Application by Australian Business Industrial (143N) & NSW Business Chamber Ltd,Application by Nsw Business Chamber Limited & Australian Business Industrial (143N),Application by Australian Industry Group T/A Ai Group
Citation: [2026] FWC 2305
At a glance
- Awards cited
- MA000002, MA000019
What happened
Australian Business Industrial (ABI) and The Australian Industry Group (Ai Group) applied to vary two awards: the Clerks—Private Sector Award 2020 and the Banking, Finance and Insurance Award 2020. They proposed new clauses allowing employers to pay employees a rate above the award minimum while potentially exempting them from certain provisions like penalty rates. The Australian Municipal, Administrative, Clerical and Services Union (ASU) and the Finance Sector Union of Australia (FSU) opposed these applications. A legal professional privilege claim arose regarding documents, and the Fair Work Amendment (Protecting Penalty and Overtime Rates) Act 2025 (Amendment Act) introduced section 135A impacting penalty rates.
What was decided
The Fair Work Commission decided to refer the applications to a Full Bench for hearing and determination. The Commissioner rejected a proposal for a preliminary hearing on the impact of section 135A, finding it couldn't be determined if the application was 'fatal' without considering evidence. Section 135A restricts changes to modern awards that would reduce penalty rates or overtime entitlements. The Full Bench will hear submissions and evidence from all parties before making a decision. A timeline for filing documents and a hearing date in December 2026 were set.
What it means for employers
Employers seeking variations to awards, particularly those impacting penalty rates or overtime, must carefully consider the implications of section 135A of the Fair Work Act. Any proposed changes require robust evidence demonstrating they do not reduce employee entitlements and comply with legal requirements. The Commission will scrutinise any attempts to substitute existing entitlements.
What it means for employees
Employees should be aware that efforts to alter penalty rates or overtime provisions are subject to strict scrutiny by the Fair Work Commission, especially following the introduction of section 135A. Unions can challenge applications they believe would negatively impact employee entitlements and advocate for protections against reductions in compensation.
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This summary was drafted from the published decision and reviewed before publishing. It is general information, not legal advice. For your specific situation, speak to the Fair Work Ombudsman (13 13 94) or a qualified lawyer. About these summaries & corrections →