As part of the Closing the Loopholes Amendments to the Fair Work Act 2009 (Cth) (the Act) which received royal assent on 14 December 2023, there are a number of changes to workplace delegates’ rights. Employers need to be aware of these rights, especially when managing employee representation in the workplace, ensuring they are complying with new leave, communication and access obligations and when negotiating a new enterprise agreement.
The rights are:
- new rights and protections for workplace delegates that applied from 15 December 2023;
- a delegates’ rights clause which has been added to awards and any new enterprise agreements from 1 July 2024; and
- extending workplace delegates’ right to regulated workers from 26 August 2024.
Workplace delegates
A workplace delegate, commonly referred to as a union representative, is an employee that is a member of a trade union, and who in accordance with the union’s rules has been appointed or elected to be a delegate or representative in industrial matters for a particular enterprise.
Such industrial matters may include consultation about major workplace change, dispute resolution, disciplinary processes, enterprise bargaining, and any other occasions where an award, agreement, or workplace policy provides a staff member the entitlement to representation.
New rights
Since 15 December 2023, delegates’ rights have been added to the Act, to prevent employers from taking adverse action against delegates because they are a delegate.
This means that delegates can now make a general protections claim pursuant to section 346 of the Act on the basis that they were subjected to adverse action (for example, dismissal) because they exercised a workplace right by carrying out their delegate role.
Workplace delegates are further protected with specific rights pursuant to section 350A which provides that employers of a workplace delegate are prohibited from:
- unreasonably failing or refusing to deal with them in their delegate role;
- knowingly or recklessly making a false or misleading representation to them; and/or
- unreasonably hindering, obstructing or preventing their ability to exercise their delegate’s rights under the Act, a modern award or an enterprise agreement.
In addition, under section 350C, delegates have an entitlement to:
- reasonable communication on matters related to the industrial interests of those they represent, which may occur during working hours or work breaks, or before the start or after the end of work;
- access the workplace and available workplace facilities of the particular enterprise, so far as is reasonably practicable, with examples of such facilities to include a physical or electronic noticeboard, electronic means of communication, Wi-Fi, a lockable filing cabinet or other secure document storage area, office facilities and equipment including printers, scanners and photocopiers; and
- be afforded reasonable access to paid time, during normal working hours, for the purposes of related training.
While the Act does not specify a quantum of training days, it does provide criteria for determining how many days would be ‘reasonable’, such as the size, nature, resources, and facilities of the enterprise, and also the resources of the individual delegate. The entitlement to training does not extend to workplace delegates employed by a small business employer as defined at section 23 of the Act.
Those covered by a modern award are entitled to five days of paid training during normal working hours for initial training, and at least one day each subsequent year. Awards specify that delegates must provide the employer at least five weeks’ notice of the training, noting that while time off for the training will be subject to employer approval, it must not be unreasonably declined.
Award free employees derive their entitlements from the Act.
Modern awards and new enterprise agreements
Since 1 July 2024, all modern awards have been amended to include a delegates’ rights clause and new enterprise agreements must also contain this clause.
The delegates’ right clause in modern awards covers the rights set out in section 350C of the Act.
The list of mandatory clauses in enterprise agreements has also been extended to include a workplace delegate’s rights clause, pursuant to section 205 of the Act. This means that a new agreement without a delegate’s rights clause will likely not be approved by the Fair Work Commission. If an agreement is put to the Commission without a delegates’ rights clause, we expect that the approval decision will provide that the workplace delegates’ clause in the underlying modern award will apply.
If an agreement has a delegates’ rights clause that is less favourable than the relevant modern award, the clause will have no legal standing, and instead the relevant award clause will apply.
Regulated workers
From 26 August 2024, delegates’ rights will also be extended to apply to ‘regulated workers’, which includes ‘employee like’ workers performing digital platform work and regulated road transport contractors. Regulated workers will derive their entitlements from the Act.
Practical application
In light of these changes, employers covered by a modern award are encouraged to take proactive steps such as training the people and culture team, payroll team, and those in managerial positions on the new delegates’ rights provisions and updating internal policies (particularly those relating to industrial matters). When drafting new enterprise agreements, employers should insert the new mandatory clause either based on the clause in the award or preparing its own clause (provided that it is no less favourable than that in the underlying award).
Given the new definition of a workplace delegate in the Act, employers may see an increase in workplace delegates (appointed or elected in accordance with the relevant union’s rules) seeking to represent employees in various workplace matters such as disciplinary processes.
How we can help
For advice in relation to workplace delegates’ rights and the impact on your business, please contact a member from our Workplace Relations, Employment and Safety team.
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