s.536JY - Commission may make an employee-like worker minimum standards order

s.536PD - Commission may make a road transport contractual chain order

s.158 - Application to vary or revoke a modern award

Applications by the Transport Workers' Union of Australia

Application by Lawrence Hines re Road Transport (Long Distance Operations) Award 2020

Applications from the Transport Workers' Union of Australia to make employee-like worker minimum standards orders, a road transport minimum standards order and a road transport contractual chain order - application by Lawrence Hines re Road Transport (Long Distance Operations) Award 2020 - prioritisation and procedural directions.

• [1] This decision concerns the prioritisation of and procedural directions to be made in respect of matters MS2024/1, MS2024/2, MS2024/3, MS2024/4 and AM2024/35. Broadly speaking, these applications have the following subject matters:

• MS2024/1: An application by the Transport Workers' Union of Australia (TWU) for an employee-like worker minimum standards order covering 'last mile' delivery.
• MS2024/2: An application by the TWU for a road transport minimum standards order covering 'last mile' delivery.
• MS2024/3: An application by the TWU for an employee-like worker minimum standards order covering the delivery of food, beverages, and other like items.
• MS2024/4: An application by the TWU for a road transport contractual chain order.
  1. AM2024/35: An application by Lawrence Hines for variations to the Road Transport (Long Distance Operations) Award 2020 (Long Distance Award).[1]

1. On 22 January 2025[2] and pursuant to s 40F(5) of the Fair Work Act 2009 (Cth) (FW Act), I directed the Road Transport Advisory Group (RTAG) to:

(1) commence a consultation process in relation to matters MS2024/1-4, and AM2024/35; and

(2) provide me with further written advice as to the prioritisation of the matters once it has formed a final view about this.

• [3] On 1 September 2025, I received the RTAG's advice in a report of the same date. The RTAG's advice has been published on the Commission's website. As to prioritisation, the RTAG advised that matters MS2024/1, MS2024/2, MS2024/3 and MS2024/4 should be simultaneously assigned to Expert Panels for the road transport industry, with those Expert Panels commencing to deal with the applications as soon as possible and, as far as reasonable and practical, the applications moving forward at or around the same timeframes. In the alternative, should this not be possible, the RTAG advised that the applications should be prioritised in the following order: MS2024/3; MS2024/4; then MS2024/1 and MS2024/2. In respect of matter AM2024/35, the RTAG advised that it should not be prioritised ahead of the other matters.

1. On 4 September 2025, I issued a statement[3] in which I invited interested parties to file proposed directions for the matters and any submissions in response to the RTAG advice by 3 October 2025. I also listed the matter for hearing on 17 October 2025 to receive oral submissions about these matters. Submissions and/or proposals for directions were made, in writing and/or at the hearing on 17 October 2025, by:

• the TWU;
• DoorDash Technologies Australia Pty Ltd;
• Lawrence Hines (the applicant in AM2024/35);
• Alan Taylor;
• the Australian Industry Group (Ai Group);
• Australian Business Industrial, Aramex, FedEx Express, Team Global Express and NSW Business Chamber Ltd;
• Portier Pacific Pty Ltd t/a Uber;
• Australian Chamber of Commerce and Industry;
• Amazon Commercial Services Pty Ltd; and
• Menulog Pty Ltd.

• [5] Having considered the submissions, I am not persuaded to depart from the RTAG's advice that matters MS2024/1, MS2024/2, MS2024/3 and MS2024/4 should, broadly speaking, move forward together. Apart from the position of the Ai Group, to which I will return, the parties generally advanced positions that were broadly consistent with the RTAG's advice. There were two specific matters that were raised by parties within this general framework. First, there was a reasonably broad consensus that matters MS2024/1, MS2024/2 and MS2024/3 should be heard together because they had overlapping subject matters. I accept that this is the case, and the orders and directions I make for the programming of these matters will accommodate this. Second, a number of parties contended that these three matters should be heard and determined ahead of matter MS2024/4. For present purposes, I accept that matters MS2024/1, MS2024/2 and MS2024/3 should at least be heard before matter MS2024/4. However, consistent with the RTAG's advice, the hearing of MS2024/4 will closely follow in time the hearing for the other matters.

