is the utility of convening these sort of discussions if the commission can't actually do anything. So we've had that debate yesterday. We're waiting for a commission decision now on whether it will convene conferences to deal with this or not. If they do, we've said we will certainly participate in this issue.
It will be a big matter of interest for the supply chain and for road transport businesses. I think the thing I'd flag as well is some associations have made it clear that they will push the federal government potentially to amend the legislation to give the Fair Work Commission new powers to urgently deal with this fuel issue. So I think this is going to be an emerging issue. It's going to be a significant issue for industry in the period ahead.
And so what's being thought then is essentially that there'd be some flexibility in the arrangements to compensate for the increase costs. Well, look, this is one of the big issues. Frankly, the TWA and this association haven't actually advanced any coherent proposal to deal with this. They've just been making the point, essentially, that road transport businesses and contract drivers can't be left to just bear the burden of any increased costs without the supply chain participants also providing some relief in relation to those issues.
Now, that is a well-ventilated point, but the real difficulty is what precisely do you do to address this issue, because there, of course, are a myriad of arrangements in play in the industry. There isn't a simple one-size-fits-fits or answer to this. And of course, in practice, many in the industry are already working through this on the ground. So there's no clear proposal from the TWA.
They've essentially said they want the Commission to convene a discussion between the industry participants to see whether an issue can be identified or an outcome can be identified. Now, we've made the point that it's unlikely that discussions involving 90 odd parties are likely to be particularly productive and that parties shouldn't be compelled to participate in this. But for our part, we've said we are very open to engaging in constructive discussions with the Commission, my order, or in any event in discussions with the TWA. And we're certainly already working through these sorts of issues with a number of members and with the union.
Yeah, because I guess it's easy just to think it's all about the truck drivers, but everyone uses transport as part of their supply chain. So, of course, and the uncertainty around fuel issues at the moment that everyone knows about and increases prices are placing pressures all across the industry. And that is something that needs to be worked through. I think it's optimistic to suggest that an answer can be necessarily quickly reached in discussions.
It should be borne in mind that we've been in confidential discussions with the TWA for most of last year, around these draft orders that they've sought applications for, and we weren't able to reach any consensus around changes. So, this has got some time to play out, but even if it's going to be done, it'll obviously need to be done urgently. But as I said, as it stands, there are real technical barriers to the Fair Work Commission doing anything meaningful. Okay, well, it's going to be obviously keeping it busy.
Then the second thing that we're going to talk about is the review of the National Employment Standards at the minimum entitlements for employees. Can you tell us a bit about what we've said there? Yeah, look, there is at the moment a House of Reps review international employment standards underway. And it's actually, if you look at the terms of reference, it's quite a wide-ranging review into the NES, going to matters abroad as the adequacy of the National Employment Standards.
Now, there's been a very significant number of submissions filed. I think I looked at the website and saw something like 114 submissions have been filed. For our part, we are arguing that this shouldn't be a catalyst for a major change in the National Employment Standards in terms of any radical expansion of entitlements or diminution of entitlements. But we say, saying it is an opportunity for a sensible consideration of what changes can be made to address known technical problems or other elements that demonstrate having demonstrated to be problematic.
And in that context, we've proposed a significant number of changes, but there's sensible modus proposals. Especially we've proposed 35 different changes to the National Employment Standards. And look, the report sets all of those out of detail. I won't go through them, but we've raised things like the need to start to tackle our patchwork of different long-service life entitlements.
And we've said there should be some progress made on harmonising those entitlements. But the important point we've pressed is that that shouldn't just be a levelling up to the most generous or onerous provisions from each state. We would like to see a fair and balanced approach to try and get a simplified system if possible. Other issues that we think should be addressed include, for example, a clear problem in the National Employment Standards relating to termination of employment.
There is this very archaic provision in the legislation at the moment that says you're as an employer prohibited from terminating an employee until you've paid out there, noticed in lieu, effectively their final payments under the NES. Now, that made a lot of sense when people were paid in cash and you were given as an employee your final payout on your last working day, but it doesn't accord with modern practices where people tend to just want to pay employees out in the next pay cycle by way of electronic funds transfer. I mean, I know most workers want to get paid that way. So we've said that that should be fixed.
And what I must say, we've also written to the Minister some time ago, just late last year saying there's a sensible change that should be made in this regard. But there are various other issues we've targeted with said, for example, rules around public holidays need to be updated to give employers clear capacity to require people to work on public holidays, not an absolute capacity, but a clear ability to require them to. We've also said the patchwork of confusing and somewhat problematic provisions in awards around annual leave should be addressed by putting a simpler comprehensive articulation of leave entitlements in the National Employment Standards. You know, that updates rules around, for example, implementing shutdowns, which at the moment aren't appropriately dealt with in modern awards.
But I might say we're not arguing for any inability to deal with these issues through agreements. We think that should still be possible, but surely we can have a much simpler system of rules around things like annual leave that's uniform across the system. So there's 35 issues we've raised. It's worth worth members going through and having a look at that submission.
And I think the unions have used this as an opportunity to try and get a little bit more. Well, of course, you know, I would characterize out proposes all sensible, modest changes, largely addressing technical problems, but they have been, I think it's a much more ambitious in their shopping list of issues they want to address. Probably not quite as many issues, but some of them are very significant matters. For example, they've got claims for new entitlements to reproductive leave claims for new entitlements to well expanded annual leave.
So for example, extra week of annual leave or for casual, a higher casual loading in compensation for not getting that extra leave. They're also wanting to reduce working hours. They're saying in a first step towards the implementation of a four day week, for example, we should move away from a 38 hour week to a 35 hour week. The list goes on, but obviously that would have very significant ramifications for Australian employees, particularly at the moment where we're experiencing an extremely tight labor market.
