A combined advocacy effort from CCIWA and ACCI has seen some significant changes to the new workplace delegates’ rights rules which came into effect this week.
Due to the Federal Government’s overhaul of workplace laws, a new delegates rights term has been inserted in all modern awards and will be required for all enterprise agreements made after July 1, 2024.
The new rules include several key changes from the draft version, reflecting the feedback and concerns raised by employer groups and unions.
ACCI, with input from CCIWA, was able to secure several important modifications to the draft term:
Conditional Right of Representation: The right of representation for workplace delegates is now more clearly defined. It will only be activated when there are eligible employees who wish to be represented by the delegate in specific matters.
Access to Workplace Facilities: Employers are not required to provide reasonable access to workplace facilities if such facilities do not exist, if it is impractical due to operational reasons, or if there is no access to the facility within the enterprise.
Clarification on Representation in Bargaining: The Fair Work Commission (FWC) has clarified that the right of representation in bargaining is contingent upon the delegate being appointed under section 176 of the Fair Work Act or if they are assisting their union.
Additional changes by the FWC
The FWC also made several changes to the final term:
Placement of Clarifying Note: A note clarifying that an employer has met the delegate rights under section 350C(3) of the Fair Work Act by complying with the term has been moved to the beginning of the clause.
Notice Period for Delegate Appointment: Employees must now give notice within 14 days of their appointment as a delegate, rather than the "as soon as practicable" requirement in the draft term.
Exclusion of Performance Management from Representation Matters: Right of representation matters now exclude performance management, though disciplinary processes are still included.
Paid Training Leave Clarification: The final term specifies that paid training leave will be compensated as if the delegate had worked their regular hours on the day of the training.
Access to Communication Facilities: Access to workplace facilities now includes means of communication typically used by the employer and employees, including Wi-Fi.
Training Days for Delegates: Delegates are now eligible for five days of paid initial training and at least one day of subsequent training each year.
Retained criteria for paid training leave
Despite CCIWA’s and ACCI’s advocacy efforts, the FWC has kept the eligibility criteria for paid training leave. The final term specifies that one delegate per 50 eligible employees will be allowed paid training leave.
The calculation is based on the number of eligible employees on the day of the request, including full-time, part-time and regular casual employees.
The ratio of eligible delegates is determined either from 1 in 50 eligible casual employees or 1 in 50 eligible full-time or part-time employees.
How can you prepare for delegates’ rights changes?
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.
It is important to remember that as an employer you are not responsible for ensuring you have a workplace delegate. Many workplaces do not have a delegate. Workplace delegates will be appointed under union rules, meaning the employer has no say, involvement or control over this process. Once a workplace delegate advises the employer that they have been appointed as the delegate, that's when the employer is obligated and legally required to engage with them.
Do you need advice about Workplace Delegate Rights? The Business Law WA Commercial Legal team can help. Get in touch on (08) 9365 7746 or via [email protected].
Contact our Employee Relations Advice Centre for more information about how CCIWA’s experts can assist with this on (08) 9365 7660, or via [email protected].
This article is authorised by Business Law WA, an incorporated legal practice and wholly owned subsidiary of CCIWA. The contents of this article is general in nature and is not legal or professional advice and should not be relied upon as such.
A combined advocacy effort from CCIWA and ACCI has seen some significant changes to the new workplace delegates’ rights rules which came into effect this week.
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