Recent Developments in Bargaining

The amendments made by the Secure Jobs, Better Pay and Closing Loopholes legislation to the Fair Work Act 2009 (FW Act) continue to impact employers, with the significance of those amendments becoming more apparent as they come before the Fair Work Commission (Commission) and the Federal Court for consideration. 

This article looks at three recent developments in the area of industrial relations, including:

• The impact of single interest employer authorisations where that authorisation has been appealed by the employer Chemist Warehouse;
• New delegates rights terms in awards brought about by the Full Federal Court’s decision in CFMEU v AIG; and
• The ability of the Commission to unilaterally amend enterprise agreements at the approval stage, as seen in a recent decision involving ALDI.

Single Interest Employer Authorisations—Chemist Warehouse

The Commission decided not to grant Chemist Warehouse a stay of the single interest bargaining authorisation granted to cover six Chemist Warehouse franchisees across Adelaide in December 2025 despite the authorisation decision currently being the subject of an appeal by Chemist Warehouse. 

On 2 December 2025, the Commission granted a single interest bargaining authorisation to the Shop, Distributive & Allied Employees' Association (SDA) in respect of six Chemist Warehouse franchisee operators in South Australia and their employees within nominated classifications under the Pharmacy Industry Award 2020, over the objections of those employers. The effect of the authorisation is that each of the nominated franchisee employers, linked by their commonality under the Chemist Warehouse brand, are now required to bargain with the SDA in respect of one enterprise agreement, which would apply to each of them jointly. 

On 19 December 2025, Chemist Warehouse filed a notice appealing the decision to grant the authorisation and requesting a stay of the authorisation made so as to prevent the SDA from relying on the authorisation until its appeal was determined. On 7 January 2025, the Commission rejected the stay application. 

The Commission reasoned that granting the stay could delay enterprise bargaining for months. In circumstances where the authorisation made only lasts for one year, and the uncertainty of whether the authorisation would be renewed even on application by the SDA, the Commission deemed a stay too prejudicial against the SDA and the employees it represents. 

The Commission determined that allowing a delay of this magnitude would risk undermining the purpose of the authorisation, which is ultimately to assist employees bargain more effectively by coordinating negotiations across similar businesses. The Commission said: 

Accordingly, if a stay is granted, a substantial proportion of the period of operation of the authorisation is likely to be lost before the appeal can be determined. The SDA would be deprived of a substantial part of the outcome it has achieved … The prospects of the SDA achieving a multi-employer agreement will be at least harmed, and perhaps extinguished. 

Notably, the SDA on behalf of the franchisee employees undertook not to engage in protected industrial action until the resolution of the appeal. The Commission found that this removed an element of potential prejudice to Chemist Warehouse in electing to refuse the stay application. 

Ultimately, the Commission’s decision means that bargaining between the six franchisees covered by the authorisation and Chemist Warehouse can proceed under the authorisation, notwithstanding the ongoing appeal into the decision to grant the authorisation. The effect of this is that each franchisee is required to participate in bargaining for the proposed multi-employer agreement and, in doing so, must comply with the good faith bargaining obligations in the FW Act. The Commission’s decision places the efficiency and efficacy of the bargaining process at the centre and shows in this case that if a single interest employer authorisation is made, bargaining may proceed even while the authorisation is being appealed. 

Delegates Rights Clauses Amended in All Modern Awards

The Closing Loopholes legislation introduced delegates rights into section 350A of the FW Act and included a requirement for all modern awards and enterprise agreements to contain a “delegates rights” term reflecting those rights. The Commission amended all awards to contain such a term on 28 June 2024. 

Recently, these amendments have been examined by the Full Court of the Federal Court in the case of Construction, Forestry and Maritime Employees Union v Australian Industry Group [2025] FCAFC 187. On 17 December 2025, the Full Court handed down its decision to quash the terms inserted by the Commission in nine modern awards. 

The Full Court found that in making the delegates’ rights terms, the Full Bench of the Commission had gone beyond the powers conferred on it in three respects:

