1 Fair Work Act 2009 s.536JY—Commission may make an employee-like worker minimum standards order Applications by the Transport Workers’ Union of Australia (MS2024/1 and MS2024/2) JUSTICE HATCHER, PRESIDENT VICE PRESIDENT ASBURY COMMISSIONER CONNOLLY SYDNEY, 30 JUNE 2026 Applications by the Transport Workers’ Union of Australia to make an employee-like worker minimum standards order, a road transport minimum standards order and a road transport contractual chain order – applications by Amazon Commercial Services Pty Ltd and Australian Industry Group to vacate listings. [1] This decision concerns an application by Amazon Commercial Services Pty Ltd (Amazon) for the vacation of the outstanding directions and listings for hearing in, and for the stay of, matter MS2024/1, and a request by the Australian Industry Group (Ai Group) for the vacation of the outstanding directions and listings for hearing in matters MS2024/1 and MS2024/2. [2] For the reasons which follow, Amazon’s application is dismissed and the Ai Group’s request is rejected. Procedural background [3] On 28 August 2024, the Transport Workers’ Union of Australia (TWU) filed applications under s 536JY of the Fair Work Act 2009 (Cth) (FW Act) for the Commission to make an employee-like worker minimum standards order (matter MS2024/1) and a road transport minimum standards order (matter MS2024/2) relating respectively to employee-like workers and contractors performing pickup and ‘last mile’ delivery of goods by vehicle. The same day, the TWU also filed an application for the Commission to make an employee-like worker minimum standards order (matter MS2024/3) relating to employee-like workers delivering food, beverages and like items via various arrangements involving digital labour platforms. [4] On 26 September 2024, the TWU filed an application under s 536PD of the FW Act for the Commission to make a road transport contractual chain order (RTCCO) covering, inter alia, ‘the transport by road of goods, wares, merchandise, material or anything whatsoever’ (matter MS2024/4). [5] On 3 November 2025, following receipt of advice from the Road Transport Advisory Group on the relative prioritisation of matters MS2024/1, MS2024/2, MS2024/3 and [2026] FWCFB 154 DECISION [2026] FWCFB 154 2 MS2024/4, the President issued a decision,1 including directions and provisional directions, indicating that while all four matters would, broadly speaking, move forward together, matters MS2024/1, MS2024/2 and MS2024/3 would be heard together, with matter MS2024/4 to be heard shortly thereafter. [6] The position changed after the TWU filed a draft minimum standards order (MSO) in matter MS2024/3 the terms of which were the subject of agreement with Portier Pacific Pty Ltd t/a Uber Eats (Uber Eats) and DoorDash Technologies Australia Pty Ltd t/a DoorDash (DoorDash). On 23 December 2025, the President issued directions2 (December directions) pursuant to which MS2024/3 would now be heard on an expedited basis separately and prior to matters MS2024/1 and MS2024/2. The December directions set deadlines for the filing of material in relation to matters MS2024/1, MS2024/2, MS2024/3 and MS2024/4 and set dates for directions hearings and substantive hearings for all four matters. [7] On 24 February 2026, the TWU requested that the December directions in respect of matters MS2024/1, MS2024/2 and MS2024/4 be amended to extend the deadlines to file submissions and evidence by two weeks. On 26 February 2026, the Ai Group submitted that it would prefer the December directions in respect of matter MS2024/4 be vacated rather than varied, pending the hearing and determination of matters MS2024/1 and MS2024/2, among others. [8] On 5 March 2026, the President vacated the December directions in respect of matters MS2024/1, MS2024/2 and MS2024/4 in their entirety and issued amended directions (March directions). In respect of MS2024/1 and MS2024/2, the March directions relevantly: • required the TWU to file its evidence and submission by 13 March 2026; • required parties opposing the TWU’s draft MSO or advancing an alternative MSO or guidelines to file their evidence and submissions by 10 July 2026; • listed the matters for a directions hearing (for programming purposes) on 15 July 2026; and • listed the matters for hearing as to whether notices of intent and draft MSOs should be issued under ss 536KAA or 536KB of the FW Act on 20–24 July, 27– 31 July and 3–7 August 2026 in Sydney. [9] Following the commencement of the conflict in the Middle East in late February 2026 and the consequent increase in petrol and diesel prices, on 2 April 2026 the TWU and the Australian Road Transport Industrial Organization applied on an urgent basis for a RTCCO that would facilitate cost recovery of the increased fuel prices by providers of road transport services (matter MS2026/1). This was declared to be an emergency application under s 536PEA(3) of the FW Act by the Minister on 10 April 2026. The application was dealt with on an urgent basis by the Commission with the result that, on 20 April 2026, an Expert Panel for the road transport industry made a RTCCO to take effect the following day (Fuel Order).3 Clause 5.4 of the Fuel Order provided that it would be the subject of review by the Commission after the first month of its operation and every three months thereafter. The initial review has been initiated. For 1 [2025] FWC 3300. 