Workplace delegates' rights in Australia: what employers need to know

The new section 350A of the FW Act is a civil remedy provision which prohibits an employer of a delegate from:²

• unreasonably:
  • failing or refusing to deal with a delegate; or 
  • hindering, obstructing or preventing the exercise of the rights of a delegate under the FW Act, or under an applicable award, enterprise agreement or workplace determination; or
• knowingly or recklessly making a false or misleading representation to a delegate.

The burden of proving that the employer's conduct is not unreasonable lies with the employer.³ 

The new section 350C of the FW Act affords delegates with rights to: 

• represent the industrial interests of members of their union in the relevant enterprise, and workers who are eligible to be members, including in disputes with their employer;⁴
• reasonable communication with those workers in relation to their industrial interests for the purpose of representing those interests;⁵
• reasonable access to the workplace and workplace facilities where the enterprise is being carried on;⁶  and 
• reasonable access to paid time, during normal working hours, for the purposes of related training (unless the delegate is employed by a ‘small business employer’).⁷

These new rights of course raise significant questions: What is considered ‘reasonable’? Where will the line be drawn? How will the employer obtain the necessary degree of confidence required to push back on delegates who are potentially overstepping the mark, noting there are significant consequences for contravention?  

The FW Act provides limited guidance to assist employers to answer these questions. When determining what is ‘reasonable’ with respect to the rights of communication, workplace access and paid training leave, regard must be had to:⁸ 

• the size and nature of the enterprise;
• the resources of the employer; and
• the facilities available at the enterprise.

These concepts will no doubt be the subject of disputes. We have already seen some initial – albeit limited – case law dealing with the scope of delegates’ rights to reasonable representation and access under the FW Act, with a Full Bench of the FWC finding in one case that an employer did not breach section 350A when it refused to provide delegates with access to its internal employee messaging platform to communicate with employees during bargaining.⁹
 

The Award Term sheds some additional light on the delegates’ rights in the FW Act. If an Award Term applies to a delegate and an employer follows that Award Term, then the employer will automatically be deemed compliant with the corresponding provisions in section 350C of the FW Act. This will be a welcome relief to employers struggling to conceptualise how to meet the ‘reasonableness’ thresholds under that provision.

In summary, the Award Term provides that a delegate:

• must give the employer written notice of their appointment or election as a delegate within specific timeframes;
• may represent the industrial interests of eligible employees in matters including consultation about major changes, resolving disputes, disciplinary processes, bargaining and certain processes/procedures in industrial instruments or policies;
• is entitled to reasonable communication with eligible employees for the purposes of representing their industrial interests (including during working hours, work breaks and outside working hours);
• must be afforded reasonable access to the workplace and workplace facilities, with a non-exhaustive list of facilities that delegates must be permitted to access or have use of, subject to some exceptions (such as if the workplace does not have, or it is impractical to provide, access to a particular facility); and
• 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 certain requirements being met.

In 38 awards (which are listed in Attachment B to the Statement), there are pre-existing award terms that already afford rights and entitlements to delegates. Whilst the new Award Term has been inserted in addition to these pre-existing entitlements, the Award Term clarifies that only the term which provides the more favourable entitlement will apply. This leaves the employer with the task of comparing the new and old entitlements to determine which is more favourable. 

Importantly, the Award Term places some parameters around a delegate’s ability to exercise these rights. For example, when exercising such rights, delegates must comply with their employment duties and obligations, comply with the employer’s reasonable policies and procedures and not hinder/obstruct/prevent the normal performance of work. Delegates may also only represent an eligible employee where the eligible employee provides their consent. 

For enterprise agreements that employees were asked to vote on before 1 July 2024 (i.e. where voting for a proposed agreement opened before 1 July 2024, even if the voting period ends and the FWC approves the agreement after that date):¹⁰

• as a starting point, the employer will need to ensure that it affords delegates covered by the enterprise agreement with the rights in section 350C of the FW Act, irrespective of the terms of the enterprise agreement; and
• if the enterprise agreement contains additional delegates' rights, these will also need to be afforded by the employer.¹¹

Enterprise agreements that employees are asked to vote on on/after 1 July 2024 must contain a delegates' rights term.¹²  If that term is less favourable than the Award Term in the relevant underpinning award, then the enterprise agreement term will have no effect and the more favourable Award Term will apply instead.¹³

In bargaining, there is no question that unions will see the Award Term as a floor and press for even more expansive rights during negotiations. We have already seen an example of a union attempting to use the new FW Act and Award Term rights as a springboard to include even more favourable delegates’ rights terms in a workplace determination, and strip away employer protections contained in the Award Term (for example, by reducing delegates’ notification obligations).¹⁴