The Business Council of Australia (BCA) represents more than 120 of Australia’s leading businesses employing more than one million Australians. We welcome the opportunity to provide feedback on the proposed Ministerial determination under section 536PEA(3) of the Fair Work Act 2009 as amended by the Fair Work Amendment (Fairer Fuel) Act 2026.
The BCA recognises the significant cost pressures the entire economy, businesses and the community are facing due to the conflict in the Middle East and its flow on effects on the cost of fuel, and particularly diesel. In a country as large as Australia, road transport and fuel are critical. They enable services and goods to be moved across the breadth of the nation, keeping supply chains open, businesses operating and supermarket shops filled.
BCA members are at the frontline in dealing with these challenges. They recognise the sudden increase in fuel costs is having a negative impact on the road transport industry, and that is why many have already acted to assist those through their supply chains by increasing reimbursements, within the scope of their existing contractual arrangements.
We are concerned that the Ministerial determination, allowing the Fair Work Commission (FWC) to intervene urgently in road transport contractual chain matters, especially in its present form as drafted, is not the appropriate mechanism to address the issue at hand and will have unintended consequences.
At a principled level, each business contract is different, and therefore it would be more appropriate for those matters to be dealt with between the relevant contractual parties. We are also concerned that the FWC does not have commercial expertise to be intervening in contractual matters.
Moreover, the Middle East situation is changing on a daily, and sometimes, hourly basis. While the proposed determination will expedite the consideration of an application for a road transport contractual chain order, this may still not be as responsive as actions within the scope of existing contractual arrangements, as shown by the steps many of our members have already taken.
With respect to the proposed determination itself, we are concerned by its lack of clarity as evidenced by the following points:
- Does the circumstance in which the power can be exercised depend on both: (1) continued ‘significant reduction’ in shipping through the strait; and (2) conflict in the Middle East, or just one of those circumstances? For example, the addition of ‘both’ immediately before the circumstances in (a) and (b) would make matters clearer.
- Is the concept of ‘conflict’ multi-country or does it mean any war in the Middle East region, noting that this very large region has had many conflicts in recent history?
- The concept of ‘disruption’ to prices is also unclear. It would appear more aligned to the statutory purpose to limit the circumstance or event under which a determination can be made, to fuel prices remaining above a particular objective numerical figure for a particular period, in connection with the relevant circumstances.
Improved specificity on these matters would assist in providing stronger guardrails as to how the FWC would consider these matters. If our present circumstances are regarded as meeting the threshold for an emergency, definitional clarity would help ensure responsive actions are appropriate, proportionate and temporary.
Put simply, it is not in the public interest for a broad-based determination, which is meant to address an emergency, to be used to make long term structural changes to the sector.