The Federal Government’s overhaul of workplace laws has triggered changes to the union delegate definition and rights, as well as right of entry powers.
Our experts explain what you can expect from the changes and how to best prepare.
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Union delegate definition and rights
The Fair Work Act has a new definition of workplace delegate:
A person appointed or elected, in accordance with the rules of an employee organisation, to be a delegate or representative for members of the organisation who work in a particular enterprise.
These provisions became law on December 14, 2023, but are not due to take effect until July 1, 2024. Once in force, a delegates’ rights term must be included in:
- Modern awards;
- Enterprise agreements; and
- Workplace determinations.
What do workplace delegates’ rights include?
The draft modern award terms will be published for comment in the week of May 6, 2024. Until then, we know delegates’ rights will at least include:
- To represent industrial interest of current and eligible members of the union, including in relation to any workplace disputes;
- Reasonable communication with current and eligible members in relation to their industrial interests and reasonable access to the workplace and workplace facilities to do so; and
- Reasonable access to paid time during normal working hours for the purpose of delegate training (unless the employer is a small business).
Additionally, the expanded General Protections provisions prevent employers from:
- Unreasonably failing or refusing to deal with a workplace delegate;
- Knowingly or recklessly making a false or misleading representation to a workplace delegate; or
- Unreasonably hindering, obstructing or preventing the exercise of the rights of a workplace delegate.
The final determinations varying modern awards will be published by June 28, 2024. The determinations then come into effect from July 1, 2024.
What else could the new terms include?
The Fair Work Commission will likely try to strike a balance between what industry and the unions are seeking.
The table below contrasts some of the terms included in submissions to the FWC by the Australian Chamber of Commerce and Industry (ACCI), of which CCIWA is a member, and the Mining and Energy Union (MEU), to show some of what employee organisations are requesting.
| Delegate right | ACCI | Union |
| Access workplace and facilities – scope of access | Access for purposes related to "industrial interests" of other employees, excluding broader delegate functions. | A broader right to "make use of the facilities and equipment where the enterprise is being carried on", potentially encompassing a wider range of delegate activities, including freedom of movement. |
| Access to workplace and facilities – use of facilities | Requires employer agreement for facility use and allows employers to designate specific times or deny access altogether if not deemed necessary. | Lacks specific limitations on using facilities, implying a more presumptive right for delegates. |
| Paid training leave – approval and nomination | No mention of union involvement in approving training or nominating delegates. | Requires union nomination of the delegate and approval of the training course. |
| Paid training leave – duration and scheduling | Strictly five days maximum per delegate per year (non-cumulative) and six weeks’ notice with detailed course information required. | No specific limitations on duration and requires only four weeks' notice. |
| Paid training leave – refusal rights | Grants employers the right to refuse training based on operational needs, relevancy, or fitness for purpose. | No mention of employer refusal rights, suggesting less restrictive access for delegates. |
How can you prepare for delegates’ rights changes?
It’s important to stay informed as to what the potential changes will be. Subscribe to updates here.
As there are no limitations on these new entitlements for delegates under the Fair Work Act 2009 (Cth) (FW Act), CCIWA recommends implementing a policy to set parameters around delegates exercising their rights, to help manage these new rights whilst still maintaining compliance with the FW Act and awards.
The policy should outline expectations around notice and evidence requirements for circumstances such as training.
Right of entry
Since December 15, 2023, union officials can enter workplaces to assist health and safety representatives with workplace health and safety matters more easily.
In addition, from July 1, 2024, they will have the ability to enter workplaces without notice for suspected underpayments.
Both of these right of entry provisions are similar to what was already in place and the effect the full extent of these changes will have remains to be seen.
Our IR Masterclass has been updated to include all the latest content in the Closing Loopholes Bill.
CCIWA’s Right of Entry course explores the requirements for right of entry under the FW Act and provides practical techniques and strategies to help employers effectively manage the process.
Given the extent of the changes, it is recommended that all employers review their relevant policies and procedures.
Contact our Employee Relations Advice Centre for more information about how CCIWA’s employment lawyers and HR consultants can assist with this on (08) 9365 7660, or via [email protected].
