Workplace Delegates and the Right to be Represented

The FWC has recently handed down its decision regarding workplace delegates rights to be inserted into every modern award. As of 1 July 2024, amongst other things, eligible employees are entitled to be represented by workplace delegates at various times, including during disciplinary processes. These changes will have major implications for workplaces.

New Workplace Delegates Rights

Workplace delegates are only entitled to represent the interests of “eligible employees”. Eligible employees mean members and persons eligible to be members of the delegate’s organisation (i.e. their Union) who are employed by the employer in the workplace.

The key rights to be aware of are:

1. Workplace delegates are now entitled to represent an employee’s industrial interests during:
   • 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 delegate’s organisation 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 interest.
2. A workplace delegate may communicate with eligible employees about the above matters. This can occur during work hours, breaks, before and after work.
3. An employer must provide a workplace delegate with access to or use of the following work facilities:
   • A room or area to hold discussions that is fit for purpose, private and accessible by the workplace delegate and employees;
   • A physical or electronic noticeboard;
   • Electronic means of communication ordinarily used in the workplace by the employer to communicate with eligible employees and by employees to communicate with each other, including access to Wi-Fi;
   • A lockable filing cabinet or other secure document storage area; and
   • Office facilities and equipment including printers, scanners and photocopiers.
4. Subject to certain conditions, 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 at least one day each subsequent year, to attend training related to the representation of the industrial interests of employees. Note this does not apply to small business employers.

Please note there are some limited scenarios in which the employer is not required to provide access to work facilities outlined above, including if the workplace does not have the facility.

Prior to exercising rights and entitlements under the workplace delegate clause, the workplace delegate must give the employer written notice of the appointment or election as delegate.  If requested, the workplace delegate must provide the employer with evidence that would satisfy a reasonable person of their appointment or election.

Impact on Employers

The new provisions in modern awards will only apply to an employer’s workplace if there is a workplace delegate onsite.

In our view, one of the biggest impacts of these changes is employees’ right to representation in variety of matters.  This was previously not available (unless negotiated under an enterprise agreement or was otherwise part of the employer’s policies).

Further, situations could arise where employers could have greater exposure under the general protections of the FW Act.  For example, if there is workplace delegate onsite, an employee is now entitled to a benefit under a workplace instrument, i.e. to be represented by that delegate for certain matters (i.e. when consulting).  A failure to engage with the workplace delegate in these situations, or give the opportunity to the employee to be represented by the workplace delegate, may create a general protections exposure.

Employers also need to be aware that enterprise agreements made on or after the 1 July 2024 must include delegates rights terms.  If they do not, the clause from any underpinning modern award will be included on approval by the FWC.  Further, if an employer includes their own delegates term in an enterprise agreement, this clause must be no less favourable than the delegates rights term in the underpinning modern award that covers the employees. If multiple awards apply, the most favourable delegate clause will apply.

The FWC will review workplace delegates terms after 12 months of operation to deal with any issues which arise with respect to its operation, generally or in relation to individual modern awards.

Should you have any questions or concerns relating to employer obligations under the new workplace delegates rights clause please don’t hesitate to contact the HR Legal team.