Rights and protections for workplace delegates set to increase under new proposal

The Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 (Bill) proposes various amendments to the Fair Work Act 2009 (Cth) introducing new workplace rights and protections for union delegates.

The term "workplace delegate" is defined broadly to include a person appointed or elected in accordance with the rules of an employee organisation to be a delegate or representative for members of the organisation who work in a particular enterprise. It does mean that the rights and protections only apply to delegates of a registered organisation of employees. The rights and protections also extend to workplace delegates of regulated workers including "employee-like workers" and "regulated road transport contractors".

The rights of a workplace delegate

The Bill proposes that legislative rights be provided to workplace delegates. Under the new provisions in the FW Act, a workplace delegate will have the right to:

• represent the industrial interests of members, and any other persons eligible to be a member, including in a dispute with their employer;
• reasonable communication with members, and any persons eligible to be a member, in relation to their industrial interests;
• reasonable access to the workplace and workplace facilities for the purpose of representing those interests; and
• reasonable access to paid time, during normal working hours for the purposes of related training. This right will not apply though if the delegate's employer is a small business.

Determining what is "reasonable" will depend on the size and nature of the enterprise, the resources of the employer and the facilities available at the enterprise.

Delegates' rights term

It is proposed that from 1 July 2024, all modern awards, new enterprise agreements and new workplace determinations are to include a term relating to the rights of workplace delegates. It is expected that such terms will go into greater detail for particular industries, organisations and enterprises over and above the minimum rights under the FW Act.

In relation to enterprise agreements, this requirement to include a delegates' rights term will only apply to enterprise agreements put to a vote on or after 1 July 2024.

If a delegates' rights term in an enterprise agreement is less favourable than that of a relevant modern award, then the modern award term will be taken to be a term of the enterprise agreement. Where numerous modern awards apply, it will be the most favourable delegates' rights term of those awards.

Protection for workplace delegates

It is also proposed that the FW Act be amended to provide specific protections for workplace delegates.

Under the proposed changes, an employer would be prohibited from:

• unreasonably failing or refusing to deal with a workplace delegate;
• knowingly or recklessly making a false or misleading misrepresentation to a workplace delegate; and
• unreasonably hindering, obstructing or preventing the exercise of rights of a workplace delegate.

This will be a civil remedy provision, and only apply where an employer is dealing with a workplace delegate acting in that capacity.

In any proceedings, the onus will also be on the employer to show that their conduct is not unreasonable.

For more information about the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 and how the changes might apply to your organisation, please contact Lander & Rogers' workplace relations and safety legal experts.