2025 at the Fair Work Commission: More Claims, Less Patience

Why process became the whole case, and what 2026 will demand

Justin Prince — Founder and Managing Director at LevelUp
Date: 5 January 2026 (Australia/Perth)
Published by Justin @ LevelUp | www.askfrank.com.au

Reality vs Hype: The law did not change. Enforcement did.

If you followed workplace news in 2025, you could be forgiven for thinking the Fair Work Commission spent the year rewriting the rules. It did not. What changed was how hard the Commission applied rules that were already there, at the same time as application volumes climbed. When a tribunal is under that kind of pressure, it stops humouring people who “sort of” complied. It becomes more like a bouncer at 1:30am. You either meet the entry requirements, or you are not getting in.

That is the real story running through the 2025 FWC Bulletins. This was not a year of flashy new doctrine. It was a year where employers were rewarded for disciplined, evidence-backed decision-making, and punished for thinking a strong business view can patch over weak process. It cannot.

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The 2025 backdrop: volume and velocity shaped everything

The Commission’s own reporting in late 2025 made clear that workload pressure is not just background noise. It is shaping how matters are managed, and how quickly weak cases are filtered. Justice Hatcher’s statement about reforms to the general protections dismissal process is basically the Commission saying, politely, “we are drowning, so we are changing the way we swim.” (FWC)

The practical point for employers is simple. A high-volume system becomes less tolerant of sloppy pleadings, late material, and vague explanations. That cuts both ways. If you are organised and document-heavy in the good way, you can do well in a system that wants to move quickly. If you are improvising, or building the file after the event, the Commission is unlikely to carry you.

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Flexible work: you can refuse, but only if you follow the Act’s script

A lot of employers still treat flexible work requests as something like a “reasonableness discussion”. That mindset is increasingly dangerous. The Commission is treating flexible work requests as what they are: a statutory decision-making framework with required steps.

The best illustration is the Full Bench decision in Naden v Catholic Schools Broken Bay Ltd. The employer had operational reasons. The refusal still failed because the Full Bench focused on whether the employer complied with the required refusal process, including properly turning its mind to the consequences for the employee. In other words, a refusal is not lawful because you feel it is sensible. It is lawful only if you can show you did what the Act requires. (FWC)

If you want a simple way to explain this to a leadership team, try this: the Commission is not marking your flexible work refusal like an essay. It is marking it like a pre-flight checklist. Miss a step and the plane does not take off.

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Dismissals: evidence beats policy, and practice beats both

The dismissal decisions highlighted in early 2025 are a good reminder that the Commission is rarely impressed by aspirational documents. A policy can help, but only if it matches what happened in the real world, and only if the employer can prove the steps it says it took.

Take Lambert v Ducala Pty Ltd trading as Northpoint Toyota. The issue was capacity, and whether holding a driver’s licence was an inherent requirement. The employer succeeded because the case was built with proper supporting detail. The role required a licence, the licence was suspended, and the employer could show it could not reasonably accommodate alternative duties. It was not a vibes-based decision. It was an evidence-based one. (FWC)

Now look at Merry v Swisstec Investment Holdings. That matter is a useful warning shot for employers who treat payroll or communication failures as minor admin issues. The Commission accepted that the employer’s non-payment of wages, lack of direction, and lack of engagement contributed to a forced resignation finding. If you let a relationship rot through silence and non-payment, you can end up with an unfair dismissal problem even if nobody ever said the words “you are fired.” (FWC)

And for anyone still sending termination emails late at night and hoping the “effective date” conveniently starts counting then, Clark v The Trustee For Pausco Trust is worth a read. The Commission dealt carefully with when a dismissal email takes effect, and the decision also sits in the modern context where after-hours contact is no longer something employers should casually assume is read and actioned. (FWC)

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Procedure and fairness: even when you are technically right, you can still lose

A quieter, but very employer-relevant theme in 2025 was procedural fairness, including procedural fairness inside Commission proceedings themselves. One of the Full Bench matters summarised in the May 2025 Bulletin concerned a dismissal of an application at a preliminary stage after directions were not met. The Full Bench criticised the way an email direction effectively became a “guillotine” with little practical opportunity to comply, and found procedural fairness problems in how the matter was handled. (FWC)

That matters because it reinforces what the Commission will and will not reward. The Commission wants cases to move, but it does not want ambush. If an employer’s litigation strategy relies on technical traps rather than clear merits and clean process, it is a brittle strategy. It might work once. It might not survive an appeal.

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Labour hire and “same job, same pay”: 2025 built the machinery, 2026 will copy and paste it

The most commercially significant strand of 2025 was regulated labour hire. The Bulletins and the Commission’s major case pages show the regime shifting from “new and theoretical” to “operational and expensive.”

