Ashurst partner Peter McNulty says HR leaders must plan bargaining early as Fair Work Commission test cases reshape the rules
The independent review of Australia's Closing Loopholes reforms landed on the desk of Employment and Workplace Relations Minister Amanda Rishworth on 15 June 2026, confirming what many industrial relations practitioners have argued for months: the legislative changes themselves have largely settled, but how they play out in the Fair Work Commission and the courts is now the real battleground for employers.
That is the assessment of Peter McNulty, a partner in Ashurst's employment team, who spoke to HRD Australia ahead of his session at the Employment Law Masterclass Australia 2026, an online event running on 19 August.
McNulty's session, "The 2026 IR Playbook: Winning Strategies for the New Bargaining Landscape," will unpack how employers should be negotiating enterprise agreements under a framework that has moved from theory into lived practice.
"There have been huge changes over the last three or four years with various iterations of legislative changes to the Fair Work Act," McNulty said.
"I think it's fair to say now that the legislative changes have slowed, but now the implementation of those changes and what they mean in practice for HR and IR practitioners is really sort of starting to play out in a real way."
Reviews confirm the framework is here to stay
Former Fair Work Commissioner Susan Booth, who led the statutory review, published a draft report for stakeholder comment in May 2026, with the final version delivered to the minister in June ahead of tabling in Parliament.
McNulty said the substance of that draft signals employers should not expect the underlying mechanisms to be unwound.
"There have been reviews of the legislative tranches and they have largely endorsed the legislation for what it was setting out to achieve," McNulty said.
"So, I don't think we can expect significant sort of fixes or changes to the mechanisms that have been put in place. And now really it's watching those cases play out to see how the Fair Work Commission and the courts are then applying those changes in practice."
He pointed to the "same job, same pay" regime – formally the regulated labour hire arrangement order framework – as a clear example of a mechanism now generating real cost and compliance implications for employers, an issue HR technology leaders have separately flagged as a workforce visibility challenge.
"The implications of using alternate labour and the cost of using that alternate labour are now higher than they used to be," McNulty said, adding that a new statutory definition of employee has also made the use of contractors more complex than it once was.
Bargaining dynamics are shifting fast
McNulty said the balance of power in enterprise bargaining has moved, and employers preparing for negotiations need to understand several concurrent developments – a theme also explored in HRD Australia's earlier coverage of bargaining powers employers need to know.
Multi-employer bargaining, he said, "was probably a slow start, but there are now a few successful applications that have been made to pull employees together to bargain, including in sort of franchise context" – a trend that has already reshaped risk for sectors such as fast food and retail.
Intractable bargaining, where the Fair Work Commission can step in once negotiations stall, is also now a live consideration for employers timing their strategy. "Once nine months passes in bargaining, they need to be thinking carefully about what their strategies are for getting an agreement quickly," McNulty said.
He also flagged new workplace delegate rights and delegate facilities clauses now appearing in modern awards. "Through enterprise agreements, just how and what those rights actually look like in practice is going to be something that HR and IR leaders are going to need to sort of really focus on in the coming months," he said.
Disputes are inevitable, but planning reduces the risk
Asked whether HR and IR leaders are adequately equipped for this environment, McNulty said disputes are a natural consequence of employers and unions testing untested law.
"I think disputes and challenges are inevitable, where employers are grappling with new legislation which hasn't been tested, where the meaning and the intent of that legislation may not be clear," he said, noting that pressure on business productivity compounds the difficulty.
His advice for HR and IR leaders heading into the Masterclass session is to think well beyond the next bargaining round. "Industrial relations planning and strategy can't be looking in the near future," McNulty said.
"Leaders really need to be looking at two or three to four years ahead and thinking about what their organisations are going to look like at that point in time to inform their strategy going forward."
McNulty's full session at the Employment Law Masterclass Australia 2026 will explore negotiating enterprise agreements and managing industrial action, how new modern award terms such as work-from-home and delegate rights are reshaping agreements, and recent test cases on multi-employer bargaining, intractable disputes and labour-hire orders.
Details and registration are available via the Employment Law Masterclass Australia website.
