What every employer needs to know about workplace delegates
What every employer needs to know about workplace delegates
As an employer, do you have a clear understanding of workplace delegates’ roles, entitlements and protections? If not, now is the time for a refresher!
With new legislation having recently come into effect on 1 July 2024, a number of changes have been made concerning workplace delegates (a person elected under union rules to represent employees of a business) – including their insertion into every modern award.
In this week’s Akyra blog, we take a look at the role of workplace delegates, their rights according to the new legislation, and their inclusion in modern awards.
Workplace delegates: an explainer
A workplace delegate is a person elected or appointed in accordance with the rules of a union to be a delegate (i.e. representative) for employees who are eligible to be members of the union in a particular business. Any such elected delegate must give their employer written notice of their appointment or election as a delegate.
On notification of an employee is a workplace delegate, the employer has an obligation to allow workplace delegates to do the following:
- Workplace delegates may represent the industrial interests of eligible employees who wish to be represented by the delegate in relation to:
- consultation about major workplace change;
- consultation about changes to rosters or hours of work;
- resolution of disputes;
- disciplinary processes;
- enterprise bargaining where the workplace delegate has been appointed as a bargaining representative or is assisting the union with enterprise bargaining; and
- any process or procedure within an award, enterprise agreement or policy of the employer under which eligible employees are entitled to be represented and which concerns their industrial interests.
- Workplace delegates are entitled to ‘reasonable communication’ with ‘eligible employees’.
Eligible employees are other workers in the workplace who are either members of the same union as the delegate or entitled to be members of the same union.
Reasonable communication includes discussing membership of the delegate’s union and representation on eligible employees. The communication can take place ‘during working hours or work breaks, or before work’.
- Workplace facilities. Workplace delegates have the right to access private spaces to hold discussions, a noticeboard, secure storage, email and other standard office facilities including printers, photocopiers and wi-fi. However, an employer is not required to provide access or use of facilities when:
- they do not have the facility;
- due to operational requirements it would be impracticable to provide access to or use of the facility in the manner sought; or
- there is no access to the facility and are unable to obtain access after taking reasonable steps.
- Delegate Paid Training. Employers not covered by the Small Business Code (i.e. workforce of >15) are required to allow workplace delegates to access paid training during normal working hours subject to the following conditions:
- No more than one workplace delegate per 50 eligible employees (determined on the day a delegate requests to attend training and eligible employees includes full-time, part-time and regular casual employees).
- No more than five days to attend initial training and at least one day each subsequent year.
- The delegate must give their employer the start and finish times of the training, the subject matter of the training and the name of the training provider at least five weeks before the training commences (or a shorter period where agreed).
- If requested by an employer, the delegate must provide an outline of the training content.
- The delegate must provide evidence of attendance at the training to their employer within seven days of the training ending.
Protections for workplace delegates
As outlined below, there are a number of protections in place for workplace delegates. Employers 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 of workplace delegates’ rights under the Act, a modern award or an enterprise agreement.
Conditions on workplace delegates
Workplace delegates are subject to a number of fundamental conditions when seeking to exercise their delegates’ rights – i.e. delegates:
- must comply with their duties and obligations as an employee;
- must comply with reasonable policies and procedures of their employer including in relation to safety and IT;
- must not hinder, obstruct or prevent the normal performance of work; and
- must not hinder, obstruct or prevent eligible employees exercising their rights to freedom of association.
Modern awards with existing delegates’ rights
Alongside the delegates’ right clause, the FWC has inserted an interaction clause into 38 modern awards which already had existing clauses dealing with delegate rights. This clause states that where an existing workplace delegates’ clause is more favourable than the new delegates’ rights clause term, then the existing clause and entitlements shall continue to apply instead. For a full list of all 38 modern awards impacted – see Attachment B in the determination HERE.
FAQs
- Is this now over and settled?
The FWC has decided delegates’ rights term will now be reviewed after 12 months of operation to deal with any issues which arise as a result, both broadly and, in relation to specific awards. The FWC has foreshadowed that it is open to any interested parties (including unions) to apply to the FWC for a variance of the new delegates’ rights term in specific awards; potentially introducing a unique delegates’ rights clause specific to a particular award.
