The Fair Work Commission (FWC) has released its much-anticipated delegates' rights term which has been inserted into every modern award. The new delegates' rights term takes effect from today, 1 July 2024.
The release of the final delegates' rights term follows the FWC’s earlier release of a draft delegates' rights term for comment in mid-May.
The delegates’ rights term gives effect to the delegates' rights that were recently inserted into the Fair Work Act. Importantly for employers, compliance with the modern award delegates' rights term will be deemed compliance with the provisions under the Fair Work Act.
Click here for answers to Common Questions on the subject.
What you need to know
Key obligations
Workplace delegate = a person elected or appointed in accordance with the rules of a union to be a delegate (ie. Representative) for employees who are eligible to be members of the union in a particular business. Under the modern award term, delegates must give their employer written notice of their appointment or election as a delegate.
Once an employer is notified that an employee is a workplace delegate, they have an obligation to allow workplace delegates to do the following:
1. Representation
Workplace delegates may represent the industrial interests of eligible employees who wish to be represented by the delegate in relation to:
- 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 union 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.
2. Communication
Workplace delegates are entitled to ‘reasonable communication’ with 'eligible employees’. Eligible employees are other workers in the workplace who are either members of the same union as the delegate or entitled to be members of the same union. Reasonable communication includes discussing membership of the delegate’s union and representation on eligible employees. The communication can take place ‘during working hours or work breaks, or before work’.
3. Workplace facilities
Workplace delegates have the right to access private spaces to hold discussions, a noticeboard, secure storage, email and other standard office facilities including printers, photocopiers and wi-fi. However, an employer is not required to provide access or use of facilities when:
- they do not have the facility;
- due to operational requirements it would be impracticable to provide access to or use of the facility in the manner sought; or
- they do not have access to the facility and are unable to obtain access after taking reasonable steps.
4. Delegate Paid Training
Employers (who are not small businesses) are required to allow workplace delegates to access paid training during normal working hours subject to the following conditions:
- No more than one workplace delegate per 50 eligible employees. This is to be determined on the day a delegate requests to attend training and eligible employees includes full-time, part-time and regular casual employees.
- No more than five days to attend initial training and at least one day each subsequent year.
- The delegate must give their employer the start and finish times of the training, the subject matter of the training and the name of the training provider at least five weeks before the training commences (or a shorter period where agreed).
- If requested by an employer, the delegate must provide employer with an outline of the training content.
- The delegate must provide evidence of attendance at the training to their employer within seven days of the training ending.
Protections for workplace delegates
Employers must not:
- unreasonably fail or refuse to deal with the workplace delegate; or
- make a false or misleading representation to the workplace delegate; or
- unreasonably hinder, obstruct or prevent the exercise of workplace delegates’ rights under the Act, a modern award or an enterprise agreement.
Conditions on workplace delegates
Workplace delegates are subject to a number of vital conditions when seeking to exercise their delegates' rights, including that delegates:
- must comply with their duties and obligations as an employee;
- must comply with reasonable policies and procedures of their employer including in relation to safety and IT;
- must not hinder, obstruct or prevent the normal performance of work; and
- must not hinder, obstruct or prevent eligible employees exercising their rights to freedom of association.
Modern Awards with existing delegates' rights
Alongside the delegates' right clause, the FWC has inserted an interaction clause into 38 modern awards which already had existing clauses dealing with delegate rights. This clause states that where an existing workplace delegates' clause is more favourable than the new delegates' rights clause term, then the existing clause and entitlements shall continue to apply instead. For a full list of all 38 modern awards impacted – see Attachment B in the determination .
Common questions
1. Is this now over and settled?
For the meantime. The FWC has decided that the delegates' rights term will now be reviewed after 12 months of operation to deal with any issues which arise as a result, both broadly and, in relation to specific awards. In addition, the FWC has previously foreshadowed that after finalising its model term to be inserted into all modern awards, it is open to any interested parties, including unions, to apply to the FWC to vary the new delegates' rights term in specific awards, so as to introduce a unique delegates' rights clause specific to a particular award.
2. I have an enterprise agreement. Does this impact me?
Existing enterprise agreements are not affected immediately by the new delegates' rights term in modern awards, but employers are strongly encouraged to consider how the new rules will impact future bargaining.
