Fair Work Commission Amendment (2026 Measures No. 1) Rules 2026

Fair Work Commission Amendment (2026 Measures No. 1) Rules 2026

explanatory Statement

(issued by the authority of the President of the Fair Work Commission)

Authority

The Fair Work Commission Rules 2024 (the Rules) are the procedural rules of the Fair Work Commission (the Commission or the FWC).

Section 609 of the Fair Work Act 2009 (the Act) authorises the making of procedural rules of the FWC.  Under subsection 609(1) of the Act, after consulting with the other FWC Members, the President of the FWC (the President) may, by legislative instrument, make procedural rules in relation to:

Subsection 609(2) of the Act provides that without limiting subsection 609(1), the procedural rules may provide for:

In addition to the general power to make procedural rules under section 609 of the Act, the Act provides more specifically for some rules.  For example, paragraph 185(2)(b) of the Act requires that an application to the FWC for approval of an enterprise agreement be accompanied by ‘any declarations that are required by the procedural rules to accompany the application’.  In the Rules, where a rule or subrule is made for the purposes of a specific provision of the Act, this is stated in a note under the rule or subrule.

Subsection 33(3) of the Acts Interpretation Act 1901 as in force on 25 June 2009, relevantly provides that where an Act confers a power to make an instrument, the power will, unless the contrary intention appears, be construed as including a power exercisable in the like manner and subject to the like conditions to repeal or vary the instrument.

Purpose and outline of the Amendment Rules

The FWC is Australia’s national workplace relations tribunal.  The FWC’s functions are set out in section 576 of the Act.

The Rules regulate the practice and procedure of the FWC.  In doing so they assist the FWC to perform its functions and exercise its powers under the Act and other legislation, in accordance with section 577 of the Act, in a manner that is:

In outline, the Fair Work Commission Amendment (2026 Measures No. 1) Rules 2026 (the Amendment Rules) amend the Rules to:

Details of the Amendment Rules

Details of the Amendment Rules are in Attachment A.

Consultation on the Amendment Rules

As required by section 609 of the Act, the President of the FWC consulted with the other Members of the FWC concerning the Amendment Rules.  Pursuant to section 17 of the Legislation Act 2003 (Cth), the President also gave persons who were likely to be affected by the Amendment Rules an opportunity to comment.

On 18 June 2026, the President sent a draft of the Amendment Rules to all other Members of the FWC and to the FWC’s Rules and Benchbook Committee, inviting comments by 1 July 2026.  The Rules and Benchbook Committee comprises 5 Members of the FWC and 5 representatives of FWC stakeholders (presently the Law Council of Australia, Job Watch, the Australian Council of Trade Unions, Australian Business Lawyers & Advisors and Ai Group).

Also on 18 June 2026, the President published a draft of the Amendment Rules on the FWC’s website and advised subscribers to the FWC’s general announcements subscription service of the publication.  Interested persons were invited to provide comments by 1 July 2026.

In finalising the Amendment Rules, consideration has been given to all comments received during the consultation.

The President is satisfied that the consultation undertaken was appropriate, having drawn on the knowledge of persons with expertise in fields that are relevant to the Amendment Rules and having ensured that persons who were likely to be affected by the Amendment Rules had an adequate opportunity to comment.

Impact Analysis

As required by the Australian Government’s best practice regulation requirements, the Office of Impact Analysis was consulted in June 2026 as to whether an impact analysis in respect of the Amendment Rules was required.

The Office of Impact Assessment advised that, based on the information provided, a detailed impact analysis was not required.  This was informed by the understanding that the Amendment Rules are machinery in nature and do not represent a significant difference from the status quo, based on the likely costs or benefits per annum to Australian businesses, community organisations and/or individuals (reference number OIA26-11844).

Statement of compatibility with human rights

Subsection 9(1) of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) requires the rule-maker in relation to a legislative instrument to which section 42 (disallowance) of the Legislation Act 2003 applies, to cause a statement of compatibility to be prepared in respect of that legislative instrument.

A statement of compatibility is at Attachment B.

Details of the Fair Work Commission Amendment (2026 Measures No. 1) Rules 2026

Rule 1—Name

Rule 1 provides that the name of the amending instrument is the Fair Work Commission Amendment (2026 Measures No.1) Rules 2026.