• [6] The Ai Group submitted, in summary, that the RTAG's advice should not be followed in respect of matters MS2024/1, MS2024/2, MS2024/3 and MS2024/4 and that it was premature at this stage to determine prioritisation. This was said to be because the parties had not yet been informed of the precise scope and content of the draft orders sought by the TWU. The Ai Group submitted that, once the TWU had done this, the matter should be brought back for a further directions hearing to consider the next steps forward. However, at the hearing, the TWU proposed that it should file draft orders by 21 November 2025 - a proposal which, in my view, substantially answered the Ai Group's main complaint. The Ai Group maintained its position in response to this that no further step should be taken even after the TWU had filed its draft orders beyond conducting a further directions hearing. It submitted that it was not certain what the TWU's articulated claim would be, that there needed to be a proper opportunity to engage with industry so that proper feedback can be given to the Commission, and that the Commission should take a 'cautious approach'.

• [7] Contrary to the Ai Group's position, I consider that matters MS2024/1, MS2024/2, MS2024/3 and MS2024/4 should, as far as practicable, be programmed for hearing to determine whether draft orders should be issued pursuant to ss 536KAA, 536KB or 536PG and, if so, the content of those draft orders. The TWU's applications were made over a year ago, and the extensive consultation processes conducted by the RTAG have, I consider, allowed the parties a significant opportunity to familiarise themselves and engage with the issues likely to arise in the proceedings. No other party opposed, at least in principle, the matters being programmed for hearing. As already stated, the TWU is prepared to file draft orders by 21 November 2025 and Uber, supported by a number of other parties, proposed that other parties be given a period of four weeks to file any proposed alternative orders or a document which identifies the issues in contest. That appears to me to be a sensible course. The TWU has also indicated that it will be able to file its evidence and submissions in support of its applications by February 2026, and it is therefore appropriate to make a direction that it should do so.

• [8] Because matters MS2024/1, MS2024/2, MS2024/3 and MS2024/4 may require hearings of potentially significant dimension, and will need to be heard by Expert Panels for the road transport industry[4] consisting of at least three Commission members, I consider that it is necessary to reserve hearing dates and constitute Expert Panels to ensure that the matters can proceed to determination in a reasonably timely way during 2026. For more abundant caution, I consider that four weeks should be reserved for the hearing of matters MS2024/1, MS2024/2 and MS2024/3, and two weeks for matter MS2024/4. This is likely to be more than is necessary, but reserving this amount of time will ensure that the hearings can be run to completion without the need to set further dates. To further facilitate the hearing and determination of the matters, I will also make provisional directions for parties to file their evidence and submissions in response to the TWU's material. I will conduct a further directions hearing on 19 December 2025, after the TWU has filed its draft orders and the other parties have filed their responses, and these provisional directions may be revisited at that time. It may also be possible by then, with a better understanding of what the issues in contention are, to make a more precise estimate of the time needed for the conduct of the hearings.

• [9] The programming of the matters for hearing is not intended to foreclose conciliation of the applications by a Member of the Commission. If there is a sufficient consensus amongst the parties that conciliation of any of the applications would be of utility, a Member of the Commission will be made available for that purpose on request.

• [10] In respect of matter AM2024/35, the applicant submitted that I should reject the RTAG's advice and give this matter priority given that it seeks to address 'alleged NES and Fair Work Act breaches within [the Long Distance Award] - that may be operating in contravention of the National Employment Standards (NES)'. As I understand it, what the applicant means by this is that certain provisions of the Long Distance Award offend the requirement in s 55(1) of the FW Act that a modern award must not exclude the National Employment Standards (NES) or any provision of the NES and therefore have no effect by virtue of s 56 (although it is not clear whether the entirety of the application is brought on this basis). I consider that the applicant's contention to this effect should be given an earlier hearing than matters MS2024/1, MS2024/2, MS2024/3 and MS2024/4. This is for two reasons. First, if any provision of the Long Distance Award contravenes s 55(1) and is consequently of no effect, that is a matter that should be dealt with on a priority basis. Second, a hearing about this may be undertaken relatively quickly because it requires no more than an analysis of the impugned provisions of the Long Distance Award by reference to the provisions of the NES in the FW Act. Accordingly, I will make orders and directions for the hearing of this aspect of the applicant's case. If any part of the applicant's case is upheld, there will need to be a further hearing as to what variations should be made to the Long Distance Award to remedy this.

• [11] Consistent with the above, I direct pursuant to s 582(4D) of the FW Act that, in respect of matters MS2024/1, MS2024/2, MS2024/3 and MS2024/4, the Commission shall prioritise its work under Parts 3A-2 and 3B-2, including as to the types of any orders to be made under those Parts in respect of the cohorts of workers the subject of each of the applications, by hearing the matters in the following order: first, matters MS2024/1, MS2024/2, MS2024/3 together and, second, matter MS2024/4.

