Additional Rights for Workplace Delegates

BY OWEN WEBB & SARAH LEGOE

On 15 December 2023 the Fair Work Act 2009 (Act) was amended to include additional rights for workplace delegates. A model term was inserted into various Awards effective from 1 July 2024 which sets out the extent of these rights in respect of Award covered employees. This article will outline the new rights and when they apply together with the risks for employers should they prevent or obstruct a workplace delegate in the exercise of these rights.

Who can be a workplace delegate

A workplace delegate is a person who:

• is employed by the employer, and

• is a member of an employee organisation (i.e. union) entitled to represent workers at the workplace, and

• has been elected or appointed to be the delegate for the workplace in accordance with the rules of the employee organisation of which they are a member.1

Where the person is covered by a modern award (including the Hospitality Industry (General) Award 2020 (HIGA), the Restaurant Industry Award 2020 (RIA), General Retail Industry Award 2020 (GRIA) and the Registered and Licensed Clubs Award 2020 (RLCA)), or an enterprise agreement whether that enterprise agreement contains a term dealing with workplace delegates’ right or not, an employee appointed as a workplace delegate must provide the employer with written notice that they have been appointed or elected as the workplace delegate. The employer may request evidence from the employee which confirms their appointment or election. Such evidence may include, but is not limited to, written confirmation from the relevant union or evidence of the outcome of the election.2

Where a person is covered by a modern award and that person ceases to be a workplace delegate for a particular workplace, that person must advise the employer in writing within 14 days of that person ceasing to be a workplace delegate.3 Employers covered by an Enterprise Agreement should refer to the Enterprise Agreement to determine whether such notice must be provided, how it should be provided and when it should be provided. In the event the Enterprise Agreement is silent on this matter, the person must provide the same notice as per the corresponding award.

A workplace delegate is not entitled to exercise their rights unless they have complied with the above.

What rights does a workplace delegate have A workplace delegate is entitled to:

(a) represent the industrial interest of members and persons eligible to be a member of the relevant union

Where the employee is covered by a modern award, ‘industrial interests’ includes the following:

(i) consultation about major workplace change or changes or rosters or hours of work;

(ii) resolving disputes;

(iii) disciplinary matters;

(iv) any other matters referred to in the award or in a workplace policy that allows employees to be represented.4

(b) reasonable communication with members and persons eligible to be a member of the relevant union about their industrial interests (see section 350C(3)(a) of the Act). For award covered employees, communications include discussing membership of the relevant union or discussing matters the delegate may be representing a worker(s) in.5 Nothing in respect of this right, requires an employer to provide the workplace delegate with contact details for eligible employees.6

Communications may occur during work hours, during breaks or before or after work.7

(c) workplace delegates must be provided with reasonable access to and use of facilities within the workplace for those communications. For award covered employees, this means:

(i) a room or area that is fit for purpose, private and accessible by the delegate and other employees;

(ii) a noticeboard (whether physical or electronic);

(iii) access to wifi and other electronic means of communication ordinarily used in the workplace (for example, email, Teams, phones etc);

(iv) computers, printers, scanners, photocopies and any other office facilities the delegate may need to access to carry out their duties.8

An employer does not need to provide access to or use of workplace facilities if they are not available or due to operational requirements (for example, it is not available or practicable at the time the delegate seeks access or use of the facilities).9 By way of example, it would not be reasonable for the workplace delegate to seek access to the bistro area of a hotel during meal service or when the area is open to the public or to request access to WiFi or computer services at a particular time if there is an IT outage or WiFi is not available due to the location.

What is deemed reasonable in respect of both the type of communication and access to facilities will depend on factors such as the size of the workplace and the facilities available.

(d) Unless the business is a small business employer (as defined in the Act), access to paid leave to attend training during normal working hours as follows:

(i) 5 days in respect of initial training for one workplace delegate per 50 eligible employees in a financial year; and

(ii) at least 1 day for training in each subsequent year.10

Training, for the purposes of this right, means training related to representing the industrial interests of employees. This is not dissimilar to what was historically known as union training leave. The Award sets out the period of notice the workplace delegate must provide to the employer, plus details of how the employee is to be paid.

