Union delegates’ rights term inserted into Modern Awards from 1 July 2024

Following the introduction of the Fair Work Legislation Amendment (Closing Loopholes) Act 2023 (Cth) (Closing Loopholes Act), the Fair Work Commission (FWC) has included entitlements for workplace delegates in all modern awards from 1 July 2024. The Closing Loopholes Act also requires enterprise agreements made on or after 1 July 2024 to include a delegates’ rights term.

Following consultation with unions and employer groups, a majority decision of the FWC decided that all modern awards will include the workplace delegates’ term from 1 July 2024.

A summary of the new delegates rights term is set out below.

Right of representation

• Workplace delegates have the right to participate in consultations concerning major workplace changes. This includes discussions on significant organisational restructuring, technological implementations, or changes in operational procedures that may impact employees’ working conditions. Similarly, workplace delegates have the right to participate in consultations regarding changes to employee rosters or working hours.
• Workplace delegates can represent employees during disciplinary proceedings. This involves ensuring fair treatment, adherence to procedural fairness, and representing the interests of the employee in question to mitigate unfair disciplinary actions.
• Delegates who have been appointed as bargaining representatives under section 176 of the Fair Work Act 2009 (Cth) or who assist their organisation in enterprise bargaining have the authority to negotiate employment conditions, wages, and other workplace entitlements on behalf of eligible employees.

Entitlement to reasonable communication

• Workplace delegates have the right to communicate directly with employees who are either a member of the delegate’s organisation (such as a union) or potential members of the organisation to which the delegate belongs. This includes discussing membership in the delegate’s organisation, informing employees about their rights, and addressing concerns related to workplace conditions.
• Delegates can engage in communication with employees during regular work hours or designated breaks. Delegates are also allowed to communicate with employees outside normal working hours. Allowing for discussions that might be more productive addressing employees’ concerns effectively.
• Communication rights extend to discussing and representing employees’ industrial interests. Delegates can address matters such as workplace changes, disputes, disciplinary procedures, and enterprise bargaining negotiations.
• Delegates can inform and encourage eligible employees to join their organisation. This includes explaining the benefits of membership, rights associated with union representation, and how it can positively impact workplace conditions.

Entitlement to reasonable access to the workplace and workplace facilities

• Employers must now provide delegates with access to suitable facilities for discussions, noticeboards, electronic communication tools (including Wi-Fi), and office equipment.
• Workplace delegates are entitled to access a suitable room or area within the workplace. This space is to be used for private discussions with eligible employees regarding workplace issues, grievances, or collective concerns. The room must be fit for purpose, private, and accessible to both the delegate and employees.
• Delegates are entitled to use office facilities and equipment necessary for their roles. This may include access to printers, scanners, photocopiers, and other office supplies essential for preparing materials, distributing information, or conducting administrative tasks related to their representation duties.
• Access to facilities may be subject to practical limitations or operational requirements. For instance, if a workplace does not have a specific facility, or if providing access at a particular time poses operational challenges, the employer may be exempt from providing immediate access.

Entitlement to reasonable access to training

• Delegates are now entitled to up to 5 days of paid time per year for training related to their role, with conditions like prior notice and employer approval.
• Workplace delegates are entitled to up to 5 days of paid time off during normal working hours for initial training. This training is designed to equip delegates with the necessary knowledge and skills to effectively fulfill their role as representatives of employees’ industrial interests.
• Following the initial training period, delegates are entitled to at least one paid training day each subsequent year. This ongoing training ensures that delegates stay informed about developments in employment law, negotiation techniques, workplace relations, and other relevant areas that impact their role.
• There are some conditions and limitations to when workplace delegates are entitled to these entitlements:
  • Notice requirements: Delegates must provide the employer with at least 5 weeks’ notice of their training dates, subject matter, daily start and finish times, and the name of the training provider.
  • Approval process: Employers must respond to training requests within 2 weeks of receiving notice. Approval cannot be unreasonably withheld, ensuring that delegates can access their training entitlements in a timely manner.
• Delegates receive payment for the hours they would have otherwise worked if not attending training.
• Delegates must provide evidence of their attendance at training within 7 days after completing the training. This may include certificates of completion or attendance records.

Contravening these new workplace delegate rights could cause the employer to be found liable under the general protections provisions of the Fair Work Act

Further to these new rights, there are now general protections for workplace delegates. An employer of a workplace delegate must not:

• Unreasonably fail or refuse to deal with the workplace delegate;
• Knowingly or recklessly make a false or misleading representation to the workplace delegate; or
• Unreasonably hinder, obstruct or prevent the exercise of the workplace delegate’s rights under the Fair Work Act or a fair work instrument (such as an award or enterprise agreement)

Delegates must notify their employer in writing of their appointment or election and provide evidence if requested. Delegates must comply with their duties as employees and with the employer’s reasonable policies, including occupational health and safety. Delegates cannot obstruct normal work activities or prevent employees from exercising their rights to freedom of association.

The FWC has decided to implement this term across all Modern Awards with plans for review after 12 months to address any operational issues or concerns.

If retailers have questions about union delegates’ role in the workplace or union right of entry, please call our workplace relations hotline on 1800 RETAIL (738 245).