Changes to Delegates Rights, Clarification on Sleepover Provisions in SCHADS Award, New Definition of High Risk Construction Work & Closing Loopholes Review

FWC drafting new clause on Workplace Delegates Rights in all modern awards

The Fair Work Commission Full Bench (the Full Bench) has released their provisional view on a new workplace delegates rights clause to be implemented in all modern awards after the Full Court of the Federal Court (FCAFC) struck down the clause that has been operating since July 2024 (the Decision).[1]

Employers may remember that a workplace delegates rights clause was added into all modern awards after amendments to the Fair Work Act 2009 (Cth) (FW Act) by the Fair Work Legislation Amendment (Closing Loopholes) Act 2023 (Closing Loopholes Act). A workplace delegate is a person appointed or elected in accordance with the rules of a Union to represent members who perform work in a business.[2]

The Decision

The Decision followed a challenge by Unions[3] who successfully argued that the term in certain Awards[4] formulated by the Full Bench was too narrow – that is, it impermissibly confined the scope of delegates’ rights.

The FCAFC made clear that the scope of workplace delegates rights is not restricted in application to persons who are ‘employed’ by the employer of the delegate, thereby excluding third party labour-hire workers. The FCAFC also clarified that delegates must be able to communicate with workers broadly ‘in relation to’ their industrial interests, rather than strictly ‘for the purposes of representing’ them.

The FCAFC further found that in exercising the rights as a delegate, this was not subject to an obligation by the delegate to comply with their duties and obligations as an employee and not to hinder, obstruct or prevent the normal performance of work, whether or not the delegate was reasonably exercising rights conferred by the clause.

The Decision means that the original term as formulated by the Full Bench and inserted into Modern Awards to date is invalid and of no effect.  The Full Bench must now re-draft that term, in accordance with their obligations under the FW Act.  The term is expected to be released this week, 23 January 2026.

Impact on all modern awards and enterprise agreements

The Full Bench intends that all modern awards will be amended to include the de-drafted clause (as published in the Full Bench’s Statement and Direction of 23 December 2025).[5]  For those employers with enterprise agreements pending approval, this has delayed the formal steps of approval for a short time.  Approval decisions will be subject to a requirement that enterprise agreements include the revised workplace delegates term going forward.

Clarification of sleepover provisions in the SCHADS Award

On 22 December 2025, the Full Bench decided applications by the Australian Industry Group (AI Group) and the Australian Municipal, Administrative, Clerical and Services Union (ASU) which sought to clarify ambiguities relating to ‘sleepover shifts’ under the Social, Community, Home Care and Disability Services Award 2010 (SCHADS Award).[6]

Clause 25.7 of the SCHADS Award defines a sleepover shift as “where an employer requires an employee to sleep overnight at premises where the client for whom the employee is responsible is located (including respite care)”.[7]

Application to vary the SCHADS Award was made to clarify that work immediately before and after a sleepover are separate shifts and a sleepover is to be considered a break from work. The ASU opposed this, asserting that work either side of a sleepover is to be considered a single shift. This distinction has implications for when a shift attracts overtime and other penalty rates under the SCHADS Award.

The application to vary was made in light of the Federal Court decision of Jats Joint Pty Ltd v Fair Work Ombudsman 2025, where the Court found that a sleepover period does not form part of a shift and that Jats Joint was not required to pay the relevant employee at the night shift rate under clause 29.3 for adjacent shifts on either or each side of the sleepover periods.[8] This was a significant departure from the position taken and enforced by the Fair Work Ombudsman against employers in many cases to that point.  The Full Bench accepted the Court’s interpretation, noting its task was a little different in the context of an Award variation which required them to determine whether the operation of the Award provision, so interpreted, was unsatisfactory, having regard to the modern award objectives.

