The Fair Work Ombudsman can now send award errors back to the Commission to fix

On 21 July 2026 the President of the Fair Work Commission published a statement setting up something that hasn't existed before: a formal, annual channel for the Fair Work Ombudsman to hand the Commission a list of ambiguities, uncertainties and errors it has found in modern awards. Not competing opinions. Errors.

If you've ever been told that reading MA000009 correctly is simply part of running a venue, sit with that for a second. The regulator that enforces the award and the tribunal that writes it have jointly agreed the text contains enough genuine defects to justify a standing repair channel, reviewed every year.

Short version: the statement was published on 21 July 2026 by Justice Hatcher. The Fair Work Ombudsman will collate apparent ambiguities, uncertainties and errors in modern awards and send them to the Commission in the September quarter each year, starting with the September quarter 2026. The Commission can then use its power under section 160 of the Fair Work Act to vary an award on its own initiative. Referrals get published on the Commission's website with a public submissions process attached. None of this changes an obligation you have today. General information, not legal or financial advice.

What the Commission and the Ombudsman actually agreed

Section 160 of the Fair Work Act lets the Commission vary a modern award to remove an ambiguity or uncertainty, or to correct an error. It isn't new and it isn't theoretical. In May 2020 the Australian Hotels Association used it on MA000009, adding a note to clause 16.7 confirming that overtime worked doesn't compound the break entitlements in clause 16.2.

The gap the new arrangement fills is who gets to raise the problem. The President's statement says it plainly: the Fair Work Ombudsman has no standing under the Fair Work Act to apply to vary or revoke an award. It runs the Infoline, writes the guidance, investigates the underpayments and sees every place the words fall over in practice, and until now it had no way of taking any of that back to the tribunal except by joining someone else's case.

The regulator that answers your award questions has been watching modern awards misfire since they started, with no way to report it back. That is what changed on 21 July.

Why the timing matters more than the process does

Since 1 January 2025, intentionally underpaying wages or entitlements can be a criminal offence. An individual faces a maximum of 10 years in prison, plus a fine of up to the greater of three times the underpayment and $1.82 million. For a company the maximum fine is the greater of three times the underpayment and $9.1 million.

Line that up against an official acknowledgement that award text contains errors and it reads badly. It shouldn't. The offence turns entirely on intent, and the Ombudsman is explicit that it doesn't cover honest mistakes. Fair Work Ombudsman Anna Booth said so the week the laws started: "Genuine mistakes will not be prosecuted under the new criminal underpayment laws that commenced on 1 January."

So what protects you isn't getting every clause right. It's being able to show you tried. If you employ fewer than 15 people, the Voluntary Small Business Wage Compliance Code means the Ombudsman can't refer you for criminal prosecution where it's satisfied you've complied, and one of the listed factors is whether you sought information or advice from a reliable source. The Code names those sources: an employer association, a lawyer, a payroll service, the Ombudsman itself, or the Commission. Civil penalties still apply either way.

One MA000009 definition, worth $10.15 an hour

Here's the shape of the problem, using a clause most operators have wondered about at some point. Clause 13.5 says junior employees working as liquor service employees must be paid as an adult, at the classification rate for the work being performed. An 18-year-old on 100% instead of 70%. The whole question is who counts.

That isn't me hunting for a loophole. The Australian Hotels Association told the Commission during the Modern Awards Review that the definition causes confusion for employers when applying the adult rate of pay for juniors, and asked for a note spelling out the Ombudsman's list. Other employer representatives opposed the change on the basis that the definition is easily understood. Two employer bodies, opposite conclusions, same five words.

Now price it. From the first full pay period on or after 1 July 2026, an 18-year-old Level 2 casual on the junior rate is on $23.70 an hour for ordinary hours. The adult Level 2 casual rate is $33.85. Same kid, same shift, $10.15 apart.

$219.24 a week, on one 18-year-old working three shifts. Across a 46-week year that's roughly $10,100, and a venue that puts juniors on the floor rarely has just one. The safe move hasn't changed: if there's any real chance the person is selling or serving alcohol, pay the adult rate. If you want certainty, ask the Ombudsman in writing and keep the answer, because under the Code the asking itself counts in your favour.

What will get referred, and what won't

The two agencies published four Guiding Principles, and they're narrower than the headline suggests.