From today, 1 July 2024, all new enterprise agreements voted on must include a delegates' rights term that is at least as favourable as the one in the relevant modern award. If an enterprise agreement contains a delegates’ rights term that is less favourable than the term, the modern award term will apply instead and the delegates’ rights term in the enterprise agreement will have no effect.
3. Can a workplace delegate interrupt an employee in their ordinary work and stop them working?
There is nothing stopping a workplace delegate from communicating with employees during work hours so long as their communication is reasonable and they are doing so in relation to eligible employees' industrial interests. However, whilst workplace delegates have the right to communicate, there is no corresponding right on employees to allow them to stop work, including to have discussions with workplace delegates.
4. In terms of the exemption from having to provide delegates with paid time off for training, who is a small business?
A small business is an employer with fewer than 15 employees at the time the delegate requests the training. This is the total number of individuals, not the full-time equivalent number. This can include full-time, part-time and casual employees where they are engaged on a regular and systematic basis
5. How does this impact investigations and disciplinary meetings?
Workplace delegates have the right to represent eligible employees in relation to disciplinary processes. This means, unlike the typical support person who may attend this type of meeting, but are not entitled to advocate for an employee, workplace delegates are allowed to speak/advocate/argue on an employee’s behalf. This is a significant change, and will mean managers will need to be skilled at ensuring the responses they receive from a delegate truly represent an employee’s views/account/opinion etc.
In addition, we are likely to see certain management processes such investigations and performance management discussions which can often start off as inquisitorial or supportive in nature, but which may ultimately result in disciplinary processes such as warnings or PIPs, become areas of dispute. Particularly where the line between when an investigation or performance management process ends and a disciplinary process begins, is unclear or blurred.
6. If I get this wrong what is the consequence?
Employers are prohibited under the Fair Work Act from:
- unreasonably failing or refusing to deal with a workplace delegate; or
- knowingly or recklessly making a false or misleading representation to a workplace delegate; or
- unreasonably hindering, obstructing or preventing the exercise of the rights of a workplace delegate.
Employers in breach can face fines of up to $19,800 for an individual and up to $99,000 for a company.
The rights and entitlements of workplace delegates are also ‘workplace rights’. Accordingly, if an employer was to take ‘adverse action’ (e.g. dismiss, treat them differently, demote them, cut their shifts) against an employee for exercising their rights as a delegate, they will have breached the general protections provisions of the Fair Work Act. and could face similar fines of up to $19,800 for an individual and up to $99,000 for a company per breach.
7. I’ve got a union delegate but the union has never notified me
Under the modern award term, before exercising a workplace delegate entitlement, an employee who is a delegate must give their employer written notice of their appointment or election as a workplace delegate. If an employer requests proof or evidence this must also be provided. Similarly if an employee ceases to be a delegate they must give written notice to their employer within 14 days under the modern award term. It is important to be aware that this obligation does not apply to employees who are not modern award covered, but who have delegates' rights and entitlements under the Fair Work Act.
Action required
We recommend all employers with award covered employees to review the new delegates' rights clause in detail and assess its implications for your organisation. You can read the full modern award delegates' rights determination
Given the immediate nature of these changes, Â鶹¹û¶³´«Ã½ also recommends the following steps to ensure compliance with the new requirements:
- Educate managers on the new delegates' rights term in modern awards, the entitlements it gives delegates in the workplace and the obligations on employers and managers when dealing with delegates, particularly in regards to workplace disciplinary proceedings and disputes;
- Ensure delegates and eligible employees are aware of the conditions attached to the exercising of the new delegates' rights; and
- Update payroll systems so that they can process requests for paid delegate training leave.
To assist businesses and managers with navigating these changes in the workplace, Â鶹¹û¶³´«Ã½ will hold a webcast in the coming months to discuss these changes, their impact and answer questions you might have. Â鶹¹û¶³´«Ã½ will also be running a training course on delegates' rights and right of entry for managers and HR professionals in October. Email info@ablawyers.com.au to register your interest in the course.
In the meantime, if you require any specific assistance as a result of the new delegates rights term our team is available to assist. Please do not hesitate to contact us at info@ablawyers.com.au for tailored advice and support.
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