Rule 2—Commencement

Rule 2 provides that the Amendment Rules commence on the later of the day after they are registered and 31 July 2026.

Rule 3—Authority

Rule 3 notes that the Amendment Rules are made under section 609 of the Act.

Rule 4—Schedules

Rule 4 provides that the Rules are amended as set out the items in a Schedule to the Amendment Rules and that any other item in a Schedule has effect according to its terms.

Schedule 1—Amendments

Part 1—Main amendments

Item 1

Item 1 inserts into rule 5 of the Rules, definitions of:

The 2 applications mentioned above were introduced by the Closing Loopholes No.2 Act 2024.

The definition of ‘general protections dismissal application’ is introduced for convenience and is the commonly used name of an application under section 365 of the Act (also referred to in the Act as a ‘general protections FWC application’).

Lodgment of documents using the ‘MyFWC electronic lodgment facilities’ is provided for in item 13.

The definition of ‘person’ is added for clarity.  The definition is consistent with the meaning given to the term in the Acts Interpretation Act 1901 (Cth).

Items 2, 9, 10, 12, 24, 29

Items 2, 9, 10, 12 (new Note 1), 24 and 29 update the date references in various notes in the Rules, from ‘2024’ to ‘2026’.

Item 3

Item 3 updates Note 3 under rule 10(2) to include references to further subregulations in the Fair Work Regulations 2009 that provide for refund of application fees.

Items 4, 7

Items 4 and 7 amend the wording of rules 13(2)(a) and 13(2)(b) for clarity.

Items 5, 6

The Closing Loopholes No.2 Act introduced Parts 3A-2 (‘Minimum standards for regulated workers’) and 3B-2 (‘Minimum standards for persons in a road transport contractual chain’) into the Act.

Items 5 and 6 add matters arising under Part 3A-2 and Part 3B-2 of the Act to the list of matters in rule 13(2)(a).  Rule 13(2)(a) lists matters in which a person may be represented by lawyer or paid agent participating in a conference or hearing, without first obtaining the permission of the FWC.

The matters listed in rule 13(2)(a) are ones in which, typically, representation by a lawyer or paid agent will enable the matter to be dealt with more efficiently and not raise issues of fairness as between parties.

Item 8

Item 8 adds to rule 15(2) a further method of lodging certain documents with the FWC.  This further method is lodgment using the MyFWC electronic lodgment facilities, as provided for in for in item 13.

Items 11, 12

Item 11 amends the wording of rule 17(1) to clarify that that the FWC’s online lodgment facilities may only be used to lodge certain documents.

To assist persons wishing to lodge applications with the FWC, item 12 inserts a new Note 2 under rule 17(1) which lists the types of applications that may presently be lodged using the FWC’s online lodgment facilities.  These types of applications are:

Applicants may also lodge supporting documents using the online lodgment facilities.

Items 13, 14

Item 13 introduces new rule 17A, which provides for a further method of lodging certain documents with the FWC.  This further method is lodgment using the MyFWC electronic lodgment facilities.

Under subrules 17A(2) and (3), a person may lodge document that is not an application by submitting it using the MyFWC electronic lodgment facilities (provided those facilities will accept submission of that kind of document).  The document is taken to be lodged when the FWC sends the person an email (generated by the facilities) confirming that the document has been submitted.

Under subrule 17A(4), an application that has been submitted using the MyFWC electronic lodgment facilities, is not taken to have been lodged with the FWC unless the General Manager of the Commission (the General Manager) sends the person who has submitted the application an email acknowledging that the application has been lodged with the FWC.  This provides an opportunity for Commission staff to check that essential information has been provided in the application, or to obtain further information from the applicant, before an application is taken to have been lodged.  Once the General Manager’s acknowledgment email is sent, the application is taken to have been lodged at the time it was submitted.

To assist persons wishing to lodge applications with the FWC, Note 2 under rule 17A(1) lists the types of applications that may presently be lodged using the MyFWC electronic lodgment facilities.  These are general protections dismissal applications and unfair dismissal applications.  Applicants may also lodge documents relating to their applications using the MyFWC electronic lodgment facilities and respondents to such applications may lodge their responses and related documents.