• Substantive problems only. The Ombudsman will refer something only where it considers the ambiguity, uncertainty or error has a substantive impact on an entitlement or obligation under the award.
• Not your argument with the union. It won't use the channel merely to raise competing interpretations among industry parties. Those go back to its own consultation process, or to a variation application someone files themselves.
• No preferred answer attached. When it does refer something, the Ombudsman won't offer its own interpretation of the affected provisions.
• The Commission decides. It forms its own independent view on whether a referral needs correcting, and if so how and when. A referral is not a fix, and it isn't a timetable.

That second principle is the catch, and it's worth being straight about. Most of what makes MA000009 hard to run isn't a drafting error. It's two defensible readings that reasonable people argue over, and the liquor service definition may well be judged exactly that. The Commission has already had a run at the wider problem: MA000009 was one of the awards examined in the Making Awards Easier to Use stream of the Modern Awards Review 2023-24, where parties filed proposals on everything from the definition of a rostered day off to the annualised wage calculation in clause 24.2. Referrals correct defects. They don't make a long award short.

What to do before the September quarter

1. Write down your three worst clauses. The ones your duty managers ask about again and again. For most venues it's classification levels, the meal break penalty and public holiday minimums. Our rundown of the MA000009 mistakes that cost venues the most is a reasonable starting list.
2. Ask in writing, and keep the reply. The Fair Work Infoline is 13 13 94 and the Ombudsman's online enquiry leaves a record. Seeking advice from a reliable source is a named factor under the Voluntary Small Business Wage Compliance Code, and a saved answer is the evidence that you did.
3. Pay the safer number while it's unclear. Where two readings exist and one pays more, the higher one isn't generosity. It's the cheap version of a back-pay bill.
4. Watch the Commission's site in the September quarter. Referrals get published there, and the Commission has said it intends to issue a statement seeking public submissions. If a hospitality clause lands on that list, you get a say, and so does your industry association.
5. Audit before someone else does. The Ombudsman has said a proactive payroll audit, followed by prompt back-payment and a fix to the system that caused it, is the kind of conduct that suggests compliance with the Code.

Where Shiftly fits

None of this helps much if you can't see what a roster costs until the pay run has already gone out. Shiftly is free workforce management for venues: it prices shifts against the award while you're building the roster, so classification levels, minimum engagements and public holiday minimums show up before payday instead of after it, and award-aware timesheets carry real break times through to approval. It's a calculation tool that helps you check your figures, not a compliance guarantee, and Shiftly doesn't run your payroll.

The other half of the problem is the shift you only rostered badly because someone called in sick at 4pm. Shiftly has an on-demand staffing network built into the roster, so a gap goes out to available staff nearby instead of turning into a rushed 90-minute call-in that breaches the minimum engagement anyway. That's the roster that fills itself. Get started with Shiftly.

Frequently asked questions

Does this change anything I have to do right now?

No. The referral process is an arrangement between two agencies about how award problems get raised, and it doesn't vary a single clause of MA000009 by itself. Your obligations on next week's roster are exactly what they were last week. What changes is that from the September quarter 2026 there'll be a published, annual list of award provisions the regulator considers defective, with a public submissions process attached to it.

Can I argue the award was ambiguous if I've underpaid someone?

Not as an answer to the underpayment itself. If someone was underpaid, the money is owed and recoverable no matter how confusing the clause was. Where ambiguity does matter is intent. The criminal underpayment offence that started on 1 January 2025 only covers intentional underpayment, and the Fair Work Ombudsman has said genuine mistakes won't be prosecuted. If you employ fewer than 15 people, the Voluntary Small Business Wage Compliance Code goes further: satisfy it and the Ombudsman can't refer you for criminal prosecution at all. Civil penalties and compliance notices remain on the table.

Can I refer an award problem to the Commission myself?

You can do better than refer it. Unlike the Ombudsman, an employer covered by a modern award has standing to apply directly under section 160 of the Fair Work Act to vary that award to remove an ambiguity or uncertainty or correct an error. That's precisely how the Australian Hotels Association got the break provisions in MA000009 clarified in 2020. In practice most operators go through their industry association rather than filing on their own.

Do I have to pay a junior the adult rate if they carry drinks to a table?

The Fair Work Ombudsman's published guidance says juniors who sell or serve alcohol, including as a part of their general waiting duties, must be paid the adult rate for their classification regardless of age, and its examples include serving alcohol to a seated customer in a restaurant and taking an order for alcohol from a customer. The award's own definition of a liquor service employee is narrower on its face, which is why the Australian Hotels Association asked the Commission for a clarifying note. Until that's settled, the low-risk course is the adult rate, plus a call to the Infoline on 13 13 94 about your specific setup. If you're still working out where people sit, our guide to MA000009 levels covers the classification half of the question.