2 PR795342. 3 [2026] FWCFB 95, PR798817. [2026] FWCFB 154 3 reasons explained in a Statement issued by the Expert Panel on 19 June 2026,4 the primary obligations in the Fuel Order have now ceased to operate, and the Panel has invited further submissions from interested parties as to what course should now be taken. Such submissions are due by 3 July 2026. [10] From 11 to 15 May 2026, an Expert Panel for the road transport industry heard interested parties on whether a notice of intent and draft minimum standards order should be issued in matter MS2024/3. Amazon and the Ai Group were participants in this hearing. The Expert Panel has reserved its decision in that matter. The applications [11] On 21 May 2026, Amazon filed a Form F1 application seeking the vacation of the outstanding March directions in respect of matter MS2024/1 only. Those items relate to the filing of material by parties opposing the TWU’s draft order, the listing of the directions hearing and the listing of the substantive hearing. It further applied for the proceedings in MS2024/1 to be stayed pending the determination of matter MS2024/3. [12] Amazon filed submissions in support of its application on 25 June 2026, pursuant to a direction issued on 22 June 2026. In its submissions, Amazon refers to the principles concerning applications for the stay of proceedings stated in Sterling Pharmaceuticals Pty Limited v The Boots Company (Australia) Pty Limited (1992) 34 FCR 287. This decision identified the relevant considerations as including whether the resolution of one proceeding has an effect on the other, potential for wasted resources, public interest, progress of the proceedings, and balancing the advantages and disadvantages. Amazon contends that, first, the Expert Panel’s decision in MS2024/3 will have a significant material impact on MS2024/1, especially in respect of coverage, and that issues such as the inclusion of groceries will likely expand to include non-supermarkets who will have interest in the rates to be applied for delivery. Second, the overlap of the work proposed to be covered by both matters makes it difficult for interested parties to properly and fairly address the Expert Panel on the mandatory statutory criteria relevant to MS2024/1 until it knows the landscape set by MS2024/3; for instance, the rates to be paid to employee-like workers will be a significant issue in MS2024/1 which the parties will be unable to address properly until they know the rates to be applied in MS2024/3. Third, there is a risk that interested parties and the Commission will suffer from wasted resources by dedicating time and resources to appear at a three-week hearing, particularly if the Expert Panel accepts Amazon’s position on coverage in MS2024/3. Because of the potential impact of MS2024/3 on MS2024/1, the hearing for the latter will not be reasonably concluded until after the former is determined, meaning further hearing dates will be required for MS2024/1 which in turn increases time and cost. Fourth, Amazon contends that the outstanding matters relating to Bluecard training and insurance in the TWU’s proposed MSO for MS2024/1 affects the capacity of parties to prepare for the hearing as they do not know whether the Expert Panel considers that the relevant claims would be unable to be included in any MSO. Should the Expert Panel find that the inclusion of those clauses is beyond power, parties would suffer wasted costs and time in dealing with this issue. 