1. The Commission confined the scope of the workplace delegates to represent members and eligible members only if they were employed directly by the employer of the delegate. The wording of the FW Act was not so confined. Accordingly, the workplace delegate must be entitled to represent the industrial interests of all members and eligible members who work in the enterprise or regulated business in which a delegate works, even if they are not employees of the same employer as the delegate. 
2. The Commission confined the rights of delegates to communicate for “the purpose of representing” the industrial interests of members and eligible members. The wording of section 350(3) is that delegates can communicate with those persons “in relation to” those industrial interests. The Full Court found that the terms need to adhere with the wording of the legislation, which has a wider scope. 
3. The wording of the clauses limited the scope of the delegates’ rights because those rights were subject to an obligation that the delegate comply with their duties and obligations as an employee, and were not to hinder, obstruct, or prevent the normal performance of work, regardless of whether doing so was in the course of the reasonable exercise of the delegates’ rights provided by the clause. The Full Court held that if such a clause is to be included at all, it should ensure the delegates’ rights can be exercised in a way inconsistent with the obligation not to obstruct the work only where the delegate is reasonably exercising their rights. To put it another way, a delegate is not required to comply with their duties and obligations as an employee, and can hinder, obstruct, or prevent the normal performance of work, if they are doing so in the reasonable exercise of their delegates’ rights.

The effect of the Full Court decision was that nine awards were found to not have a delegates’ rights clause, and the clauses contained in the remaining 146 award may not be valid. 

In response to the decision, on 23 January 2026, the Full Bench amended all awards to include a valid delegates rights term, which has been backdated to have effect from 1 July 2024 in light of the exceptional circumstances.

This decision does not just affect award-covered employees. Since the introduction of these clauses, all enterprise agreements have been required to have a delegates’ rights term that is not less favourable than the terms of the underlying modern award(s). If the agreement clause is less favourable, the legislation provides that the agreement clause will have no effect and the underlying award term is taken to be incorporated into the agreement. As a result of this, the Commission has had to carefully consider this issue when approving agreements since the start of 2026. 

The full effect of this decision is yet to be seen; however, employers should be aware of the following points:

• The Commission may exercise greater scrutiny of the delegates’ rights term during the agreement approval process.
• The new award terms have effect retrospectively from 1 July 2024 for any award-covered employees.
• Existing agreements made since 1 July 2024 that incorporated the old award term might automatically be taken to incorporate the new term, depending on the drafting of the agreement.
• Employers are required to act in a manner consistent with the delegates’ rights contained in s 350A (as found by the Full Federal Court), even if the applicable award or agreement term is narrower. 
• The scope of a delegate’s rights extends to workers in the same workplace even if those workers are not employed by the same employer.
• If delegates are reasonably exercising their rights, they are not bound by their ordinary duties and obligations as an employee and may hinder or obstruct the performance of work.

The Commission Tests s 191A Unilateral Amendment Power in ALDI Agreements

On 2 January 2026, the Commission exercised a rarely used power under s 191A of the FW Act to unilaterally amend three ALDI warehousing agreements, only after rewriting key provisions to require ALDI to guarantee fixed rosters for part-time employees.

The decision relied on a legislative power introduced as part of the 2022 industrial relations reforms, which allows the Commission to approve an enterprise agreement that does not pass the “better off overall test” (BOOT) by specifying amendments necessary to remedy identified deficiencies. This mechanism has seen limited consideration to date. This power is distinct from the commonly used undertaking provisions, where employers agree to amendments to enable a proposed agreement to pass the BOOT. Deputy President Slevin had earlier considered his concern could be addressed by an undertaking requiring employees to agree with ALDI on a regular pattern of work and invited ALDI to make such an undertaking, but ALDI refused to provide such an undertaking.

Although the agreements were approved by employee vote and provided pay rates exceeding those in the relevant modern award, the Commission concluded that they failed the BOOT in respect of part-time employees. The Commission’s key concerns were the absence of guaranteed minimum hours, highly variable rostering practices, and the lack of fixed start and finish times. The Commission found that these features undermined employees’ capacity to plan their personal lives and meant that, despite higher hourly pay, some part-time employees were worse off overall. 

The employer did not agree to the amendments sought by the Commission arguing that any detrimental aspects of the agreements were compensated for by the higher rate of pay. The Commission nevertheless determined to make the amendments. ALDI has lodged an appeal to this decision pursuant to s 604 of the FW Act.

The Commission’s approach favoured a broad construction of its power under s 191A, and signals a greater willingness by the Commission to intervene directly in the content of agreements to ensure statutory protections are met. 

Unpredictable hours and insecure rostering arrangements, particularly for part-time employees, are an area where the Commission has increased its scrutiny when conducting BOOT assessments. This scrutiny seems likely to continue, and perhaps intensify, going forward.

The decision underscores the Commission’s readiness to step in where enterprise agreements fail to deliver genuine and practical benefits, even where headline pay rates are attractive. This means that employers need to pay attention not just to the rates they are offering but also focus on how agreement terms operate in practice, especially in relation to job security and certainty of work.

The authors acknowledge the assistance of Sacha Bolton, graduate, in the preparation of this article.