Delegates' Rights and Union Right of Entry

From 1 July 2024, every modern award now includes a delegates' rights term. If you have award covered employees you should review the new delegates' rights clause in detail and assess its implications for your organisation. 

What is a workplace delegate?

A workplace delegate is a person elected or appointed in accordance with the rules of a union to be a delegate (ie Representative) for employees who are eligible to be members of the union in a particular business. Under the modern award term, delegates must give their employer written notice of their appointment or election as a delegate. A workplace delegate is an employee of the business and is not the same as a union organiser who is an employee or officer of the union.

On 15 December 2023 the Fair Work Legislation Amendment (Closing Loopholes) Act 2023 (Cth) introduced new protections and rights for delegates under sections 350A and 350C of the Fair Work Act 2009 (Cth). Following this the Fair Work Commission (FWC) published a Statement which outlined a new workplace delegates' rights term that was subsequently inserted into all 121 modern awards, and took effect on 1 July 2024.

The FW Act now requires employers to allow workplace delegates to reasonably communicate with other union members (and potential members) in the workplace about matters of industrial concern and to represent them in relation to their industrial interests.

Key changes to workplace delegates' rights

Workplace delegates now have expanded rights including:

1. Increased access to workplace facilities and resources to carry out their representational duties, such as meeting rooms, email systems and communication tools.
2. Being allowed to represent the industrial interests of members, and any other persons eligible to be a member, including in a dispute with their employer.
3. Employers allowing them reasonable communication with other union members (and potential members) in the workplace about matters of industrial concern.
4. Reasonable access to paid time for training, during normal working hours for the purpose of workplace delegate related training (not relevant for employers with fewer than 15 employees).

Employers who unreasonably refuse to deal with delegates, mislead them or hinder and obstruct the exercise of their rights as delegates will be liable under the General Protections provisions of the FW Act.

Changes to Union Right of Entry

Union officials' rights of entry have also been strengthened, including:

• Simplified access procedures: Unions may now access workplaces more readily to meet with members or investigate potential breaches of workplace laws or agreements.
• Additional protections for workers: Union representatives have broader powers to inspect records and gather information, promoting greater accountability.
• Notification requirements: While employers still receive notice of entry, they must ensure compliance without imposing unreasonable restrictions on union access.

Why employers need to take action

Failing to comply with these new laws can lead to legal penalities, operational disruptions and reputational damage. ALBA recommends the following steps to ensure compliance with the new requirements:

• Educate managers on the new delegates' rights term in modern awards, the entitlements it gives delegates n the workplace and the obligations on employers and managers when dealing with delegates, paricularly in regards to workplace disciplinary proceedings and disputes;
• Ensure delegates and eligible employees are aware of the conditions and limitations attached to the exercising of the new delegates' rights; and
• Update payroll systems so that they can process requests for paid delegate training leave.

How ABLA can help

As experts in this field, we offer tailored solutions to ensure you navigate these legislative changes with confidence. We can work with your organisation in the following ways:

• Policy drafting, development and review
• Training for managers
• Dispute resolution and mediation to minimise industry distruption to your business
• Ongoing support from audits to strategic advice.

The Delegates' Rights Training course is tailored to your business and industry and can be done in person or online. Get in touch if you're interested in learning more.

If these legislative changes impact your business, ensure you are meeting your legal obligations. Listen to the recent webinar below that goes into more detail about what you need to be across.