One of the most controversial changes coming out of the Closing Loopholes legislation is the newly enshrined rights and protections for workplace (union) delegates representing employees in the workplace under the Fair Work Act.
Understanding Union Delegates' Rights
A union delegate is an employee who is appointed or elected in accordance with the rules of a union to be a delegate or representative for the union in a particular business. They should not be confused with union officials or the rights of union officials. Whilst protections for union delegates are not new, what is new is setting out rights in detail in the Fair Work Act and extending the general protections regime to them.
Under the new provisions in the Fair Work Act, union delegates have the right to represent the interests of union members (and potential members), to reasonably communicate with employees and access workplace facilities. Employers (except for small business employers) must also give delegates access to paid time to participate in delegate training.
Inclusion in Modern Awards
In addition to the new union delegates’ rights and protection in the Fair Work Act, the Fair Work Commission (FWC) is required to vary all modern awards to include a new delegates’ rights term which covers the above rights by 30 June 2024. Enterprise agreements made on or after 1 July 2024 will also need to contain a union delegates’ rights term. Such a term will need to be as beneficial as the modern award term otherwise the modern award term will apply in substitution.
Modern awards are currently in the process of being varied to include a delegates’ rights term and AVÑо¿Ëù on behalf of Australian Business Industrial (ABI) and the NSW Business Chamber (BNSW) has been actively involved in the FWC proceedings.
FWC Draft Model Delegates’ Rights Term
On 10 May, the FWC its draft modern award delegates’ rights term, which it intends to insert into every modern award. Key highlights include:
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Representation: Workplace delegates will have the right to represent employees in various matters including consultation on workplace changes, bargaining, disciplinary processes and grievance resolution.
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Communication: Whilst workplace delegates will have the right to communicate with union members and prospective members including discussing union membership, delegates will not be entitled to employee contact details or lists.​
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Workplace facilities: Workplace delegates will have the right to access private meeting spaces, a noticeboard, email and other standard office facilities, however employers are only required to provide these facilities to the extent that they currently have them.
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Delegate Paid Training: The FWC has put limitations on the number of delegates entitled to paid training leave in a given calendar year. Under the draft term, employers will not be required to provide paid training leave to more than one workplace delegate per 50 eligible employees and the employer will not be required to provide more than 5 days of paid time during normal working hours for initial training and 1 day each subsequent year, to attend training related to representation of the industrial interests of eligible employees.
Notably, the FWC in its draft model term rejected many union claims opposed by AVÑо¿Ëù and other employer representatives, including that all delegates, each year be allowed to access up to 5 days paid training, workplace delegate access to employee lists and contact details and the provision of iPads.
Most critically, under the FWC’s draft delegates' rights term, workplace delegates will also be subject to a number of vital conditions when seeking to exercise their delegates rights, many of which respond to concerns raised by AVÑо¿Ëù during the FWC proceedings, including that:
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delegates must comply with their duties and obligations as an employee;
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delegates must comply with reasonable policies and procedures of their employer including in relation to safety and IT;
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delegates must not hinder, obstruct or prevent the normal performance of work; and
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delegates must not hinder, obstruct or prevent employees exercising their rights to freedom of association.
To read the full draft modern award delegates’ rights term, see the FWC President statement .
Next Steps
The FWC is currently seeking comments on its draft model delegates' rights term by midday, Friday 17 May 2024. The final terms will be inserted into all modern awards by 28 June 2024, effective from 1 July 2024.
As part of its ongoing involvement in these proceedings AVÑо¿Ëù will be providing comments on the draft model clause to the FWC.
AVÑо¿Ëù would welcome any thoughts or feedback you may wish to share about the model delegate rights term proposed by the FWC.
Please get in touch if you wish to share your input or further discuss with us the potential impact of the draft model delegates’ rights term on your business by emailing us.
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