Employers should familiarise themselves with new delegates’ rights terms included in modern awards that are applicable to their workforces.

Delegates’ rights provisions were initially introduced into the Fair Work Act (FW Act) in 2023 by the Fair Work Legislation Amendment (Closing Loopholes) Act 2023.

The Fair Work Commission (FWC) was required to consult on, draft and insert a term that came into effect in on 1 July 2024 regarding delegates’ rights in all modern awards.

However, in 2025, three unions challenged the Commission’s decision regarding the delegates’ rights term, saying it was inconsistent with, and narrower than, the delegates’ rights in the FW Act.

The Federal Court agreed with the unions and earlier this year the FWC issued a decision which broadened the delegates’ rights terms in all modern awards.

Below we examine the importance of this decision and what it means for delegates’ rights in modern awards.

Why have changes been made?

In the 2025 case Construction, Forestry and Maritime Employees Union v Australian Industry Group (39-page / 615KB PDF), the Federal Court found that the FWC had made three errors when drafting the delegates’ rights term for modern awards, namely:

• the definition of “eligible employees” was confined to members “employed by the employer” and therefore the representational clauses were limited to direct employees only;
• communications were limited to being “for the purpose of representing” industrial interests; and
• there were...

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