The Fair Work Legislation Amendment (Closing Loopholes) Act 2023 (Cth) required the Fair Work Commission to vary modern awards to include a workplace delegates’ rights term. The new workplace right is now included in all 155 modern awards effective 1st July 2024.
The new clause provides for the exercise of the rights of workplace delegates set out in section 350C of the Act. View the new term here
Defining a Workplace Delegate
The Act defines a workplace delegate as a person appointed or elected, in accordance with the rules of an employee organisation, to be a delegate or representative for members of the organisation who work in a particular enterprise. The workplace delegate is entitled to represent the industrial interests of those members, including in disputes with their employer
The Act also provides specific rights and protections for workplace delegates, including:
- Representation and Communication: Delegates have the right to represent union members and potential members in industrial matters, including disputes with employers. They can communicate with these employees about their industrial interests during work hours or breaks
- Access to Workplace and Facilities: Delegates must be granted reasonable access to their workplace and facilities. This includes access to private meeting areas, noticeboards, communication systems, secure document storage, and office equipment like printers and photocopiers.
- Paid Training Leave: Delegates (except in small businesses) are entitled to up to five days of paid training leave annually, with certain conditions on notification and approval processes. Only one delegate per 50 employees can access this leave
- Employer Obligations: Employers must not unreasonably obstruct or hinder delegates in their roles and must ensure that delegates continue to meet their usual work duties. There are also protections against misleading representations or unreasonable refusals to engage with delegates
- Implementation and Compliance: Employers need to update payroll systems for the new training leave, ensure appropriate workplace facilities are available, and provide training to managers and supervisors on these new rights to ensure compliance and avoid disputes.
Enterprise Agreements
A workplace delegate rights clause must be included in all enterprise agreements made from 1 July 2024. The Fair Work Commission (FWC) states you can either use the delegates’ rights term provided in the relevant modern award, or create your own delegates’ rights term. However, if you create your own term, it must be at least as favourable as the delegates’ rights term in the relevant modern award. If a delegates’ rights term in the enterprise agreement is less favourable than the delegates’ rights term in one or more modern awards that cover the workplace delegates, the term in the enterprise agreement has no effect. Instead, the most favourable term of those in the modern awards, as determined by the FWC, will apply as a term of the enterprise agreement.
Next Steps:
- Read and understand the scope of the workplace delegates right in the award(s) applicable to your business
- Train supervisors and managers with practical information about how the delegates’ rights may apply to your workplace. This will help prevent any violations of the obligations in the terms and avoid disputes about what constitutes reasonable access to facilities or communication.
- Make sure that all payroll systems are up to date and equipped to process requests for paid delegate training leave.
If you have a workplace delegate in your business:
- Assess how the company can provide reasonable access to electronic communication systems without disclosing sensitive or confidential commercial or employee information.
- Ensure that the workplace has fit-for-purpose facilities that can accommodate delegate meeting requests;Assess whether any enterprise agreements that may apply to employees have an existing ‘workplace delegates’ or ‘employee representatives’ term that may contradict the term or that may need updating for ‘better off overall test’ purposes at the next round of bargaining; and
- Ensure that delegates and eligible employees are aware of the conditions attached to the exercising of the new delegates’ rights so that delegates and employees are fully aware of what constitutes acceptable and unacceptable conduct.
Further Information:
For further details and tailored advice on how these changes impact your organisation, contact Maguire Legal.