4 [2026] FWCFB 150. [2026] FWCFB 154 4 [13] On 12 June 2026, the Ai Group sent correspondence to the President’s chambers requesting the vacation of the outstanding March directions for matters MS2024/1 and MS2024/2. Alternatively, it sought that those matters, along with MS2024/4, be listed for a further directions hearing. This request is said to be supported by NatRoad, the South Australian Road Transport Association, Road Freight NSW, the Master Builders Association, the Civil Construction Federation and the Australian Furniture Removalists Association. In this correspondence, the Ai Group sets out the grounds for its request. The primary ground is that the continuation of the directions would be unfair and unreasonable because of the impact on parties participating in the concurrent proceedings in matter MS2026/1 concerning the review of the Fuel Order. Further, the Ai Group submits that the President should give further consideration to the prioritisation of regulated workers matters before the Commission considering the expanded number of such matters. The other grounds for the request are: (1) There is an overlap between matters MS2024/1, MS2024/2 and MS2024/3 because it was evident during the hearing in matter MS2024/3 that the proposed MSO for on-demand delivery would apply to vehicles of the same type and goods of the same nature as proposed by the TWU in the last-mile MSOs, giving rise to issues concerning effects on competition. Hence it would be unfair for interested parties to be required to file their evidence and submissions until the Expert Panel publishes any draft MSO and its reasons in matter MS2024/3. (2) The amended directions for MS2024/1 and MS2024/2 do not provide the parties the opportunity to file material in reply to material filed in response to the TWU’s material, such as the TWU’s cost model, or allow adequate time to consider any material filed. (3) The amended draft MSO filed by the TWU (without seeking leave) with their submission in support of its application in MS2024/2 potentially seeks to expand the coverage of the MSO to include contractors, and parties who would be covered by this larger scope may not be aware. The Ai Group has begun engaging with parties who may be impacted but further engagement is required. (4) The Commission’s prior decision regarding the prioritisation of MS2024/1 and MS2024/2 should be reassessed in light of the Fuel Order, which required Ai Group to redirect its resources to this intensive and expedited proceeding, resulting in an inability to progress the preparation of materials for matters MS2024/1 and MS2024/2 in a meaningful way. Further review of the time- sensitive Fuel Order will mean devoting more resources to this matter, and as such, the Commission should reconsider which matters are prioritised. (5) The Ai Group’s ability to prepare materials for matters MS2024/1 and MS2024/2 has been curtailed by the demands from other concurrent matters such as TWU applications in the NSW Industrial Commission concerning owner drivers, the 2026 Annual Wage Review, matter AM2026/10 concerning vehicle allowances, matter AM2024/24 concerning junior rates, the review of part-time employment in matter AM2025/17, applications to vary the Social, Community, Home Care and Disability Services Industry Award 2010 in matter AM2024/30, applications to vary the Airline Operations – Ground Staff Award 2020 [sic] in [2026] FWCFB 154 5 matters AM2025/8 and AM2026/3, and applications to vary the Air Pilots Award 2020 in matters AM2025/14 and AM2026/4. (6) The TWU has ignored requests by Ai Group for a copy of important material relied on by expert witness Mr Fehon in preparation of their cost model, which has hampered the preparation of material, such as being unable to obtain instructions from members to properly test the relevant evidence or determine a position in relation to the claim. (7) The TWU had the benefit of 19 or so months since filing the application to prepare their case, while Ai Group was only afforded a mere four months to prepare its evidence and submission in reply to the TWU’s material. Consideration [14] The starting point for consideration of the applications made by Amazon and the Ai Group is that the TWU’s applications in matters MS2024/1 and MS2024/2 were made in August 2024, over 22 months ago. They have been the subject of an extensive consultation process and, since December 2025, have been programmed for hearing. The TWU has a right to have its applications heard and determined, and it would require a significant development to vacate the program for the filing of evidence and submissions and the hearing dates, and to stay the proceedings, at this late stage. [15] No such significant development has occurred. It has been apparent at least since the TWU filed its draft MSOs for matters MS2024/1, MS2024/2 and MS2024/3 on 24 November 2025 that it seeks significantly different minimum rates and conditions in matter MS2024/3 as compared to what is sought in matters MS2024/1 and MS2024/2 and that this might give rise to issues about a ‘level playing field’ as between competing businesses undertaking delivery work. This issue was raised by Amazon when it opposed the application made by the TWU and supported by Uber Eats and DoorDash for matter MS2024/3 to be procedurally separated from matters MS2024/1 and MS2024/2 and given an earlier and expedited hearing. That issue was expressly considered in the President’s decision and directions