Subrule 17A(5) is to the same effect as existing subrule 17(3) (which relates to lodgment using the FWC’s online lodgment system).  A note under subrule 17A(5) observes that the subrule is an authorisation for the purposes of the Australian Privacy Principles.  In particular, subrule 17A(5) is directed to circumstances where an applicant saves a draft application through the MyFWC electronic lodgment facilities, but does not subsequently finalise the draft and lodge it with the FWC.  Such a draft application may include personal (and possibly sensitive) information about the user and about third parties.

While the facility to save a draft is provided to assist the user and the FWC would not usually access the information in the draft, saving a draft is likely to result in the FWC collecting the information in the draft for the purposes of the Privacy Act 1988 (Cth).  Where such a collection of information does occur, subrule 17A(5) ensures the collection is authorised for the purposes of the Australian Privacy Principles.  These arrangements are considered reasonable, necessary and proportionate to the aim of assisting users to make applications to the FWC.

Item 14 amends subrule 18(2) to provide for electronic signing of approved forms that are lodged using the MyFWC electronic lodgment facilities.

Item 15

Item 15 replaces rule 19 with a similar rule of broader application.  The purpose of the new rule is to facilitate a partnership satisfying a requirement under the Rules to lodge a document or take any other step, by way of any single partner, or an officer or employee or partnership, doing so.  This ensures the Rules are not read as requiring each partner separately to lodge the document or take the step.

The broader application of the new rule is intended to cover requirements that may apply to partnerships under new rules relating to the minimum standards for regulated workers which were introduced by the Closing Loopholes No.2 Act.

Item 16

Item 16 amends rule 23 so as to provide for the FWC to serve a document on a person, by sending the person an email that provides an electronic link to the document and explains that the document can be accessed through the electronic link.

The FWC may, for example, use this method of service when serving applications that were lodged using the MyFWC electronic lodgment facilities.

Items 17, 25

The Closing Loopholes No.2 Act introduced into the Act provision for an application to the FWC for a remedy for unfair deactivation (an application under section 536LU for an order under Subdivision A of Division 4 of Part 3A-3 of the Act) and an application to the FWC for a remedy for unfair termination (an application under section 536LU for an order under Subdivision B of Division 4 of Part 3A-3 of the Act).

Rule 69 provides for certain types of applications to be made to the FWC by telephone.  In effect, items 17 and 25 shift the telephone application rule from Part 7 of Chapter 2 of the Rules to a new Part 7 of Chapter 1 of the Rules (‘Other matters’) and amend the rule to:

Item 18

Item 18 corrects the numbering of the notes under subrule 41(2).

Items 19, 20

The Closing Loopholes Act introduced into the Act provision for applications to the FWC for regulated labour hire arrangement orders.

Items 19 and 20 respectively remove the ‘placeholder’ note under the heading to Part 4 of Chapter 2 of the Rules and insert a new rule 54.

Rule 54 requires a specified person who wishes to respond to an application under section 306E of the Act for a regulated labour hire arrangement order, to lodge their response to the application within 14 days after the day on which the person was served with the application or otherwise became aware of the application.  The specified persons are persons who are covered by the proposed order, employee organisations representing regulated employees covered by the proposed order, and any other person affected by the proposed order.

The response informs the FWC about the matter and so assists the FWC promptly to deal with the application.

Items 21–23

The Closing Loopholes No.2 Act introduced into the Act an employee right to disconnect.

Items 21–23 respectively add ‘employee right to disconnect’ to the heading of Part 6 of Chapter 2 of the Rules, insert a heading for Division 1 of Part 6, and insert a heading for Division 2 of Part 6 and a new rule 64A into Division 2.

Subrule 64A(1) requires a respondent to an application for the FWC to deal with a dispute about the employee right to disconnect (an application under section 333N(3) of the Act), to lodge a response to the application and any supporting documents within 7 days after the day on which the respondent was served with the application.

The response informs the FWC about the matter and so assists the FWC promptly to deal with the dispute.

Subrule 64A(2) requires the response to include details of any jurisdictional objection to the application that the respondent wants to raise.  This assists in alerting the FWC to any jurisdictional issue that may preclude the FWC dealing with the dispute (and so must be considered by the FWC at the outset).

Item 26

Item 26 amends the heading of rule 72, for consistency with the heading of new rule 96 (see item 28 below).