- I have an enterprise agreement. Does this impact me?
Existing enterprise agreements are not affected immediately by the new delegates’ rights term in modern awards, but employers are strongly encouraged to consider how the new rules will impact future bargaining. As of 1 July 2024, all new enterprise agreements voted on must include a delegates’ rights term that is at least as favourable as the one in the relevant modern award.
- Can a workplace delegate interrupt an employee in their ordinary work and stop them working?
There is nothing stopping a workplace delegate from communicating with employees during work hours so long as their communication is reasonable, and they are doing so in relation to eligible employees’ industrial interests. However, whilst workplace delegates have the right to communicate, there is no corresponding right on employers to allow employees to stop work, including to have discussions with workplace delegates.
- How does this impact investigations and disciplinary meetings?
Workplace delegates have the right to represent eligible employees in relation to disciplinary processes. Unlike the typical support person who may attend this type of meeting but are not entitled to advocate for an employee, this means workplace delegates are allowed to speak/advocate/argue on an employee’s behalf. This is a significant change and will mean managers will need to be skilled at ensuring the responses they receive from a delegate truly represent an employee’s views/account/opinion etc.
There are also management processes (e.g. investigations and performance management discussions) that may ultimately result in disciplinary action (e.g. warning letters or performance improvement plans) which become areas of dispute. This could occur where the line when it is unclear or blurred when an investigation or performance management process ends and a disciplinary process begins.
- If I get this wrong, what are the consequences?
Employers are prohibited under the Fair Work Act from:
- unreasonably failing or refusing to deal with a workplace delegate; or
- knowingly or recklessly making a false or misleading representation to a workplace delegate; or
- unreasonably hindering, obstructing or preventing the exercise of the rights of a workplace delegate.
Employers in breach can face fines of up to $19,800 for an individual and up to $99,000 for a company.
- The rights and entitlements of workplace delegates are also ‘workplace rights’.
Accordingly, if an employer was to take ‘adverse action’ (e.g. dismiss, treat them differently, demote them, cut their shifts) against an employee for exercising their rights as a delegate, they will have breached the general protections provisions of the Fair Work Act and could face similar fines of up to $19,800 for an individual and up to $99,000 for a company per breach.
- I’ve got a union delegate, but the union has never notified me.
Under the modern award term, before exercising a workplace delegate entitlement, an employee who is a delegate must give their employer written notice of their appointment or election as a workplace delegate. If an employer requests proof or evidence this must also be provided. Similarly if an employee ceases to be a delegate, they must give written notice to their employer within 14 days. It is important to be aware this obligation does not apply to employees who are not modern award covered, but who have delegates’ rights and entitlements under the Fair Work Act.
Key takeaways
Akyra suggests that, where you have employees covered by a modern award, you review any new delegates’ rights clause and assess its implications for your organisation. Full modern award delegates’ rights determination can be found HERE.
Where there is likely to be impact for your organisation in relation to the new delegates’ rights and given the implementation date of 1 July 2024, it is recommended that you:
- Educate managers on the new delegates’ rights term in modern awards, the entitlements it gives delegates in the workplace and the obligations on employers and managers when dealing with delegates, particularly in relation to workplace disciplinary proceedings and disputes;
- Ensure delegates and eligible employees are aware of the conditions attached to the exercising of the new delegates’ rights; and
- Update payroll systems so requests for paid delegate training leave can be processed.
If you require any specific assistance as a result of the new delegates’ rights, Akyra is available to assist. Please contact us at connect@akyra.com.au for advice that is pertinent to your organisation’s circumstances.
Source: Parts of this blog have been adapted from content originally published by Australian Business Lawyers & Advisors.
Disclaimer – Reliance on Content
The material distributed is general information only. The information supplied is not intended to be legal or other professional advice, nor should it be relied upon as such. You should seek legal or professional advice in relation to your specific situation.
