On 25 May 2026, the Expert Panel of the Fair Work Commission (the Expert Panel) conducted a review hearing of the road transport contractual chain order (RTCCO). The hearing was an opportunity for interested parties to ventilate interpretation and operational issues they have encountered since the RTCCO commenced operation on 21 April 2026.
See our recent article for a summary of issues discussed:
The review of the FWC’s Fuel Cost Recovery Order – confusion remains and an opportunity lost
Revised draft RTCCO
Following the review hearing, on 29 May 2026 the Expert Panel publishing a revised draft RTCCO for consultation [see our article for a summary of the terms of the revised RTCCO – Draft order released: some clarity, more confusion].
While the draft revised RTCCO sought to remedy some of the existing ambiguity with the order, those revisions did not address many of the issues that were raised during the review hearing. Some of the important issues for business in interpreting and applying the RTCCO remain unclear, despite those revisions and in light of a continuing lack of detailed guidance from the Expert Panel or the Fair Work Ombudsman.
The Expert Panel initially requested that parties make any submissions on the draft revised RTCCO by 4 June 2026. It subsequently extended the time for submissions to 9 June 2026 and with further dates for submissions in reply. At least one employer association has now been given until 15 June 2026 by the Expert Panel to file its submissions on the revised RTCCO.
As such, no decision on the draft revised RTCCO can be expected from the Expert Panel until Tuesday, 16 June 2026 at the earliest.
When does the RTCCO cease to operate?
Clause 5.3 of the RTCCO provides that the “obligations in clause 4… will cease to apply if the weekly average national termination gate price for diesel, as measured by the weekly diesel price report of the Australian Institute of Petroleum, falls below $2.00 per litre”.
One of the few proposed revisions, proposed by the Expert Panel at the suggestion of the Transport Workers Union of Australia (TWU), was to amend clause 5.3 of the RTCCO so that “the obligations under clause 4 do not cease to operate on a single week’s average and will only cease to operate if at least four consecutive weeks of TGP national averages are less than $2.00”.
Importantly though, the extension of the time for the filing of submissions, and the resulting delay in the Expert Panel finalising its position in relation to the draft revised RTCCO, has created a significant issue for the Expert Panel and all interested parties to grapple with.
In the week ending 5 June 2026, the weekly average national terminal gate price for diesel, as measured in the weekly diesel price report of the Australian Institute of Petroleum, fell to $1.89 per litre. For the week ending 12 June 2026, the diesel price rose slightly to $1.90 per litre. With the agreement announced on 15 June 2026 reached between the United States, Iran and others, to end the Middle East conflict and to re-open the Straits of Hormuz, diesel fuel prices can only be expected to fall further in the short to medium term once normal fuel supply chains are reestablished.
This drop in price is significant, because based on the terms of the current RTCCO, the various obligations imposed on primary and secondary parties under the RTCCO have now ceased to apply (under the terms of the existing clause 5.3). If the current RTCCO has ceased to apply, then any proposed variations to the RTCCO become otiose.
To be of any effect, the proposed revision to the RTCCO to require the weekly average price for diesel to fall below $2.00 per litre for four consecutive weeks for the RTCCO to cease to apply (which would not yet be triggered), would now need to be made retrospectively and arguably would require the now expired RTCCO to be “revived” by the Expert Panel. Parties can only hope that the Expert Panel clarifies the position as soon as possible, especially given that the Fair Work Ombudsman has acknowledged this uncertainty on its website [Fuel cost recovery: Road transport order issued - Fair Work Ombudsman].
In publishing the draft revised RTCCO, the Expert Panel did acknowledge that $2.00 “might not necessarily signal the end of the emergency situation, including because of temporary changes to excise duties”. This statement perhaps signals the Expert Panel’s likely intention of keeping the obligations on primary and secondary parties in place in some form, but the issue then becomes how it can do so.
If the Expert Panel is in favour of continuing those obligations, then it will need to satisfy itself that:
- it has the power to make the RTCCO operate retrospectively;
- it will need to consult parties before issuing a new draft order; or
- it may need to propose new or different revisions to the RTCCO which will in turn require further consultation and submissions.
Next steps
Given all of the above, the Expert Panel needs to fix this problem as soon as possible, so business can move ahead with at least certainty as to whether the RTCCO still applies.
In the meantime, if you have any interpretation or implementation issues with the RTCCO, please reach out to one of your key contacts.
