How the New Workplace Delegates’ Rights Terms Will Apply to Your Business
The Fair Work Commission has published the draft modern award workplace delegates’ rights term which will be finalised in coming weeks. We look at some of the implications for businesses with workforces which include employees covered by modern awards, enterprise agreements or both.
New Mandatory Modern Award and Enterprise Agreement Clauses
The Closing the Loopholes No 1 reforms introduced the requirement that all modern awards contain a workplace delegates’ rights term by 30 June 2024. The modern award workplace delegates’ rights terms will apply from 1 July 2024. All enterprise agreements which are put to a vote on or after 1 July 2024 are also required to have a union delegates’ rights term.
Workplace delegates’ rights terms (a workplace delegate is also referred to as a “union delegate”) in enterprise agreements must be no less favourable than the term contained in the relevant modern award.
Where the delegates’ rights term in an agreement is less favourable, it will have no effect and the modern award term will apply. Where there are a number of modern awards which would otherwise apply, the delegates’ term in an enterprise agreement is tested against the most favourable of the modern award terms.
New Rights and Obligations in the Fair Work Act
The purpose of the new union delegates’ rights terms is to implement new rights introduced by ss 350A and 350C of the Fair Work Act as amended by the Closing the Loopholes No 1 reforms. These new laws:
define a “workplace delegate” as a person appointed or elected under their union’s “eligibility rules” to be a delegate or representative for members of that union who work in a particular enterprise;
prohibit employers from:
unreasonably fail or refuse to deal with the workplace delegate;
knowingly or recklessly make a false or misleading representation to the workplace delegate; or
unreasonably hindering, obstructing or preventing the exercise of the rights of the workplace delegate under the Fair Work Act, a modern award, an enterprise agreement or other Fair Work Instrument.
establish that the employer bears the burden of proof to establish that its conduct was not unreasonable in relation to any proceedings alleging breaches of the prohibitions in 2;
deem an employer who has followed a modern award or enterprise agreement delegates’ rights term to have complied with the requirements under the Fair Work Act;
create the right of workplace delegates to:
reasonable communication with their members and those who they are entitled to represent under their union’s eligibility rules;
reasonable access to the workplace and workplace facilities for representing members in relation to their industrial interests; and
reasonable access to paid time, during normal working hours, for the purposes of workplace delegate training, other than where the employer is a small business employer as defined in the Fair Work Act (less than 15 employees).
Draft Modern Award Delegates’ Rights Term
The Fair Work Commission has published the draft modern award workplace delegates’ rights term with the final version published on 28 June 2024. Note that the final version may differ to the draft and different modern awards may adopt their own versions of the clause. The draft term provides that:
a workplace delegate may represent eligible employees in relation to:
consultation about a major workplace change or changes to rosters or hours of work;
resolution of individual or collective grievances or disputes;
performance management and disciplinary processes;
enterprise bargaining; and
any process or procedure in which employees are entitled to be represented;
a workplace delegate is entitled to “reasonable communication” with its members and those who it is entitled to represent under its eligibility rules.
a workplace delegate must be afforded reasonable access to the workplace and workplace facilities (as they exist in the workplace), including access to:
a workplace delegate must be afforded reasonable access to the workplace and workplace facilities (as they exist in the workplace), including access to:
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; and
office facilities and equipment including printers, scanners, photocopiers and wi-fi.
a workplace delegate must be afforded reasonable access to the workplace and workplace facilities (as they exist in the workplace), including access to:
subject to additional requirements, a workplace delegate can access up to 5 days of paid time during normal working hours for initial delegate training and 1 paid training day in each subsequent year, unless the employer is a small business.
What Should Employers Do?
Review the draft modern award workplace delegates’ rights term and plan for the changes you will need to consider for the increase in union activity at the workplace.
Familiarise yourself with the final published versions of the new workplace delegates’ rights terms in all modern awards which cover your workforce - or the terms in modern awards which underpin any enterprise agreements you are planning - find your modern awards from this list.
Seek advice to ensure you incorporate a compliant delegates’ rights term in any enterprise agreement you are planning or currently negotiating - do not simply copy and paste an existing term.
Where multiple modern awards underpin an enterprise agreement you are planning or negotiating you should ensure you compare and contrast these, using the most favourable as a benchmark for the term included in the agreement.
Seek advice about other new content which must be incorporated into enterprise agreements following the recent reforms to the Fair Work Act.
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