Fair Work Commission releases draft delegates’ rights term – What do Australian employers need to know?

The Fair Work Commission has now released a draft of the delegates’ rights term that will be inserted into every modern award and commence operating from 1 July 2024. 

The requirement to insert a delegates’ rights term into each modern award was one of the key measures in the Federal Government’s Closing Loopholes reform package. Section 149E of the amended Fair Work Act requires that each modern award include a delegates' rights term for any workplace delegates who are covered by the award.

The delegates’ rights term gives effect to the new slate of rights that were recently inserted into the Fair Work Act at sections 350A and 350C. These novel rights and obligations include:

• a new definition of ‘workplace delegate’, that is now defined as a person elected in accordance with the rules of an employee organisation (i.e., a union) to represent members of the union who work at a particular enterprise;
   
• an obligation that the employer allows workplace delegates:
  • reasonable communication with the members they represent;
  • reasonable access to the workplace and workplace facilities for representing members’ interests; and
  • reasonable access to paid time, during normal working hours, for the purposes of workplace delegate training (unless the employer is a small business with fewer than 15 employees),
     
• a new positive requirement that the employer must not:
  • unreasonably fail or refuse to deal with the workplace delegate; or
  • make a false or misleading representation to the workplace delegate; or
  • unreasonably hinder, obstruct or prevent the exercise workplace delegates’ rights under the Act, a modern award or an enterprise agreement.

Importantly for employers, any employer who follows a modern award delegates’ rights term will be deemed to have complied with these provisions under the Act.

What obligations are contained in the new draft term?

The FWC has been accepting submissions from employer groups and trade unions since 1 March 2024 on what the final term should look like. A Full Bench consisting of Vice President Asbury, Deputy President Binet and Commissioner Lim also conducted three separate days of hearings during April to hear firsthand from interested parties.

As a result of this consultation, the Full Bench published its draft modern award term on 10 May 2024. The draft term provides that a workplace delegate:

• may represent eligible employees in relation to:
  • consultation about a major workplace change or changes to rosters or hours of work;
  • resolution of individual or collective grievances or disputes;
  • performance management and disciplinary processes;
  • enterprise bargaining; and
  • any process or procedure in which employees are entitled to be represented;
     
• is entitled to ‘reasonable communication’ with 'eligible employees’. The term ‘eligible employees’ is defined as employees who are either members of the union or are entitled to be members of the union in accordance with the union’s rules. Reasonable discussion includes discussion about membership of the delegate’s union and consulting with the union in relation to representing their members. The reasonable communication can take place with an individual employee or on a collective basis and may take place ‘during working hours or work breaks, or before the start or after the end of work’;
   
• must be afforded reasonable access to the workplace and workplace facilities (as they exist in the workplace), including access to:
  • a room or area to hold discussions that is private and accessible to the delegate and employees;
  • a physical or electronic noticeboard;
  • electronic means of communication that are ordinarily used by the employer to communicate with eligible employees;
  • a lockable filing cabinet or other secure document storage area; and
  • office facilities and equipment including printers, scanners, photocopiers and wi-fi.
     
• can access up to 5 days of paid time during normal working hours for initial delegate training and 1 paid training day in each subsequent year, where the employer is not a small business and subject to the following rules:
  • no more than 1 delegate for each 50 employees can access the paid training leave;
  • the delegate must provide the start and finishing times and subject matter of the training to the employer as soon as practicable but no later than at least 5 weeks before the training commences;
  • the delegate must provide the employer with an outline of the training content on request;
  • the employer must advise the delegate whether the request to attend paid training is approved as soon as practicable but no later than at least 2 weeks before it is scheduled to commence; and
  • the delegate must provide the employer with evidence of attendance at the training within 7 days of the last day of the training.

How can employers prepare for the commencement of award delegates’ rights terms?

Firstly, employers should take some comfort from the protections in the draft term that place some reassuring safeguards on the exercise of these new and significant workplace delegate powers. These protections require that delegates continue to comply with their usual duties and obligations as an employee, including complying with reasonable workplace ICT and OHS policies. Delegates are also prevented from hindering, obstructing or preventing the normal performance of work, or preventing employees from exercising their right to freedom of association.

Further, the draft term clarifies that the delegates’ rights term does not require the employer to provide the delegate with any means of communication that would divulge the individual contact details of eligible employees. Further, nothing in the clause compels an employee to be represented by a workplace delegate without their agreement.

For employers with award-covered employees, the new modern award terms will mean:

• increased union involvement in workplace consultations and disputes, performance management processes and disciplinary proceedings;
   
• easier union delegate access to workplace facilities and communications systems to conduct union business, canvass for members and run union-directed campaigns;
   
• providing a new form of paid leave which will result in employees spending more paid time away from the workplace; and
   
• increased union access to employees, including during paid working hours.

Employers can prepare for the introduction of the delegates’ rights award terms in July 2024 by:

• equipping supervisors and managers with practical information about the incoming delegates’ term and how it may apply to your workplace. This will avoid potential contraventions of the obligations in the terms, and avoid potential disputes about what may be reasonable access to facilities or reasonable communication;
   
• ensuring payroll systems are up to date and equipped to process requests for paid delegate training leave;
   
• considering how the Company may facilitate reasonable access to electronic communication systems without divulging sensitive or confidential commercial or employee information;
   
• ensuring the workplace has fit-for-purpose facilities that can accommodate delegate meeting requests;
   
• considering whether any enterprise agreements that may apply to employees have an existing ‘workplace delegates’ or ‘employee representatives’ term that may contradict the draft term or that may need updating for ‘better off overall test’ purposes at the next round of bargaining; and
   
• ensuring delegates and eligible employees are aware of the conditions attached to the exercising of the new delegates’ rights so that delegates and employees are fully aware of what constitutes acceptable and unacceptable conduct.

Next steps

Once further feedback is considered, the Full Bench can make adjustments to the draft term and is currently scheduled to publish the final modern award terms on 28 June 2024, just before their commencement on 1 July 2024. 

As the current publishing schedule does not provide a lot of time between the release of the final form of the delegates’ rights terms and their commencement two days later, it is crucial that employers start preparing for their commencement well ahead of the final variations to the awards being published.