New Delegates’ Rights and You’re Paying for it!

Recent changes to the Fair Work Act 2009 (Cth) (‘FW Act’) and modern awards from 1 July 2024 have introduced significant rights for workplace delegates to represent members of their union including communication with members in work time, access to the workplace and workplace facilities, and access to training.

These changes will affect workplaces where there are currently no workplace delegates, but they will also have potential application to workplaces where arrangements for workplace delegates are already in place.

A workplace delegate is a person appointed or elected, in accordance with the rules of an employee organisation, to be a delegate or representative (however described) for members of the organisation who work in a particular enterprise. In essence, a workplace delegate is an employee who is a representative of their union at the workplace.

A workplace delegate may represent the industrial interests of eligible employees who wish to be represented by the workplace delegate for matters including:

• consultation about major workplace change;
• consultation about changes to rosters or hours of work;
• resolution of disputes;
• disciplinary processes;
• enterprise bargaining where the workplace delegate has been appointed as a bargaining representative or is assisting the delegate’s organisation with enterprise bargaining; and
• any process or procedure within an award, enterprise agreement or policy of the employer under which eligible employees are entitled to be represented and which concerns their industrial interests.

An employer is required to provide a workplace delegate with access to or use of the following workplace facilities:

• a room or area to hold discussions that is fit for purpose, private and accessible by the workplace delegate and eligible employees;
• a physical or electronic noticeboard;
• electronic means of communication ordinarily used in the workplace by the employer to communicate with eligible employees and by eligible employees to communicate with each other, including access to Wi-Fi;
• a lockable filing cabinet or other secure document storage area; and
• office facilities and equipment including printers, scanners and photocopiers.

However, the employer is not required to provide access to or use of a workplace facility if:

• the workplace does not have the facility;
• due to operational requirements, it is impractical to provide access to or use of the facility at the time or in the manner it is sought; or
• the employer does not have access to the facility at the enterprise and is unable to obtain access after taking reasonable steps.

An employer, who is not a small business employer, is required to provide a workplace delegate with access to up to five days of paid time during normal working hours for initial training and at least one day each subsequent year, to attend training related to representation of the industrial interests of eligible employees.

However, paid training is subject to the following conditions:

• in each year commencing 1 July, the employer is not required to provide access to paid time for training to more than one workplace delegate per 50 eligible employees; and
• the number of eligible employees is to be determined on the day a delegate requests paid time to attend training. Eligible employees are those who are full-time or part-time employees, or regular casual employees.

Payment for a day of paid time during normal working hours is payment of the amount the workplace delegate would have been paid for the hours the workplace delegate would have been rostered or required to work on that day if the delegate had not been absent from work to attend the training.

A workplace delegate is subject to the following conditions when exercising their rights:

• comply with their duties and obligations as an employee;
• comply with the reasonable policies and procedures of the employer, including reasonable codes of conduct and requirements in relation to occupational health and safety and acceptable use of ICT resources (presumably meaning information and communications technology);
• not hinder, obstruct or prevent the normal performance of work; and
• not hinder, obstruct or prevent eligible employees exercising their rights to freedom of association.

The FW Act provides that the employer must not:

• unreasonably fail or refuse to deal with a workplace delegate; or
• knowingly or recklessly make a false or misleading representation to a workplace delegate; or
• unreasonably hinder, obstruct or prevent the exercise of the rights of a workplace delegate under the FW Act or the delegates’ rights clause.

The delegates’ rights provisions place onerous obligations on employers to support and pay for delegates to conduct union business at the workplace including during work hours. The risks for employers that do not manage their obligations to workplace delegates are potentially significant.

If you would like to know more about delegates’ rights, please contact us and a Mapien Workplace Strategist will be in touch within 24 hours.