Items 27, 28

Items 27 and 28 respectively remove the ‘placeholder’ note under the heading to Part 11 of Chapter 2 of the Rules and insert new Division headings and rules into Part 11 of Chapter 2.

Unfair Deactivation

As noted earlier, the Closing Loopholes No.2 Act introduced into the Act provision for applications to the FWC for a remedy for unfair deactivation.

New subrule 89(1) requires a respondent to an application for an unfair deactivation remedy to lodge a response to the application within 7 days after the day on which the respondent was served with the application.

The response informs the FWC about the matter and so assists the FWC promptly to deal with the application.

Subrule 89(2) requires the response to include details of any jurisdictional objection to the application that the respondent wants to raise.  This assists in alerting the FWC to any jurisdictional issue that may preclude the FWC dealing with the application (and so must be considered by the FWC at the outset).

Unfair Termination

As noted earlier, the Closing Loopholes No.2 Act introduced into the Act provision for applications to the FWC for a remedy for unfair termination.

Similarly to rule 89, new rule 90 requires a respondent to an application for an unfair termination remedy to lodge a response to the application within 7 days after the day on which the respondent was served with the application, and requires the response to include details of any jurisdictional objection to the application that the respondent wants to raise.

Collective Agreements for Regulated Workers

The Closing Loopholes No.2 Act introduced into the Act provision for collective agreements for regulated workers.

New rule 91 specifies how a person is to give the FWC a consultation notice for a proposed collective agreement, if they are required under paragraph 536MM(1)(a) of the Act to give such a notice to the FWC.  The rule requires this to be done by lodging the consultation notice together with a form setting out information relating to the notice.

Sections 536MR(3), 536MT(3) and 536MV(3) of the Act require respectively that applications under sections 536MR (application to register a collective agreement) and 536MT (application for variation of a collective agreement), and notices to the FWC pursuant to section 536MV(2) (notice that a collective agreement has been terminated) be accompanied by certain declarations.  While the Act recognises that the Rules might require additional declarations to be lodged (see sections 536MR(4), 536MT(4) and 536MV(4)), it is not necessary for the Rules to do so as the substantive content of the approved Commission declaration forms reflects the content of the declarations required by the Act.

Similarly to existing rules 36 and 44 in relation to enterprise agreements, new rule 92 requires that documents lodged with an application to register or for variation of a collective agreement, must also be served with the application.  This assists in providing procedural fairness and in ensuring the FWC’s processes are open and transparent.

Unfair Contract Terms of Services Contracts

The Closing Loopholes No.2 Act introduced into the Act provision for applications to the FWC for a remedy for an unfair contract term of a services contract.

New rule 93 requires that an application for a remedy for an unfair contract term of a services contract (an application under section 536ND of the Act), be accompanied by a copy of the services contract.  This assists the FWC to deal with the application, as the services contract may not otherwise be available to the FWC.

Similarly to new rules 89 and 90, new rule 94 requires a respondent to an application for a remedy for an unfair contract term of a services contract, to lodge a response to the application (together with any supporting documents) within 7 days after the day on which the respondent was served with the application, and requires the response to include details of any jurisdictional objection to the application that the respondent wants to raise.

General Rules

Similarly to existing rule 71, new rule 95 provides that when the FWC serves a copy of an application for an unfair deactivation remedy, an application for an unfair termination remedy, or an application for an unfair contract term remedy, the FWC must exclude the part of the application that deals with the application fee.  This avoids the FWC unnecessarily disclosing personal information about the applicant.

Rule 95 also requires the FWC to serve with the application, copies of any documents that were lodged with the application.  This assists the FWC to inform itself about the application, assists in providing procedural fairness and assists in ensuring the FWC’s processes are open and transparent.

Similarly to existing rule 72, new rule 96 requires that any documents lodged with a response to an application for an unfair deactivation remedy, an application for an unfair termination remedy, or an application for an unfair contract term remedy, must also be served with the response.  This assists the FWC to inform itself about the application, assists in providing procedural fairness and assists in ensuring the FWC’s processes are open and transparent.

Item 30

Item 30 inserts a new rule 129A into the Rules.  The new rule deals with applications to the FWC, made under an Act or an instrument, for the FWC to review or hear an appeal against a decision made by a decision-maker other than the FWC, the President, the General Manager or a person exercising a delegation from the President or General Manager.

