On 15 December 2023, the Fair Work Legislation Amendment (Closing Loopholes) Act 2023 commenced operation and introduced new workplace delegates’ rights for employees under the Fair Work Act 2009 (Cth).

The Closing Loopholes Act also amended the Fair Work Act to require the Fair Work Commission to vary modern awards to include a ‘delegates’ rights term’, which provides for at least the exercise of the delegates’ rights contained in section 350C of the Fair Work Act. On 28 June 2024, the Commission published a statement setting out the content of the delegates’ rights term to be inserted into all awards and issued determinations varying individual modern awards to include the term from 1 July 2024.

On 18 September 2024, two applications were made to the Federal Court of Australia for judicial review of the delegates’ rights terms inserted into ten modern awards.

On 17 December 2025, a Full Court of the Federal Court of Australia issued its decision in respect of the two applications and set aside the orders made by the Commission. The Full Court found that, in making the orders, the Commission went beyond the powers available to it under the Fair Work Act with the result that the orders were affected by jurisdictional error. The Full Court also issued writs requiring the Commission to exercise its function under the Fair Work Act according to law.

This Member Advice provides further detail about this decision and its implications.