The Federal Government’s overhaul of workplace laws has triggered changes to the workplace 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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Workplace delegate definition and rights
The Fair Work Act (FW 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 were issued on May 10 and were open to feedback until May 17. Final determinations will be published by June 28 and will be in operation from July 1.
Wins for employers:
- Restrictions of how a workplace delegate can interact within the definition of enterprise under s12 of the FW Act through definition creation of ‘employer’ and ‘eligible employees’ under draft clause X.
- Attending union rallies or protests are not explicitly classed as official union business in the clause as requested by the ACTU and other unions;
- Workplace delegates are required to not hinder, obstruct or prevent the normal performance of work;
- Workplace delegates must comply with their duties and obligations as an employee;
- Protect individuals within the employer’s organisation by not requiring the provision of email addresses of individuals; and
- Reasonable access to training:
- A cap of up to five days of training for initial training and one day each subsequent year must be provided;
- Only one workplace delegate per 50 eligible employees is required to be provided the training (employers can allow more at their discretion);
- Five weeks’ notice for taking training with the date, subject matter and start and end training times required;
- If requested by the employer, delegates are required to provide the employer with an outline of the training content; and
- Delegates must provide evidence of attendance at the training, within seven days after the conclusion of the training.
Losses for employers:
- Workplace delegates will be allowed to speak to employees about membership to the union;
- Employers must provide a room or area that is private and accessible by the delegate and eligible employees;
- Delegates must have access to office facilities and equipment; and
- Delegates need to have electronic means of communication that are ordinarily used by the employer to communicate with eligible employees in the workplace.
How can you prepare for delegates’ rights changes?
It’s important to stay informed as to what the final determinations will be. Subscribe to updates here.
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 modern awards.
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.
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.
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].
