1 Fair Work Act 2009 s.536PD—Commission may make a road transport contractual chain order Application by Transport Workers’ Union of Australia and Australian Road Transport Industrial Organization (MS2026/1) VICE PRESIDENT ASBURY VICE PRESIDENT GIBIAN COMMISSIONER CONNOLLY SYDNEY, 19 JUNE 2026 Road transport contractual chain order made under Part 3B-2 of the Fair Work Act 2009 (Cth) – Time-sensitive contractual chain order – Review of order – Publication of notice of intent a draft variation to order – Submissions received from interested parties – Subsequent change of circumstances – Statement issued. Background [1] On 20 April 2026, an Expert Panel of the Commission made a time-sensitive road transport contractual chain order under Part 3B-2 of the Fair Work Act 2009 (Cth) (the FW Act) known as the Road Transport Contractual Chain Order – Fuel Cost Recovery – 2026 (MS900102 PR798817) (the Order). The Order took effect on 21 April 2026. The order was made to address the emergency situation declared by the Minister in the Fair Work (Emergency Application – MS2026/1) Determination 2026, namely, the fuel supply chain disruption resulting from, or which continues to be affected by, the reduction in shipping through the Strait of Hormuz; and conflict in the Middle East. [2] Clause 5.4 of the Order provides that the order would be subject of a review after the first month of its operation and then every three months thereafter. On 28 April 2026, the Expert Panel released a statement in which it set out the process it proposed to adopt in relation to the initial review: Application by Transport Workers’ Union of Australia and Australian Road Transport Industrial Organization [2026] FWCFB 99. As part of the review, an engagement conference was conducted on 1 May 2026, interested parties were directed to file any witness statements, evidentiary material or written submissions by 21 May 2026 and the Expert Panel conducted a hearing on 25 May 2026. [3] On 29 May 2026, the Expert Panel published a further statement together with a notice of intent for the purposes of s 536PG(1) of the FW Act and draft variation it proposed to make to the Order. The statement indicated that the Expert Panel was not persuaded at that time that the order should be revoked and proposed to vary the order in a number of ways with the intention of clarifying and improving its operation. The statement contained directions permitting interested parties and affected entities to make written submissions in relation to the [2026] FWCFB 150 STATEMENT [2026] FWCFB 150 2 proposed variations to the order. As a result of a number of interested parties seeking extensions of time, written submissions have been received progressively up to 18 June 2026. Reduction in the diesel price [4] Whilst the process of receiving submissions in relation to the proposed variation took place, the operation of the order has been affected by changes in the diesel price. Clause 4 of the order imposes certain obligations with respect to the adjustment of rates paid for the performance of work in the road transport industry on account of increases in the costs of fuel since 6 March 2026. Clause 5.3 of the order provides: 5.3 The obligations in clause 4—Obligations on primary and secondary parties will cease to apply if the weekly average national terminal gate price for diesel, as measured in the weekly diesel price report of the Australian Institute of Petroleum, falls below $2.00 per litre. [5] In its decision in Application by Transport Workers’ Union of Australia and Australian Road Transport Industrial Organization [2026] FWCFB 95, the Expert Panel said in relation to clause 5.3 (at [74]): [74] Clause 5.3 provides that obligations in clause 4 shall cease to operate if the AIP measure for the NATG price for diesel falls below $2.00 (i.e. 200 cents) per litre. This provision recognises that the RTCCO is intended to be an emergency measure only and its obligations are not intended to continue to operate, or operate again, after the price of fuel has returned to a measure of normality. Although a NATG price of 200 cents per litre for diesel is somewhat higher than the price that obtained immediately before the commencement of the Middle East conflict on 28 February 2026, we consider it is a suitable benchmark for signalling when the emergency situation identified in the Determination has passed. However, clause 5.3 may be varied if circumstances pertaining to the price of fuel that we currently cannot foresee occur. [6] The Expert Panel intended the order to operate in a manner that reflects the fact that the order was made to respond to an emergency situation and that the obligations it imposes should cease to operate in the event that the emergency is not ongoing. The Expert Panel anticipated that benchmark set out in clause 5.3 of $2.00 per litre for the weekly national average terminal gate price of diesel would be ‘a suitable benchmark for signalling when the emergency situation identified in the Determination has passed’. [7] The draft variation published by the Expert Panel on 29 May 2026 proposed to vary clause 5.3 to provide a different threshold as follows: 5.3 The obligations in clause 4—Obligations on primary and secondary parties