In exercising their rights, an Award covered workplace delegate must comply with their obligations and duties as an employee, comply with policies and procedures of the employer (provide such policies and procedures are reasonable) and not hinder or obstruct employees in carrying out their duties.11

Eligible employees, where referred to in respect of these rights, means employees (whether engaged on a full time, part time or casual basis) who are eligible to be a member of the employee organisation that the workplace delegate is also a member of and under the rules of which that person has been elected or appointed in the position of workplace delegate.

Award Free Employees

A workplace delegate that is an Award Free employee, is still entitled to the rights set out above. Where there are more prescriptive requirements that apply to award covered employees, when it comes to Award Free employees, the employer and the delegate need to consider what may be reasonable in the circumstances in determining the scope of the rights and how they are to apply in the workplace.

Enterprise Agreement Covered Employees

For workplace delegates whose employment is covered by an Enterprise Agreement, the Enterprise Agreement should be referred to in respect of matters such as the number of days of paid training leave and the process for seeking approval. Where the Enterprise Agreement is silent on such matters, the same approach should apply as to Award covered employees.12

Non-compliance by the employer

An employer who:

(a) unreasonably fails or refuses to deal with a workplace delegate or unreasonably hinders or obstructs the delegate from carrying out their duties; or

(b) knowingly or recklessly makes a false or misleading representation to the workplace delegate exposes themselves to a general protections claim being made against the employer in the Fair Work

Commission (see section 350A of the Act), and the potential of pecuniary penalties being applied in the event a breach of section 350A of the Act is found to have occurred. Pecuniary penalties can be significant.

Non-compliance by the workplace delegate

In the event a workplace delegate is either:

(a) unreasonably fails or refuses to deal with a workplace delegate or unreasonably hinders or obstructs the delegate from carrying out their duties; or

(b) knowingly or recklessly makes a false or misleading representation to the workplace delegate the employer should firstly speak with the workplace delegate and advise them of the concerns with their behaviour. In the event the behaviour continues, the employer may wish to consider commencing disciplinary action (for example, issuing a warning etc) following the usual procedure and steps of procedural fairness. However, in taking disciplinary action employers must be mindful that they must not themselves be in breach section 350A of the Act.

Further Information

Members should contact the AHA|SA to discuss any of the issues raised in this fact sheet.

This article contains information that is of a general nature and is for informational purposes only. This article, and its contents, does not constitute legal advice.

Endnotes

1 See section 350C(1) of the Act.

2 HIGA cl 37A.3; RIA cl 31A.3; GRIA cl 33A.3; RLCA cl 31A.3.

3 HIGA cl 37A.4; RIA cl 31A.4; GRIA cl 33A.4; RLCA cl 31A.4.

4 HIGA cl 37A.5; RIA cl 31A.5; GRIA cl 33A.5; RLCA cl 31A.5.

5 HIGA cl 37A.6; RIA cl 31A.6(a); GRIA cl 33A.6(a); RLCA cl 31A.6(a).

6 HIGA cl 37A.6(a); RIA cl 31A.6(a); GRIA cl 33A.6(a); RLCA cl 31A.6(a).

7 HIGA cl 37A.6(b); RIA cl 31A.6(b); GRIA cl 33A.6(b); RLCA cl 31A.6(b).

8 HIGA cl 37A.7(a); RIA cl 31A.7(a); GRIA cl 33A.7(a); RLCA cl 31A.7(a).

9 HIGA cl 37A.7(b); RIA cl 31A.7(b); GRIA cl 33A.7(b); RLCA cl 31A.7(b).

10 HIGA cl 37A.8; RIA cl 31A.8; GRIA cl 33A.8; RLCA cl 31A.8.

11 HIGA cl 37A.9; RIA cl 37A.9; GRIA cl 33A.9; RLCA cl 31A.9.

12 See Fair Work Commission, ‘Delegates’ rights terms in enterprise agreements’ (28 June 2024) .