Australian employers must consider new obligations ensuring workplace delegates’ rights

When the first Closing Loopholes Act came into effect in December 2023, new delegates’ rights were included in the Fair Work Act. From 15 December 2023, new delegates’ rights terms in the Fair Work Act imposed significant obligations on employers and gave employee union delegates wide-ranging rights to represent the interests of current and potential union members. With the Closing Loopholes No 2 Bill, delegates’ rights were extended to apply to ‘regulated workers’, which includes independent contractors performing digital platform work and regulated road transport contractors.

On 28 June, as part of the new rights under the Fair Work Act, the Fair Work Commission published a new ‘model delegates’ rights’ term to be included in all modern awards from 1 July. This means that all employees covered by a modern award will have the right to be represented by a union delegate in a range of workplace matters.

Also in effect since 1 July, the model delegates’ rights term must now be included in all new enterprise agreements. If an enterprise agreement made after that date does not include the model delegates’ rights term or a delegates’ rights term that is less favourable than the model term, the model term in the applicable modern award will apply.

Workplace delegates’ rights

A ‘workplace delegate’ is newly defined as a person who is appointed or elected, in line with the rules of an employee organisation, to be a delegate or representative for members of the organisation who work in a particular enterprise.

Under the delegates’ rights term, a workplace delegate has the right to represent the industrial interests of eligible employees, reasonable communication with eligible employees, reasonable access to the workplace and workplace facilities, and up to five days of paid leave during work hours for initial training and at least one day each subsequent year for delegate-related training.

The right to represent the industrial interests of eligible employees includes matters such as:

• major workplace changes;
• changes to rosters or hours of work;
• resolution of disputes;
• disciplinary processes;
• enterprise bargaining – where the workplace delegate has been appointed under s 176 of the Fair Work Act; and
• any process or procedure within an award, enterprise agreement or policy of the employer.

  Reasonable communication with eligible employees, includes members and eligible members – essentially giving the union delegates a right to communicate with all other employees. This involves reasonable communication with members, and any other person eligible to be a member of an employee organisation for the purpose of representing their industrial interests, during work hours or work breaks, or before or after work hours.

  Reasonable access to the workplace and workplace facilities for the purposes of representing those interests include:

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

  The right to have up to five days of paid leave during work hours for initial training and at least one day each subsequent year for delegate-related training - unless the delegate’s employer is a small business of less than 15 employees - is subject to the following conditions:

• ·no more than one workplace delegate per 50 eligible employees can access paid leave;
• the workplace delegate must give the employer notice of the dates, subject matter and start and finishing times of the training at least five weeks before the commencement of training;
• ·on request, the workplace delegate must provide the employer with an outline of the training content;
• the employer must advise the workplace delegate if paid time during working hours has been approved at least two weeks before the commencement of training; and
• the workplace delegate must provide evidence of attendance at the training within seven days of the final day of training.

In determining what is ‘reasonable’, the size and nature of the enterprise, resources of the employer and facilities available at the enterprise must be considered.

Practical considerations for employers

The main implications of the new term for employers includes increased costs, exposure to potential new legal claims and increased union involvement in workplace matters.

Employers will need to review and update their practices, policies and procedures to ensure they allow appropriate delegate access to eligible employees during work hours and employer-provided facilities like meeting spaces and means of communication, as well as providing for new delegate entitlements to paid leave for training during work hours.

Employers must not:

• unreasonably fail or refuse to deal with a workplace delegate;
• 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.

Any breach by an employer of these new obligations exposes it – and any individual involved in the breach - to legal claims under the ‘general protections’ provisions of the Fair Work Act.

The new modern award term for delegates’ rights is the minimum threshold that employers must meet. Employers can expect unions to press for additional delegates’ rights and corresponding increased obligations for employers in enterprise bargaining. As noted above, if a delegate’s rights term is not included in new enterprise agreements from 1 July, or a less favourable term is used, then the model term will be taken to apply. Employers will need to plan for and develop strategies to counter such claims.

Delegates’ duties

Delegates’ rights and protections under the new clause can only be exercised if the delegate complies with their duties and obligations as an employee, including complying with reasonable policies and procedures of the employer, such as information and communication technology and work health and safety policies.

The delegate must not disrupt the normal performance of work and must not prevent eligible employees from exercising their rights to freedom of association.

Employers should ensure the workplace delegate complies with these duties.

Recommended measures for employers

To ensure compliance with the latest regulation, employers should ensure that:

• their workplace practices, policies and procedures have been reviewed and amended, including ensuring that protocols are in place for communicating and otherwise dealing with delegates;
• education and training is provided to relevant managers about the delegates’ rights term and how it will impact the workplace;
• delegates and eligible employees are aware of conduct requirements so they understand what constitutes acceptable conduct;
• any existing enterprise agreements including ‘workplace delegate’ provisions are reviewed for consistency with the new term. In case of any inconsistency, the more favourable delegates’ rights term will apply;
• payroll systems are updated to process requests for paid delegate training leave; and
• reasonable workplace facilities are accessible to workplace delegates for the purpose of representing industrial interests.

Employers found to have contravened the Fair Work Act can be subject to monetary penalties of up to AU$18,780 (US$12,649) per contravention for an individual, or AU$93,900 per contravention for a company.

If in any doubt regarding their obligations, employers should seek expert advice on matters involving workplace delegates to minimise the risk of exposure to legal claims.

Co-written by Ebony O’Connor of Pinsent Masons.