And we know that employees are grappling with labor shortages across a raft of industries. And I imagine that's pretty hard to be increasing productivity if you are working less. Well, that's one of the big challenges. But yes, when you speak to employees, the consistent message is one of the biggest challenges is actually just getting labor.
So the last thing we need at the moment, in that respect, is having less available working hours. Thanks, Brent. That's very instructive. And then lastly, I guess we have what I would describe as the auspiciously named closing loopholes, Chances of Legislation.
What can you tell us about that and its potential consequences? Look, I think members will recall the closing loopholes legislation was that third tranche of very controversial changes to workplace walls that were pushed through Parliament by the government during its last term. And of course, that dealt with really significant matters, such as the definition of who is an employee, who is a casual employee, the new changes to, it's called regulated labor high arrangement, which was previously granted as, yeah, yeah, but that was previously granted the same job, same pay policy. And then there was that really unfair change to intractable bargaining as well.
We've put in a very detailed submission to this. Our view is that many of these changes were never justified and obviously problematic. But beyond that headline objection, a lot of these amendments were pushed through in a pretty brutal manner when the government got the numbers in the Senate. And in some instances, there were no problems that were not properly addressed in the drafting.
So we've put in a detailed submission that calls out the deficiencies in the legislation and objects to the problematic elements that should never have been there, but also seeks to constructively identify changes that could be made to the legislation to address some of these emerging and some instances of anticipated problems, particularly around, for example, regulated labor high arrangement or that same job, same pay policy. We're seeing that start to work its way through the commission. And we know it's having a problem in schools and problems in practice. I won't take you through the detail, but we've got some sensible amendments on how the worst aspects of that legislation could be rectified.
We are, you'd mentioned intractable bargaining. I think we've been particularly strong on our submission that the changes to intractable bargaining were just obviously unfair to employers. And that change essentially was the change that said, if you get involved in intractable bargaining dispute, and that's a dispute that that's the commission arbitrate, the outcome, when you can't reach agreement in enterprise bargaining, essentially after nine months of bargaining, that the only outcome that they can arbitrate is one that is no less favorable to employees or unions on a line-by-line basis when compared to the current agreement. Obviously that's unfair.
The initial policy of the government was that the commission could arbitrate those things and have a free hand. We didn't support that policy, but if you're going to have that approach, then obviously the commission, then depending on the prior, should have a free hand to determine the outcome. But that was undone by amendments and the closing with poll changes. So we've been particularly, I suppose, gazing in our assessment of the unfairness of that.
Well, because I imagine it is a great difficulty where it's much harder to terminate an enterprise agreement, and then you have to have it as no longer fits the business, and then you can't actually have that flexibility to achieve changes beyond the existence. Well, that's what members are telling us. The big problem is this. When it was in the first transfer changes, the secure job was a bit of pay changes.
The government restricted access to make applications to the fair work commission to have enterprise agreements terminated. Now, we know there were very few of those applications ever granted, contested context, but that possibility was really a catalyst for parties trying to reach agreement on changes to agreement. So if you have an outdated enterprise agreement, because your operating environment has changed, which in so many industries is the reality in Australia, that created a catalyst for both parties to try and reach agreement. Now, I think the policy intent behind that change and the intractable bargaining change was that instead of letting parties just sort of battle it out through agreement or through that supposed nuclear test of having the agreement potentially terminated, they can instead go to the commission if they couldn't reach agreement and get a decision from the independent empire.
The problem is that that policy objective has been entirely undermined by the closing lip holes changes, because the closing lip holes changes, which were a result of an amendment from the Greens, basically say that only one site can effectively get the outcome. And really that means employers have no meaningful path to modernising enterprise agreements, unless they can get unions and workers to agree to that. And many people are saying that at the bargaining table, the way that's playing out is that it changes the bargaining dynamics. Unions have every incentive to just stick to their guns on claims rather than being reasonable.
This has got a long way to play out before we see the full consequences of it, but many in the industry are just, I suppose, dismayed at the prospects of lack of prospects of ever getting any meaningful changes to improve their agreements, improve productivity. Okay, thanks, Brandon. I know that we'll probably be able to comment on the draft report and hopefully there will be further reviews. Yeah, the terms of reference will require the reviewer to release a draft report, and then we'll have an opportunity to comment on that.
And I must say, we've already met repeatedly with the reviewer to express our views beyond what we've put in that submission. So, Member Land, make sure you're reaching out and letting us know your concerns. So, to bring it to conclusion then, today we've covered off on the three key issues of interest for our members, but I think, Brent, there is a lot more to read in the report, isn't there? There's an extensive amount happening, there seems to always be an extensive amount happening in the workplace relations sphere, but the report goes through and it does cover up all the major developments.
I think the flag for members as well, it's a lengthy detailed report, there is a very useful executive summary. And a table of contents of the links to help. Which gives you a snapshot of what's there, and then you can of course drill down on what's relevant. And just to repeat your point, we would try to appreciate hearing from members about any of these issues that are covered in the report and that will of course inform our advocacy to government and to the Commission and so forth.
Okay, thanks Brent. Let's wrap it up here. So, thank you very much Brent Ferguson, our head of National Workplace Relations Policy and members, just to remind you, you can find the members only significant workplace relations issues report covering all the key workplace relations issues for the past two months at AustralianIndistyGroup.com.au, and that's all for now. So see you next time.
Thanks for everyone. Thanks.