The Fair Work Legislation Amendment (Closing Loopholes) Act 2023 amended the Fair Work Act 2009 (FW Act) to provide new rights for workplace delegates.
What is a workplace delegate?
A workplace delegate is a person appointed or elected under the rules of a union to be a delegate or representative for members of the union who work in a particular business.
The new laws require employers to allow workplace delegates to:
- represent the industrial interest of their members, and any other persons eligible to be such members, including in disputes with their employer;
- communicate with employees who are current and prospective union members at the workplace; and
- access the workplace to facilitate the delegate's duties.
Employers other than small business employers (15 or more employees) will also be required to allow workplace delegates to undertake paid training during normal work hours – without loss of pay – in relation to the role of a workplace delegate.
Prohibited actions for employers
The FW Act now prohibits employers from:
- unreasonably failing or refusing to deal with a workplace delegate; or
- knowingly or recklessly making a false or misleading misrepresentation to a workplace delegate; or
- unreasonably hindering, obstructing, or preventing the exercise of the rights of the workplace delegate.
Failure to comply with the new provisions may lead to financial penalties for breaching the FW Act.
Delegates rights clause in modern awards
In addition, from 1 July 2024 all modern awards, enterprise agreements and workplace determinations must include a 'delegates rights' clause. This new clause will only apply to enterprise agreements voted on from 1 July 2024 and will not require employers to amend existing enterprise agreements.
On 28 June 2024, a Full Bench of the Fair Work Commission (FWC) published a final delegates' rights term to be inserted into all modern awards. You can view the FWC's modern award delegates' rights clause in Attachment A to the FWC's statement issued on 28 June 2024 (link here).
Application to enterprise agreements
The FWC's delegates' rights clause will also be included in any enterprise agreements which:
- do not contain a delegates' rights clause; and
- have a ballot (or vote) on or after 1 July 2024.
Disciplinary processes
For employers, one of the more worrying aspects of the FWC's delegates' rights term is clause XA.5(d) which provides that "a workplace delegate may represent the industrial interests of eligible employees who wish to be represented by the workplace delegate in matters including [...] disciplinary processes." This means that workplace delegates can represent employees in disciplinary processes, including responding to serious allegations on an employee's behalf, as distinct from acting as a "support person". Employers who fail to allow a workplace delegate to represent an employee will likely breach the FW Act and may be subject to financial penalties.
Impact on employers
While it is unclear the extent to which these new rights for workplace delegates will impact employers, we expect unions will take full advantage of these laws to disrupt business for the purpose of increasing their membership numbers. The FWC's delegates' rights term will be reviewed in 12 months to "deal with any issues which arise with respect to its operation, generally or in relation to individual modern awards."
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.