Rule 129A applies if the Act or instrument does not specify a time within which the review or appeal must be instituted.

Rule 129A is of similar effect to rule 58 of the former Fair Work Commission Rules 2013.  Because rule 58 was thought to be obsolete, no similar rule was included in the Rules when they were made in 2024.  However, since that time the FWC has received an application to which rule 58 would have applied.

Rule 129A requires that such an application be made to the FWC using the FWC’s non-specific application form and that it be made within 21 days after the date of the decision concerned, or within such further time as allowed by the FWC.  This time limit assists in providing certainty of outcome to the parties to a decision that may be reviewed by or appealed to the FWC.

Items 31–34

Schedule 1 to the Rules contains instructions for service of Commission forms.

Items 31–34 make changes to the entries in Schedule 1 to the Rules in respect of the Commission’s forms F8 and F8A.

Items 31 and 33 update the entries with the new names of the forms F8 (‘General protections dismissal application’) and F8A (‘Response to a general protections dismissal application’) (see also item 1 above).

Items 32 and 34 correct the service requirements for the 2 forms, recognising that there may be multiple respondents to a general protections dismissal application.

Items 35–43

Items 35–43 make corrections to the form titles and other details of the entries in Schedule 1 to the Rules, in respect of the Commission’s forms F23C, F46, F82A, F82B, F83A and F83B.

Item 44

Item 44 adds to Schedule 1 to the Rules instructions for service of a range of Commission approved forms.  These forms were introduced by the FWC to facilitate lodgment of new types of applications, responses to applications, declarations and other documents so as to implement the FWC’s new functions under the Closing Loopholes Act and the Closing Loopholes No.2 Act.

Schedule 1—Amendments

Part 2—Applications for approval of enterprise agreements

Items 45–53

Items 45–53 make changes to the rules relating to the documents that must accompany an application to the FWC for approval of an enterprise agreement.

Item 45 inserts into existing rule 5 a definition to the effect that a document is in an ‘original document format,’ if the document is an electronic document and is in a format that was created by, or exported from, word processing software.

The note under the new definition observes that examples of documents in an original document format are documents in Word or RTF format, and PDF documents created by or exported from word processing software (but not PDF documents created by scanning documents in hard copy form).

As observed in notes under existing rules 32–34, section 185(2)(a) of the Act requires an application for approval of an enterprise agreement under section 185 of the Act to be accompanied by a signed copy of the agreement, and section 185A(a) of the Act requires an application for approval of an enterprise agreement under section 182(4) of the Act to be accompanied by a copy of the agreement.

Items 48, 49 and 52 amend respectively rules 32, 33 and 34 by requiring an application for approval of an enterprise agreement to be accompanied by a copy of the agreement (the ‘original digital copy’) that:

The amendments to rules 32, 33 and 34 also make clear that the original digital copy may be the same document as the copy of the agreement that accompanies the application for the purposes of section 185(2)(a) or 185A(a) of the Act.  That might be the case for example, if the signed copy had been signed digitally and was in an original document format.  If that was the case, the application would only need to be accompanied by the signed copy of the agreement.

Lodgment of an original digital copy of the enterprise agreement will assist the FWC promptly to deal with the application for approval of the agreement, including because such a copy is machine readable.

Item 46 makes a consequential change to existing rule 16(2)(a), which specifies the formats in which documents may be lodged by email.

Item 47 makes a minor change to Note 1 under rule 32(1) for consistency, and items 50, 51 and 53 reorganise the notes in rule 34, for consistency with the notes in rules 32 and 33.

Schedule 1—Amendments

Part 3—Application provisions

Item 54

Item 54 sets out application provisions for the amendments to the Rules.

Generally, the application provisions are to the effect that the amendments apply to FWC proceedings that begin, applications and other documents lodged with FWC, and notices given to the FWC, on or after the time the Amendment Rules commence.

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011 (Cth)

Fair Work Commission Amendment (2026 Measures No. 1) Rules 2026

This legislative instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) (the HR(PS) Act).

Overview of the Legislative Instrument

The Fair Work Commission (the FWC) is Australia’s national workplace relations tribunal.  The Fair Work Commission Rules 2024 (Cth) (the Rules) are made by the President of the FWC under section 609 of the Fair Work Act 2009 (Cth) (the Act).  The Rules regulate the practice and procedure of the FWC.