The big signal is the Full Bench RLHAO decisions connected with BHP Coal operations and multiple labour providers. The Commission’s decision material makes clear that if the factual picture looks like labour supply integrated into host operations, the label “service” does not save you. It is the substance that matters, including control, integration, and pay outcomes. (FWC)

Alongside that, the Mining and Energy Union’s major RLHAO applications, including the Mt Arthur Coal related proceedings, show how the regime is being used strategically and repeatedly. If you rely on labour hire in a way that looks like “same work, same crew, materially lower pay”, you are not in a grey zone. You are in the part of the pool where sharks have already started circling. (FWC)

The 2026 prediction here is not bold or mysterious. It is repetition. Once applicants know what fact patterns succeed, applications become easier to bring, and defending them becomes less about clever argument and more about whether your model genuinely differs in substance.

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Casual conversion and other “useful but not glamorous” jurisdiction calls

Not every trend is a headline-grabber, but some of the most useful decisions for employers are the ones that clarify jurisdiction and utility. Arachchi v Adecco Industrial Pty Ltd is one of those. The Commission dealt with whether a casual conversion dispute had jurisdiction and utility after employment had ended, and it is the kind of decision that helps employers understand when a claim is live, and when it is effectively a request for an advisory opinion. (FWC)

Similarly, bargaining and protected action machinery continues to produce decisions where technical steps matter. The RTBU protected action ballot correction attempt, involving Transdev and Great River City Light Rail, is a reminder that you cannot always fix a foundational error after the fact just by calling it a “correction.” Sometimes the statute says “too late,” and the Commission will enforce that. (FWC)

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What employers should focus on in 2026

If 2025 was the year process started deciding outcomes more often than people expected, 2026 looks like the year employers will need systems that make good process unavoidable.

General protections dismissal claims will remain a dominant feature, and the Commission has already moved to reform how it case-manages them because the volume is so high. Employers should treat that as a signal that GP matters will be pushed harder, triaged earlier, and punished more quickly if the employer’s evidence is unclear or retrospective. If your lawful reasons are not documented before the decision is taken, you are walking uphill in thongs. (FWC)

Flexible work disputes will likely keep increasing because they sit at the intersection of culture, management capability, and statutory requirements. After Naden, refusals that do not show the required steps, including dealing with employee consequences, will remain vulnerable. (FWC)

Labour hire is the big dollars risk. If your model depends on a pay gap for labour doing the same work under host systems, you should assume it is contestable. Decide now whether you are going to redesign, absorb, or exit that risk. What you should not do is pretend it is someone else’s problem, right up until it becomes your cost line.

Finally, expect tighter case management across the board. A tribunal under pressure wants parties who help it move. That means deadlines matter, documents matter, and arguments need to be anchored in evidence rather than indignation.

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Final word from the IR Geek

2025 did not invent new law. It enforced existing law with a harder edge.

You can still run your business. You can still refuse requests. You can still dismiss and restructure. But the Commission is making one thing clear: if you want to do those things safely, you must be able to prove what you did, why you did it, and that you followed the steps the statute requires.

In 2026, “it made sense at the time” is not a defence. Evidence is.

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References and illustrative decisions

Flexible work (refusals and the compliance framework)

• Naden v Catholic Schools Broken Bay Ltd (Full Bench), summarised in FWC Bulletin Volume 5/25 (1 May 2025). (FWC)

Unfair dismissal (merits, capacity, harshness, remedies)

• Lambert v Ducala Pty Ltd trading as Northpoint Toyota [2025] FWC 239 (28 January 2025), FWC Bulletin Volume 2/25. (FWC)
• Conicella v MSS Strategic Medical and Rescue Pty Ltd t/a MSS [2025] FWC 58 (8 January 2025), FWC Bulletin Volume 2/25. (FWC)
• Khan v Step Up Disability Services Pty Ltd [2025] FWC 922 (2 April 2025), FWC Bulletin Volume 5/25. (FWC)
• Nugent v Queensland Rail [2025] FWC 835 (26 March 2025), FWC Bulletin Volume 5/25. (FWC)

Dismissal mechanics (effective date, extensions of time, after-hours communications)

• Clark v The Trustee For Pausco Trust (extension of time, effective date of dismissal, after-hours email context), FWC Bulletin Volume 5/25. (FWC)

Constructive dismissal and wage non-payment risks

• Merry v Swisstec Investment Holdings [2025] FWC 72 (9 January 2025), FWC Bulletin Volume 2/25. (FWC)

Casual conversion (jurisdiction and utility)

• Arachchi v Adecco Industrial Pty Ltd [2025] FWC 27 (6 January 2025), FWC Bulletin Volume 2/25. (FWC)

Protected action ballot orders (procedural gateways and “correction” limits)

• Australian Rail, Tram and Bus Industry Union v Transdev Sydney Pty Ltd t/a Transdev Sydney; Great River City Light Rail Pty Ltd [2025] FWC 169 (17 January 2025), FWC Bulletin Volume 2/25. (FWC)

Regulated labour hire arrangement orders (same job, same pay architecture)

• Full Bench RLHAO decision material, BHP Coal related proceedings, including [2025] FWCFB 188 (and associated directions and documents). (FWC)
• MEU major case page for RLHAO proceedings (including Mt Arthur Coal related application context). (FWC)

Commission process reform context (why 2026 tightens further)

• President’s Statement, “reforms to general protections dismissal application processes” (12 November 2025). (FWC)

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This article provides general information, not legal advice.