of 23 December 20255 in which he determined to accede to the TWU’s application. The President acknowledged that if there was a decision in matter MS2024/3 to publish a notice of intent in relation to the MSO proposed by the TWU and supported by Uber Eats and DoorDash, there would obviously need to be consideration in matter MS2024/1, and perhaps matter MS2024/2, as to whether equivalent rates of pay and other conditions should apply in any MSOs to be made in respect of those matters.6 The applications now made by Amazon and the Ai Group effectively seek to revisit the procedural course determined in December 2025 without any relevant change in circumstances having occurred. [16] The basis for Amazon’s application is that the outcome of matter MS2024/3 will have a fundamental effect on the determination of matters MS2024/1 and MS2024/2 such that the hearing of the latter two matters cannot reasonably be concluded until the outcome of the former is known. That is a proposition with some degree of force. However, we anticipate that we will 5 PR795342. 6 Ibid [9]. [2026] FWCFB 154 6 be in a position to deliver our decision in matter MS2024/3 on or before 9 July 2026, and this effectively answers the complaint underlying Amazon’s application. If some lesser adjustment to the March directions is required to allow parties to properly address any implications of our decision, that may be addressed after the decision is issued (noting that there is a directions hearing in relation to matters MS2024/1 and MS2024/2 listed for 15 July 2026). However, we do not anticipate that the outcome of matter MS2024/3 will affect the evidence to be filed by respondent parties in matters MS2024/1 and MS2024/2. [17] We do not accept the Ai Group’s proposition that its involvement in matter MS2026/1 has prejudiced its capacity to participate effectively in matters MS2024/1 and MS2024/2. The main phase of this matter took place in the period from the filing of the application on 2 April 2026 and the final hearing on 17 April 2026 prior to the making of the Fuel Order on 20 April 2026. Although the Ai Group attended the hearings and made submissions, it did not adduce any evidence. We do not consider that the review of the Fuel Order which has occurred since then has necessitated the utilisation of significant resources on the part of the Ai Group. The current position, as earlier stated, is that the primary obligations in the Fuel Order have ceased to operate, so it is likely that the future significance of the proceedings in matter MS2026/1 is considerably diminished (unless there are new developments in the Middle East conflict of a major and unexpected nature). This does not justify the complete abandonment of a major hearing which has been scheduled since December 2025. [18] Likewise, the other matters raised by the Ai Group do not, considered cumulatively or separately, justify the vacation of the hearing dates. We have already dealt with the issue of the overlap between matter MS2024/3 and matters MS2024/1 and MS2024/2. In respect of the other matters raised: • the Ai Group has given no reason why the absence in the March directions of a direction for reply material would justify, in June 2026, the complete vacation of the March directions and the hearing dates; • the Ai Group has not previously objected to leave being granted for the TWU to amend its draft MSO in matter MS2024/2 but retains the right to do so, such leave having not yet been granted; • the involvement of the Ai Group in other proceedings, some of which have substantively concluded, or will not be heard until 2027, or are in a different tribunal, does not provide a proper basis for the abandonment of the hearing dates in this matter and the consequential prejudice to the TWU’s right to have its applications heard and determined within a reasonable timeframe; • if the TWU has resisted or ignored a request by the Ai Group for the production of relevant documents, the proper recourse is for the Ai Group to apply for an order for production under s 590(2)(c) of the FW Act; and • the Ai Group has known of the TWU’s applications since August 2024 and has been on notice as to the terms of the MSOs which are sought since November 2025, so its complaint that it has been afforded ‘only’ four months to prepare its case is not accepted. [2026] FWCFB 154 7 [19] For the above reasons, the March directions, including the hearing dates, in respect of matters MS2024/1 and MS2024/2 will not be vacated, and matter MS2024/1 will not be stayed. Any outstanding procedural issues may be raised at the 15 July 2026 directions hearing or, if of an urgent nature, by correspondence directed to the President’s chambers. PRESIDENT Printed by authority of the Commonwealth Government Printer <PR811528>