The Fair Work Commission Amendment (2026 Measures No.1) Rules 2026 (the Amendment Rules) amend the Rules to:

Human Rights Implications

The definition of ‘human rights’ in the HR(PS) Act relates to the core 7 United Nations human rights treaties.  The measures in the Amendment Rules engage the following rights:

• the right to the enjoyment of just and favourable conditions of work under Articles 6 and 7 of the International Covenant on Economic Social and Cultural Rights (the ICESCR)
• the right to an effective remedy under Article 2(3) of the International Covenant on Civil and Political Rights (the ICCPR) and the right to a fair hearing under Article 14(1) of the ICCPR
• the right to privacy and reputation under Article 17 of the ICCPR, and
• the right of workers to bargain collectively over working conditions under ILO Convention 98.

Rights in work

The content of the right to just and favourable conditions of work in the ICESCR can be informed by specific obligations in treaties of the International Labour Organisation (the ILO), such as the Right to Organise and Collective Bargaining Convention 1949 (No. 98) (ILO Convention 98) and the Freedom of Association and Protection of the Right to Organise Convention 1948 (No. 87) (ILO Convention 87).

Article 7 of the ICESCR requires the State Parties to the Covenant to recognise the right of everyone to the enjoyment of just and favourable conditions of work which in particular, ensure certain matters such as safe and healthy working conditions.

These rights encompass the right not to be unjustly deprived of work.

Amongst its other powers and functions under the Act, the FWC has a range of functions and powers under the Act in relation to minimum standards for labour hire workers, minimum standards for regulated workers, collective agreements for regulated workers and remedies for regulated workers in respect of unfair deactivation, unfair termination and unfair contract terms of services contracts.

The Amendment Rules set out procedural requirements in relation to these and other types of matters.  The Amendment Rules are consistent with the rights in work, as they facilitate the FWC dealing with such matters promptly and efficiently in accordance with the Act.

Right to a fair hearing and right to an effective remedy

Article 14(1) of the ICCPR provides that, in the determination of rights and obligations in a suit at law, all persons have a right to a fair and public hearing before a competent, independent and impartial court or tribunal established by law.

Article 2(3) of the ICCPR guarantees the right to an effective remedy for any violation of rights or freedoms recognised by the ICCPR, including the right to have such a remedy determined by competent judicial, administrative or legislative authorities.

The Amendment Rules support these rights by assisting in ensuring the accountability, efficiency and effectiveness of FWC operations.

For example, the Amendment Rules require an application to the FWC for an unfair termination remedy to be served by the FWC on the respondent as soon as practicable after lodgment with the FWC, and for the respondent in turn to lodge and serve a response to the application within 7 days after being served with the application (see item 28, rule 90) and item 44, table entries for the approved forms F90 and F90A).  Each of the FWC’s approved application and response forms is designed to gather particular information that the FWC needs to deal with the matter to which the form relates in accordance with the Act, the Fair Work Regulations 2009 (Cth), the Rules and any other applicable legislation.

The lodgment and service of approved application and response forms assists the FWC to deal with an application promptly and efficiently and, where relevant, determine the matter and decide on any appropriate remedy.  It also assists in ensuring that procedural fairness is afforded to the parties and that FWC processes are open, impartial and transparent.

Right to privacy

Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or unlawful interference with their privacy.  The United Nations Human Rights Committee (the Committee) has interpreted the right to privacy as comprising freedom from unwarranted and unreasonable intrusions into activities that society recognises as falling within the sphere of individual autonomy.

The right to privacy may be limited where the limitation is lawful and not arbitrary.  A limitation not being ‘arbitrary’ means that it must be in accordance with the provisions, aims and objectives of the ICCPR and should be reasonable in the particular circumstances.  The Committee has interpreted ‘reasonableness’ to imply that any limitation must be proportionate and necessary to achieve a legitimate objective.

The Privacy Act 1988 (Cth) (the Privacy Act) and the Australian Privacy Principles (the APPs) regulate how the FWC collects, holds, uses and discloses personal information.

A number of measures in the Amendment Rules engage the right to privacy.

