As we start 2026, several important workplace relations developments are already shaping the operating environment for small businesses. Recent Federal Court decisions and new government consultations may have direct implications for employers, particularly those using labour hire arrangements or working on government contracts.
Below is a summary of the key updates small businesses should be aware of.
Federal Court Decision on Union Delegate Rights
On 17 December 2025, the Federal Court handed down a significant decision clarifying union delegate rights in workplaces. The Court found that previous restrictions on how and where union delegates could communicate with employees were too narrow.
As a result, union delegates can now:
- Communicate with eligible employees beyond just their own employer at a workplace
- Discuss a broader range of workplace matters with employees
- Exercise their rights with fewer restrictions than previously applied
This decision immediately affects ten specific industry awards, including construction, manufacturing, mining, and electrical awards. Changes may extend to other awards in the future as the Fair Work Commission revises the relevant provisions and model terms.
Small businesses operating in these sectors should keep an eye on further updates as these changes are implemented.
Labour Hire and “Same Job, Same Pay” Court Decisions
Two recent Federal Court decisions have provided important clarification on how the “Same Job, Same Pay” provisions apply, particularly for businesses that engage labour hire workers.
Decision 1 – Skilled Workforce Case
The Court clarified that “Same Job, Same Pay” orders must be specific to the particular group of workers involved, rather than applying broadly across all labour hire workers. In this case, the Fair Work Commission’s original order was found to be too wide-ranging.
Decision 2 – BHP Coal Case
In contrast, the Court upheld “Same Job, Same Pay” orders for labour hire workers at BHP, even though the work involved was specialist in nature. This decision confirms the broad reach of these provisions and highlights potential risks for businesses relying on labour hire arrangements.
Together, these decisions underscore the need for employers to carefully review labour hire practices and understand how the rules apply in specific workplace contexts.
New Secure Australian Jobs Code – Have Your Say
The Department of Employment and Workplace Relations (DEWR) has opened consultation on a proposed Secure Australian Jobs Code. This initiative aims to ensure that businesses receiving government contracts demonstrate fair and ethical employment practices.
The proposed Code may introduce new requirements around how businesses engage and treat employees. The government intends to use its purchasing power to support organisations that provide secure employment and operate fairly.
A consultation paper has been released to guide feedback. Submissions close on 20 February 2026.
COSBOA will be making a submission, seeking special consideration for small businesses given the complexity of compliance requirements and the more limited resources available compared to larger organisations.
Review of Recent Workplace Law Changes
The federal government is also reviewing the recently introduced “Closing Loopholes” workplace laws. This review will examine:
- Whether the changes are working as intended
- Any unexpected problems created for businesses
- What adjustments may be required
Submissions close on 3 March 2026. COSBOA will make a detailed submission on behalf of small businesses and is particularly interested in hearing real-world examples of how these laws have affected business operations—positively or negatively.
Support for Small Business
Small Business PEAK continues to support employers through these changes by providing practical guidance and up-to-date resources to help businesses understand and implement workplace and industrial relations requirements.
The Small Business PEAK program is delivered by the Council of Small Business Organisations Australia (COSBOA) with grant funding from the Australian Government.