• [12] I make the following orders and directions with respect to matters MS2024/1, MS2024/2 and MS2024/3:

(2) An Expert Panel for the road transport industry is constituted to hear and determine these matters. The Expert Panel is comprised of myself, Vice President Asbury and Commissioner Connolly.

(3) The TWU shall, by 4:00 pm (AEDT) on Friday, 21 November 2025, file a draft of the minimum standards orders it seeks to be made in these matters.

(4) Any interested party may file, in response to the TWU's draft minimum standards order, any alternative draft minimum standards orders or guidelines, or any position paper setting out the party's position as to the making of any minimum standards orders or guidelines, by 4:00 pm (AEDT) on Tuesday, 16 December 2025.

(5) The matters will be listed for a further directions hearing at 9:30 am (AEDT) on Friday, 19 December 2025.

(6) The TWU, and any other party supporting the TWU's position, shall file their evidence and submissions by 4:00 pm (AEDT) on Friday, 27 February 2026.

(7) Parties opposing the TWU's draft minimum standards orders and/or advancing an alternative position in respect of minimum standards orders or guidelines are provisionally directed to file their evidence and submissions by 4:00 pm (AEST) on Friday, 12 June 2026.

(8) The following dates are reserved for hearing of the matters: 20-24 July, 27-31 July, 3-7 August and 10-14 August 2026.

(9) The parties have leave to apply for a Member of the Commission to conduct a conciliation process with respect to the matters.

• [13] In respect of matter MS2024/4, the following orders and directions are made:

(1) An Expert Panel for the road transport industry is constituted to hear and determine the matter. The Expert Panel is comprised of Vice President Gibian and Commissioners Tran and Sloan.

(2) The TWU shall, by 4:00 pm (AEDT) on Friday, 21 November 2025, file a draft of the road transport contractual chain order it seeks to be made in this matter.

(3) Any interested party may file, in response to the TWU's draft minimum standards order, any alternative draft road transport contractual chain order or guidelines, or any position paper setting out the party's position as to the making of any road transport contractual chain order or guidelines, by 4:00 pm (AEDT) on Tuesday, 16 December 2025.

(4) The matter will be listed for a further directions hearing at 9:30 am (AEDT) on Friday, 19 December 2025.

(5) The TWU, and any other party supporting the TWU's position, shall file their evidence and submissions by 4:00 pm (AEDT) on Friday, 27 February 2026.

(6) Parties opposing the TWU's draft road transport contractual chain order and/or advancing an alternative position in respect of a road transport contractual chain orders or guidelines are provisionally directed to file their evidence and submissions by 4:00 pm (AEST) on Friday, 10 July 2026.

(7) The following dates are reserved for hearing of the matter: 17-21 August and 24-28 August 2026.

(8) The parties have leave to apply for a Member of the Commission to conduct a conciliation process with respect to the matter.

• [14] In respect of matter AM2024/35, the following orders and directions are made:

(1) An Expert Panel for the road transport industry is constituted to hear and determine the matter. The Expert Panel is comprised of Vice President Gibian and Commissioners Tran and Sloan.

(2) The applicant shall file his submissions concerning any alleged exclusion of the NES by any provision of the Long Distance Award by 4:00 pm (AEDT) on Friday, 12 December 2025.

(3) Any other interested parties shall file their submissions in response to the applicant's submissions by 4:00 pm (AEDT) on Friday, 20 February 2026.

(4) The matter is listed for hearing at 10:00 am (AEDT) on Friday, 13 March 2026.

P Boncardo, counsel, for the Transport Workers' Union of Australia.

M Felman KC for DoorDash Technologies Australia Pty Ltd.

R Higgins SC with M Seck, counsel, for Portier Pacific Pty Ltd t/a Uber.

B Ferguson and S Kelleher for The Australian Industry Group.

J Arndt, solicitor, for Australian Business Industrial, Aramex, FedEx Express, Team Global Express and NSW Business Chamber Ltd.

E Hawthorne, solicitor, for Amazon Commercial Services Pty Ltd.

S Schmitke for the Australian Chamber of Commerce and Industry.

A Taylor appeared for himself and on behalf of L Hines, the applicant in matter AM2024/35.

1. [1] MA000039.
2. [2] [2025] FWC 216.
3. [3][2025] FWC 2605.
4. [4]See Fair Work Act 2009 (Cth) s 582(4A).

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