To place the Amendment Rules in their legislative context, under sections 589 to 593 of the Act, FWC Members have a broad discretion as to how they conduct proceedings and inform themselves in relation to a matter before them.  The FWC is authorised by section 590 of the Act to inform itself in relation to any matter before it in such a manner as it considers appropriate, and the FWC may make decisions as to how, when and where a matter is to be dealt with (section 589).  Section 577 of the Act requires the FWC to perform its functions and exercise its powers in a manner that is fair, just, open and transparent.  This is subject to any confidentiality or non-publication orders made by the FWC under section 593(3) or 594(1) of the Act, and other specific provisions in the Act in relation to particular matter types.

The Amendment Rules continue longstanding arrangements for the FWC to collect personal (and potentially sensitive) information in FWC forms and other documents provided to the FWC.  As noted above, the FWC forms approved by the President are designed to gather the information the FWC needs to deal with matters pursuant to the Act in a way that affords procedural fairness to the parties.

Accordingly, to the extent the Amendment Rules may limit the right to privacy, these limitations represent a reasonable and proportionate means of achieving the legitimate objectives of the Fair Work legislation and are necessary for the performance the FWC’s statutory functions.

The Amendment Rules have also been drafted having regard to privacy obligations under the Privacy Act and APPs.  For example, the Amendment Rules modify the service arrangements for applications for remedies for unfair deactivation, unfair termination and unfair contract terms, to expressly provide that the part of the application that deals with payment or waiver of the application fee is not to be served (see item 28, rule 95).  This is done so that the FWC does not unnecessarily disclose personal information about the applicant.

A further example is rule 17A (see item 13).  Rule 17A provides for certain types of applications, responses to those applications and related documents, to be lodged with the FWC by using the MyFWC electronic lodgment facilities.  Those facilities are presently available only for 2 high-volume types of applications, but the FWC anticipates extending them to further types of matters in the future.  The facilities minimise the need for users to input contact information and other information more than once, and allow users to save drafts of applications, upload supporting documents and pay application fees prescribed by the Act.  Another benefit is that by facilitating service of documents by means of an email containing an electronic link (see item 16, amendment to rule 23), use of the facilities assists in reducing the risk of data breaches.

New subrule 17A(5) is directed to circumstances where a user of the MyFWC electronic lodgment facilities saves a draft application through the facilities, but the user does not subsequently finalise the draft and lodge it with the FWC.  A draft application (such as a draft application for an unfair termination remedy) may include personal (and possibly sensitive) information about the user and about third parties.  While the facility to save a draft is provided to assist the user and the FWC would not usually access the information in the draft, saving a draft is likely to result in the FWC collecting the information in the draft for the purposes of the Privacy Act.  Where such a collection of information does occur, subrule 17A(5) ensures the collection is authorised for the purposes of the APPs.

The MyFWC electronic lodgment facilities are hosted by the FWC and information collected through them is securely stored in the FWC’s cloud-based infrastructure.  The limited circumstances in which the FWC or its contractors may access saved draft applications are set out in the FWC’s Privacy Policy and the privacy collection notice for the facilities.  Draft applications are managed, as with other records before the FWC, in accordance with the relevant records authorities and the FWC’s normal administrative practice policy.

These arrangements in respect of draft applications are considered reasonable, necessary and proportionate to the aim of enhancing access to effective remedies, by facilitating users making applications using the MyFWC electronic lodgment facilities.

Right to bargain collectively

Supervisory bodies of the ILO have expressed the view that the right of workers to bargain collectively over working conditions under ILO Convention 98, extends to workers who are not employees (including self-employed workers and digital platform workers).

Part 3A-4 of the Act provides a legislative framework for the making, registration, variation and termination of collective agreements covering regulated businesses and regulated workers.

To the extent that the right to bargain collectively applies to regulated businesses and regulated workers, the Amendment Rules are compatible with that right as they set out procedural matters that facilitate FWC’s implementation of its functions under Part 3A-4 of the Act.  For example, rule 91 (see item 28) provides for how a person is to give the FWC a consultation notice for a proposed collective agreement if they are required by section 536MM(1)(a) of the Act to do so.

Conclusion

The Amendment Rules are compatible with human rights and freedoms recognised or declared in the international instruments listed in the definition of human rights in section 3 of the HR(PS) Act.  To the extent that measures in the Amendment Rules limit those rights and freedoms, such limitations are reasonable, necessary and proportionate to the legitimate objectives of the Fair Work legislation.