The Full Bench determined that because of ambiguity or uncertainty, the SCHADS Award should be varied to:

1. Clarify that work on either side of a sleepover is to be deemed as a single shift and a sleepover is not to be considered a ‘break’ under clause 25.4 of the SCHADS Award.
2. Allow for an agreement between an employee and their employer to be reached, where up to 12 hours can be considered “ordinary hours” during a sleepover shift, provided that a maximum of 8 hours can be worked either before or after a sleepover. For example, where an agreement is reached, an employee could work 8 hours on one side of a sleepover, and 4 hours the next without attracting overtime. Any hours in excess of 4 in the second period would then attract overtime.
3. Provide that periods before and after a sleepover should be considered separately for the purpose of calculating penalty rates under clause 29.3. For example, where an employee works an ‘afternoon shift’ on one day, they would be entitled to the afternoon shift loading for the first portion of work, but not for the next day if those hours are not within the ranges specified in clause 29.2.

The Full Bench will provide interested parties with an opportunity to comment on proposed amendments prior to their implementation into the SCAHDS Award. Once these variations are implemented, they will act prospectively.

Changes to definition of “high-risk construction work” in WHS Regulations

On 30 October 2025, the South Australian Government made changes to the Work Health and Safety (High Risk Construction Work) Amendment Regulations 2025 (SA) (the Amendments). The Amendments will alter the definition of “high-risk construction work” under clause 291 of the Work Health and Safety Regulations 2012 (SA) (the Regulations) by lowering the threshold from the risk of a person falling three (3) meters to two (2) meters, bringing the South Australian definition in line with all other Australian jurisdictions.

Where the risk of a person falling two (2) meters or higher is present, PCBU’s[9] will now need to prepare a documented safe work method statement (SWMS) that:

• Identifies the work
• Specifies hazards associated with the work, as well as risks to health and safety associated with those hazards
• Identifies control measures to manage those risks; and
• Identifies how these control measures are to be implemented and reviewed.[10]

The SWMS must be prepared prior to the work commencing.

These changes will come into effect 1 July 2026.

Closing Loopholes Review seeking submissions by 3 March

On 15 December 2025, the Australian Government commenced a review (the Review) into the ‘Closing Loopholes Acts’ from 2023 and 2024, in line with the requirements under section 4 of each respective Act.[11] The Review will also consider the effectiveness of the Fair Work Amendment (Paid Family and Domestic Violence Leave) Act 2022 (Cth) (the Acts).[12]

The purpose of the Review is to:

• Consider whether the operation of the amendments is appropriate and effective
• Identify any unintended consequences of the amendments; and
• Consider whether further amendments to the [FW Act], or any other legislation, are necessary to improve the operation of the amendments or rectify any unintended consequences that are identified.[13]

Interested parties are therefore encouraged to make submissions on the Acts by 3 March 2026 through the Department of Employment and Workplace Relations online portal, which will be publicly available.  An interim report is to be provided to the Minister for Employment and Workplace Relations on or before 15 May 2026, with a final report due on or before 15 June 2026. The final report will be tabled in Parliament within 15 days of its delivery to the Minister.  We will keep you updated of reports on this issue going forward.
[1] See Construction, Forestry and Maritime Employees Union v Australian Industry Group [2025] FCAFC 187

[2] See Fair Work Act 2009 (Cth) s 250C

[3] the Construction, Forestry and Maritime Employees Union, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and the Mining and Energy Union.

[4] For example, the Building and Construction General On-site Award 2020, the Manufacturing and Associated Industries and Occupations Award 2020, the Mining Industry Award 2020 and others.

[5] See here at Attachment C

[6] Application by The Australian Industry Group & others [2025] FWCFB 292

[7] Social, Community, Home Care and Disability Services Industry Award 2010 cl 25.7

[8] Jats Joint Pty Ltd v Fair Work Ombudsman [2025] FCA 743

[9] For a definition of ‘PCBU’ see Work Health and Safety Act 2012 (SA) s 5

[10] Work Health and Safety Regulations 2012 (SA) reg 299

[11] Fair Work Legislation Amendment (Closing Loopholes) Act 2023 (Cth) and the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (Cth)

[12] Department of Employment and Workplace Relations, Australian Government Response to the Independent Review of the operation of the paid family and domestic violence leave entitlement in the Fair Work Act 2009 (Cth) (Report, 2024) 24, see here  

[13] See Closing Loopholes Review Terms of Reference