Employers have new obligations under modern awards to recognise, provide resources, and pay for workplace delegates.
The new obligations follow the Federal Government’s reforms that required the Fair Work Commission to develop a delegates’ rights term for modern awards by 30 June 2024.
These new modern award-based obligations largely replicate workplace delegates’ rights, which were introduced to the Fair Work laws late last year.
Each modern award will have the delegates’ rights term inserted unless it already has such a term that is more favourable.
The new delegates’ rights modern award term is also a compulsory term for future enterprise agreements (again subject to the inclusion of a more favourable term).
We shall discuss what employers need to know about their obligations towards union delegates.
Who are workplace delegates?
A workplace delegate is a person appointed or elected by an employee organisation, generally a union, to represent members at a workplace.
The workplace delegate is different to an official employed by a union, who has had various rights, including right of entry rights, under the Fair Work and predecessor workplace laws.
In contrast to a union official, a workplace delegate will be employed and work for a business rather than be employed directly by the union.
Rights of workplace delegates
An employee must provide notice to the business where they work of their appointment as a delegate before they can be formally recognised as a workplace delegate.
The confirmation of an employee as a workplace delegate in this uncomplicated manner imposes various obligations on employers as follows:
- Representation Rights: the obligation to recognise and enable a workplace delegate to represent members of the union at the workplace.
- Reasonable Communication: the obligation to provide workplace delegates with the ability to engage in reasonable communication with current members (and those eligible for membership) about their industrial interests.
- Access to Workplace: the provision of access to and utilisation of workplace facilities to a workplace delegate.
- Paid Time for Training: the obligation to provide workplace delegates (excluding those working for small businesses) with reasonable paid time during normal working hours to attend training about their role.
A review of these new obligations for employers will be conducted by the Fair Work Commission within 12 months, that is, by 1 July 2025.
Protections for workplace delegates
The Closing Loopholes reforms have introduced specific protections for workplace delegates that supplement other general protections under the Fair Work laws.
New section 350A of the Fair Work laws prohibits employers from any of the following activities:
- Unreasonable Refusal to Deal with Workplace Delegate: an employer must not unreasonably fail or refuse to engage with a workplace delegate who is carrying out their duties.
- False or Misleading Representations: an employer is prohibited from knowingly or recklessly providing false or misleading information to a workplace delegate.
- Hindering or Obstructing Rights: an employer is prohibited from unreasonably hindering, obstructing, or preventing a workplace delegate from exercising their rights under a modern award (or the Fair Work laws).
These protections supplement existing general protections under the Fair Work laws.
Comment
Historically, an employer did not have any obligation to provide resources or other assistance to a ‘shop steward’ or workplace delegate, to use the terminology currently utilised in the Fair Work laws. Unions would consequently seek to reach an agreement with employers to obtain rights for workplace delegates, either informally or formally, for example, through a term in an enterprise agreement.
Under these new rights, employers have lost the ability to control elements of what workplace delegates can and cannot do in the workplace. For example, a workplace delegate may potentially use these new terms to embed themselves in important processes, such as disciplinary processes, grievance disputes and enterprise bargaining, during their normal work time. Further, a workplace delegate’s employer will also need to provide facilities and time to communicate with the members of the union at the workplace.
The challenge for unions, with the ongoing decrease in union density in the private sector, will be to find sufficient workers prepared to be union delegates at their workplace. Unions will likely look to the bigger workforces at larger private sector businesses, particularly those that are already unionised, to seek to overcome this difficulty.
In practice, the impact of introducing a workplace delegates rights term into all modern awards, much like other recent workplace reforms, is more likely to be felt by larger than smaller businesses.
If you have any questions in relation to the new modern award rights for workplace delegates, please contact one of our employment law experts.
