1 July, 2024

New Rights for Workplace Delegates

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Recent additions to the Fair Work Act 2009 (Cth) (“FW Act”) include general protections for workplace delegates; and for modern awards and enterprise agreements to include a term on workplace delegates’ rights.

 


What is a Workplace Delegate?

Workplace delegates (often called ‘union delegates’) are employees who are appointed or elected to be a delegate in accordance with a union’s rules.[1]  The specific method of appointment/election for a delegate may therefore vary from union to union.

If you are unsure about which employees may be officially appointed union delegates, a reasonable starting point would be to ask the relevant union.

Changes to the FW Act

Parliament last year passed (the first half of) the Fair Work Legislation Amendment (Closing Loopholes) Act 2023 (Cth), which made various amendments to the FW Act,[2]including in relation to workplace delegates’ rights.  This included new general protections for workplace delegates, including forbidding employers from:[3]

  1. unreasonably failing or refusing to deal with a workplace delegate;
  2. knowingly or recklessly making a false or misleading representation to a workplace delegate; or
  3. unreasonably hindering, obstructing, or preventing the exercise of a workplace delegate’s rights.

The general rights given to a workplace delegate under the FW Act include:[4]

  1. the entitlement to represent the industrial interests of members (and eligible members), including in disputes;
  2. reasonable communication with members (and eligible members) in relation to those members’ industrial interests;
  3. reasonable access to the workplace and workplace facilities where business is carried out;
  4. other than for small business employers, reasonable access to paid time during normal working hours for the purposes of delegate-related training.

When determining what is reasonable, regard must be given to the size and nature of the enterprise, the employer’s resources, and the available facilities at the workplace.

If a modern award or enterprise agreement applies to the workplace delegate, complying with that term will taken have afforded the delegate their rights.

Model Award Clause

The Fair Work Commission has determined a model clause for modern awards, which includes the following rights and obligations.[5]

  1. Before exercising a particular delegate-related right, the delegate must give their employer written notice (and—if requested—evidence) of their appointment as a workplace delegate.
  2. The delegate has a right to represent members in matters such as consultations under the award, resolution of disputes, disciplinary processes, enterprise bargaining, and any other processes/procedures where a person is entitled to be represented.  The delegate has no right to represent a person without the person’s agreement.
  3. The delegate may communicate with employees before, during, and after work (including during breaks), about membership or any matter for which the delegate is representing the employee(s).
  4. The delegate may have use or access to workplace facilities that the employer has (with some exemptions), such as a room for discussions with employees, a physical or electronic noticeboard, electronic means of communication that the employer would ordinarily use to communicate with employees (though not in a way that provides individual contact information for eligible employees), a secure document storage area, and office facilities and equipment (such as a photocopier).
  5. Other than for small business employer, the delegate will be entitled to up to 5 paid days during normal working hours for initial delegate-related training (and 1 day each subsequent year for follow-up training).  The employer is only required to provide this to one delegate per 50 employees.  The delegate must give at least 5 weeks’ notice of dates, subject matters, and daily start/finish times for the training (and an outline of the content if the employer requests it), and the employer must advise the delegate no later than 2 weeks before the training is set to start whether the time is approved (which cannot be unreasonably refused).  The delegate must give evidence of attendance within 7 days of finishing the training.

Delegates are still required to comply with their employment obligations (including policies, procedures, and work health and safety) and must not hinder or obstruct the ordinary performance of work.

38 of the modern awards (including the Manufacturing and Associated Industries and Occupations Award 2020) also include a provision clarifying that if another part of the award provides an entitlement to a workplace delegate which is more favourable, the more favourable term will apply.

Enterprise Agreements

Workplace delegates’ rights clauses are relatively common in enterprise agreements, especially in the more union-dense industries.  It is now compulsory for an enterprise agreement to include a workplace delegates’ rights clause—even for employers who have no union members.[6]

Enterprise agreements approved after 1 July 2024 must have delegates’ rights clauses which are no less favourable than the equivalent modern award term.  If it is less favourable, the enterprise agreement term will have no effect and the modern award term will taken to be a term of the agreement.

If your enterprise agreement was approved before 1 July 2024, only the general protections rights and the delegates’ rights term in your enterprise agreement (if any) will apply—the modern award term has no application unless your enterprise agreement is varied.

Next Steps for Employers

Employers will need to review their applicable instruments (and the new general protections) and ensure they are affording any union delegates their rights.  While the new rights afforded to delegates are quite broad, most still involve a test of reasonableness (based on matters including the employer’s resources).  Managers should be made aware of a delegate’s rights to avoid non-compliance.

Enterprise agreements currently being negotiated will need to consider delegates’ rights.

If you are unsure what these new terms will mean for your business, you should seek specific advice.

Require further information/assistance?

This EMA Note is not comprehensive advice about your situation and does not cover all your obligations.  If you require further information or advice, please contact your Consultant.

 


 

[1] Fair Work Act 2009 (Cth) s 350C(1).

[2] See our previous EMA Note here.

[3] Fair Work Act 2009 (Cth) s 350A.

[4] Fair Work Act 2009 (Cth) ss 350C(2), (3).

[5] Variation of modern awards to include a delegates’ rights term [2024] FWC 1699.

[6] Fair Work Act 2009 (Cth) s 205A(1); Explanatory Memorandum, Fair Work Legislation Amendment (Closing Loopholes) 2023 Bill (Cth) 120 [707].

 


EMA Consulting is not a law firm and therefore does not provide legal advice or services. The information contained within this document and associated material is general in nature and should not be relied upon. If you require specific advice on a particular matter, we recommend that you contact EMA Consulting on 08 8203 1700. Subject to the matter at hand, your EMAC Consultant may recommend that you obtain formal legal advice. If formal legal advice is required, upon your written instruction EMAC will brief your matter to a legal practitioner for this purpose. The contents of this document and associated materials do not represent legal advice.NEW RIGHTS FOR WORKPLACE DELEGATES

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