Workplace delegates’ rights and other employment changes from 1 July 2024

Workplace delegates’ rights

Under changes to the Fair Work Act 2009 (Cth) (Act) (which were part of the Closing Loopholes amendments) enterprise agreements voted on by employees on or after 1 July 2024 must include a term regarding workplace delegates’ rights. Where no term is included, the term in the applicable modern award will apply.

In this article, we explain what employers need to do to comply with the changes.

A workplace delegate is a person who is elected or appointed to represent union members in their workplace.

Last Friday (28 June 2024), a Full Bench of the Fair Work Commission finalised the “Modern Award delegates’ rights clause” for inclusion in all modern awards.

Under this clause, if requested by the employer, in order to be recognised as a workplace delegate, the delegate must give the employer a written notice with evidence that would satisfy a reasonable person of their appointment as the delegate.

Once recognised, the delegate can represent the industrial interests of eligible employees who wish to be represented by the delegate. This includes in relation to consultation about major change, changes to rosters or hours of work, resolution of disputes, disciplinary processes, enterprise bargaining, and processes or procedures under an award, enterprise agreement or policy where an eligible employee is entitled to representation of their industrial interests.

The clause confers specific rights on the workplace delegate including:

• entitlement to reasonable communication: the delegate may communicate with eligible employees during work hours, breaks, or before or after work, for the purpose of representing their industrial interests;
• entitlement to reasonable access to the workplace and workplace facilities: the employer must provide the delegate with access to or use of the following facilities at the workplace (unless the workplace does not have the facility, or it is impractical to provide access to the facility at the time sought, or the employer is unable to provide access at the relevant site on taking reasonable steps to do so):
  • a room or area to hold discussions that is fit for purpose, private and accessible by the delegate and employees;
  • a physical or electronic noticeboard;
  • electronic means of communication that is ordinarily used in the workplace, including wifi access;
  • a lockable filing cabinet or other secure document storage area; and
  • office facilities and equipment including printers, scanners and photocopiers.
• entitlement to reasonable access to training: the employer (other than a small business employer) must provide the delegate with 5 days of paid time during normal working hours for initial training, and 1 day each subsequent year to attend training. This entitlement is capped at 1 delegate per 50 eligible employees.

In exercising any of the above rights, the delegate must comply with their duties and obligations as an employee, the reasonable policies and procedures of the employer, and not hinder, obstruct or prevent the normal performance of work or employees from exercising their rights to freedom of association.

These provisions commenced on 1 July. As a result, any enterprise agreement that is voted on by employees from1 July will either need to have its own workplace delegates term that is the same as or more beneficial than the workplace delegates term in an otherwise applicable award, or the workplace delegates term from the award will apply. Awards that have more favourable entitlements for workplace delegates than the model term, will have those entitlements preserved.

Unless an existing enterprise agreement incorporates the underlying Award, employers will not need to comply with the new award workplace delegates’ clause. However, if that enterprise agreement is replaced or terminated, the applicable workplace delegates clause will need to be considered. However, if the enterprise agreement is replaced or terminated, the applicable workplace delegates clause will need to be considered.

For employers who will need to comply with these provisions (either as a term of the applicable award or an enterprise agreement that is shortly to be voted on by employees) it will be necessary to consider what steps need to be taken to comply with the requirements on receiving notice of appointment of a workplace delegate.

Under the Act, employers must not:

• unreasonably fail or refuse to deal with a workplace delegate;
• knowingly or recklessly make a false or misleading representation to a workplace delegate; or
• unreasonably hinder, obstruct or prevent the exercise of the rights of a workplace delegate under the Act or the new award clause.

Key employment monetary changes from 1 July 2024

In addition, from 1 July 2024 the following monetary changes will have effect.

Employers should ensure their payroll process and employment contracts are updated to reflect these changes where applicable.

For any questions about how to comply with the changes, please contact Luci Mummé, Ruveni Kelleher or Jan Dransfield.