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Amendments to the Fair Work Act 2009 (Cth) (FW Act) introduced by the Fair Work Legislation Amendment (Closing Loopholes) Act 2023 (Cth), required modern awards to include a term that provides for the exercise of the rights of workplace delegates.

The Fair Work Commission (FWC) was required to develop the model workplace delegates’ rights term to be inserted into the modern awards. The FWC recently settled on the model term and the modern awards have now been varied to include this term.

Who can be a workplace delegate?

The model clause provides that the delegates have rights with respect to “eligible employees”. Eligible employees are defined to mean members and persons eligible to be members of the delegate’s organisation (i.e. a union).

The model term helpfully provides that before a workplace delegate can exercise any entitlements, written notice must be given to the employer that the employee has been appointed to, or elected as, a workplace delegate. The employer can request evidence that would satisfy a reasonable person of the appointment or election as a workplace delegate.

Equally, an employee must provide written notice to the employer if they cease to be a workplace delegate within 14 days.

What rights do workplace delegates have?

1) Representation

The model clause provides that a workplace delegate may represent the industrial interests of eligible employees in matters including:

• consultation about major workplace change;
• consultation about changes in roster or hours of work;
• dispute resolution;
• disciplinary processes;
• enterprise bargaining (where the delegate is appointed as a bargaining representative or is assisting the union with enterprise bargaining); and
• any process or procedure within a modern award, enterprise agreement or employer policy where eligible employees are entitled to be represented and which concerns their industrial interests.

2)  Reasonable communication

A workplace delegate has the right to have reasonable communication with eligible employees for the purpose of representing their industrial interests - this may include discussing membership for the delegate’s organisation.

Communication may occur during work hours, work breaks, or before or after work.

3) Access to the workplace and workplace facilities

The model term requires employers to provide the delegate with access to or use of:

• a room or area to hold private discussions;
• a physical or electronic noticeboard;
• access to Wi-Fi and other electronic means of communication ordinarily used in the workplace;
• a lockable filing cabinet or secure storage area for documents; and
• other office facilities such as a printer, scanner and photocopier.

The exceptions to this include where the workplace does not have the facility, where it is impractical to provide access or use to the facility at the time or manner sought due to operational requirements, or where the employer does not have access to the facility and is unable to obtain access.

4) Access to training

A workplace delegate will have the right to have reasonable access to up to five days paid time to attend initial training, and one day of training each subsequent year.

The employer is only required to provide paid leave for one delegate for every 50 eligible employees (this considers full-time, part-time and regular casual employees).

The delegate must give the employer at least five weeks’ notice (unless otherwise agreed between the delegate and employer) of the training dates, subject matter, start and finish times, and name of training provider.

The delegate must also provide the employer with evidence of their training within seven days of completion.

What are the obligations on delegates?

When exercising the entitlements, the delegate must continue to comply with their employment duties, workplace policies and procedures.

In addition, the delegate must not hinder, obstruct or prevent the normal performance of work while exercising their delegate rights or eligible employees from exercising freedom of association.

What are the obligations on employers?

The model term refers to the obligations under section 350A of the FW Act and notes that employers must not:

• unreasonably fail or refuse to deal with the delegate;
• knowingly or recklessly make a false or misleading representation to a delegate; or
• make false or misleading representations or obstruct or prevent the delegate exercising their rights.

An employer will have been taken to satisfy the requirements under the FW Act if they have complied with the model modern award terms.

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Information provided in this news alert is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog, or from links on this website to any external website. Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.