will cease to operate apply if the weekly average national terminal gate price for diesel for four consecutive weeks, as measured in the weekly diesel price report of the Australian Institute of Petroleum, falls below $2.00 per litre. The obligations in clause 4 will cease to operate following the fourth consecutive week in which the weekly average national terminal gate price falls below $2.00. [8] That proposed variation was one matter addressed in the submissions of interested parties which have been received since 29 May 2026. The Expert Panel has yet to determine whether to vary clause 5.3 in that manner or otherwise. [2026] FWCFB 150 3 [9] The Australian Institute of Petroleum (AIP) reported that the weekly national average terminal gate price of diesel for the week ending 7 June 2026 was 189.70 cents: Weekly Diesel Prices Report - 7 June 2026.pdf. That represented the first occasion on which the weekly national average terminal gate price for diesel fell below $2.00 per litre since the order was made. The AIP weekly diesel price report for the week ending 14 June 2026 recorded that the weekly national average terminal gate price for diesel was 191.5 cents for that period: Weekly Diesel Prices Report - 14 June 2026.pdf. That is, there are now two consecutive weeks in which the weekly national average terminal gate price for diesel has been below $2.00. The consequence of these developments is that the trigger in clause 5.3 of the order has been activated and the obligations set out in clause 4 have ceased to apply. [10] Section 536NT(7) provides that a road transport contractual chain order continues in operation until it is revoked. The Commission can make an order revoking a road transport contractual chain order under s 536PT either on application under s 536PS or on its own initiative. No such order has been made. The provisional view of the Expert Panel is that this means the order continues to be ‘in operation’ for the purposes of s 536NT notwithstanding the fact that the obligations in clause 4 have ceased to apply by operation of clause 5.3. Interested parties generally appear to have assumed it would be open to the Expert Panel to ‘re-enliven’ the obligations in clause 4 of the order by varying the order. However, detailed submissions have not been made in relation to that matter, and it is not appropriate to express a final view about that question at this stage. Future course [11] A number of interested parties have made submissions in relation to the consequences of clause 5.3 of the order being triggered. The Transport Workers’ Union (the TWU) submits that the Expert Panel can and should vary the order in the manner proposed in the notice of intent and draft variation published on 29 May 2026 notwithstanding these events. It submits that, if the proposed variation to clause 5.3 is made, then the obligations in clause 4 of the order will only cease to apply if the weekly national average terminal gate price for diesel remains below $2.00 for more than four consecutive weeks. [12] Australian Business Lawyers and Advisors (ABL), acting for Australian Business Industrial and other parties, submits that the Commission could only re-enliven the obligations in clause 4 by varying the order retrospectively or making a different form of variation (which they submit would require a new notice of intent and draft variation to be published). The Ai Group submits that interested parties have not had sufficient time or opportunity to address the consequences of the cessation of the obligations in clause 4 of the order. It submits that, to the extent that the Expert Panel is considering revival or restoration of the obligations in the order, it is critical that a reasonable period is afforded to allow consultation and engagement with parties covered by the obligations in the order. [13] In the circumstances, the Expert Panel has the provisional view that there is no utility in determining at this time whether to vary the order in the manner proposed in the notice of intent and draft variation published on 29 May 2026. The proposed variations were formulated, and submissions made in relation to them, in circumstances in which the obligations in clause 4 applied to primary and secondary parties in road transport contractual chains. The obligations set out clause 4 have now ceased to apply as a result of the weekly national average terminal gate price falling below $2.00. [2026] FWCFB 150 4 [14] Although it may be open to the Expert Panel to vary the order to re-enliven the obligations in clause 4, we consider it is appropriate to invite further submissions as to what course should be adopted in the circumstances, including the nature of the Commission’s powers to vary clause 5.3 in a manner that would revive the obligations in clause 4 and whether that step should be considered. The Commission directs that any written submissions by affected parties as to what step (if any) the Commission should take in relation to the order are to be lodged by 4:00 pm (AEST) on Friday, 3 July 2026. Submissions may be lodged by email to rws@fwc.gov.au. Submissions will be published to the matter webpage. VICE PRESIDENT Printed by authority of the Commonwealth Government Printer <PR811176>