On 26 February 2024, the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (Cth) received Royal Assent amending the Fair Work Act 2009 (FW Act). This brought about significant changes including new protections and entitlements for union delegates.
Who is a union delegate?
A union delegate is an employee elected or appointed by their union to represent union members as well as potential members and their interests e.g., representing its members in disputes with their employer.
So what's changed?
The changes include a broad definition of a 'workplace delegate' and introduces further protections and specific rights for union delegates in their role representing the industrial interests of union members and potential members.
A new definition of 'delegates' rights term' has been inserted in section 12 of the FW Act and means a term in a fair work instrument that provides for the exercise of the rights of workplace delegates. A legislative note to the definition points to the below workplace rights of delegates and provides that a 'delegates' rights term' must provide at least for the exercise of those rights.
Employers are prohibited from:
- unreasonably failing or refusing to deal with a union delegate
- knowingly or recklessly making a false or misleading representation to a union delegate
- unreasonably hindering, obstructing or preventing the exercise of the rights of a union delegate.
The burden of proving that the conduct of an employer is not unreasonable lies on the employer.
Union delegates are entitled to:
- reasonable communication with members, and any other persons eligible to be members, in relation to their industrial interests
- reasonable access to the workplace and workplace facilities where the enterprise is being carried on
- reasonable access to paid time (for delegates in businesses who are not small business employers) during normal working hours for the purposes of related training. Small business employers are exempt from this obligation of paid time to union delegates for training in relation to their union delegate role.
The size and nature of the enterprise, resources of the employer of the workplace delegate and the facilities available at the enterprises, are factors that will be considered in determining what is reasonable.
These changes provide further protections and entitlements, and it is important to note that employers who contravene the above can be liable under the general protections provisions of the FW Act.
When does it come into effect?
The new workplace delegate rights came into effect on 15 December 2023.
From 1 July 2024, modern awards, new enterprise agreements and workplace determinations will include a term in relation to the rights of union delegates in accordance with the above. The draft delegate's rights term' that is intended to be the term inserted into all modern awards can be found here. This draft term has been prepared after a lengthy public consultation and submissions process.
From 26 August 2024 (or an earlier date set by the Australian Government), the rights and protections for workplace delegates under the FW Act is to be expanded to include regulated workers (employee-like workers and regulated road transport contractors) who are workplace delegates.
More rights? Drawing the line
Some unions are already seeking to expand upon the new delegates rights. There have been proposals seeking paid time off for political lobbying, an entitlement to flexible work changes to facilitate their right to represent during work time, right to access facilities including air-conditioned and heated facilities, access to stationary, an iPad and a telephone.
Draft term
The draft delegate's rights term already contains an entitlement to reasonable access to the workplace and workplace facilities (unless the employer does not have them) including:
- a room or area to hold discussions which is fit for purpose, private and accessible by the workplace delegate and eligible employees
- a physical or electronic noticeboard
- electronic means of communication that are ordinarily used by the employer to communicate with eligible employees in the workplace
- a lockable filing cabinet or other secure document storage area
- office facilities and equipment including printers, scanners, photocopiers and wi-fi.
Notably, the draft term contains an entitlement to reasonable access to training and unless the employer is a small business employer, the employer must provide a workplace delegate with access to up to 5 days of paid time during normal working hours for initial training and 1 day each subsequent year, to attend training related to the representation of the industrial interests of eligible employees subject to certain conditions.
What this means for employers
Employers need to be aware of the above changes and we advise that employers review their existing processes in engaging with union delegates with these protections and entitlements in mind.
Any new enterprise agreements and workplace determinations, as well as modern awards, will include a term in relation to these entitlements and protections and will need to be adhered to.
We advise that employers carry out the necessary training for their management staff to inform them of these changes and how it may impact the workplace.