What employers should know about workplace delegates

Varying modern awards to include a delegates’ rights term 

Recent IR reforms provide new considerations for employers and workplace delegates. 

What happened

The Fair Work Legislation Amendment (Closing Loopholes) Act 2023 (Cth) (CL Act) received Royal Assent on 14 December 2023 and amended the Fair Work Act 2009 (Cth) (FW Act).  

The CL Act introduced significant changes:  

• Providing specific rights for workplace delegates 
• Requiring modern awards, enterprise agreements, and workplace determinations to include a delegates’ rights term 

These changes commenced in the FW Act on 15 December 2023. As such, employers must understand their obligations to ensure they are compliant. 

This article explores the Fair Work Commission's process to vary modern awards and include a delegates’ right term.

It also:  

• Provides an overview of the legislative changes relating to workplace delegates’ rights; 
• Outlines the final table for consultation and engagement tasks or events; and, 
• Details current modern award-specific terms dealing with workplace delegates 

Overview of the CL Act changes  

Delegates’ rights term  

Section 12 of the CL Act defines a delegates’ rights term as a term in a fair work instrument (e.g. modern award, enterprise agreement, workplace determination) that provides for the exercise of the rights of workplace delegates.  

Section 149E of the CL Act says a modern award must include a delegates’ rights term for workplace delegates covered by the award. This section applies to all modern awards in operation on or after 1 July 2024 (whether or not the award was made before that day).  

Definition of workplace delegate  

Under the CL Act, a workplace delegate is a person who is appointed or elected, as per the rules of an employee organisation, to be a delegate or representative for members of the organisation who work in a particular enterprise.  

Rights of workplace delegates  

Section 350C(3) of the CL Act specifies the rights of workplace delegates. A workplace delegate is entitled to:  

• Represent the industrial interests of members (both current and prospective) of the union or employee association, including in disputes with their employer;   
• Reasonable communication with members (both current and prospective) of the union or employee association, in relation to their industrial interests;   
• Reasonable access to the workplace and workplace facilities to carry out their duties as workplace delegates; and   
• Reasonable access to paid time during normal working hours for the purposes of related training (small business employers i.e. those with 14 or fewer employees, are excluded from this obligation).  

Importantly, a delegates’ rights term must provide, at the very least, for the exercise of the rights mentioned above (as set out in section 350C(3) of the CL Act).   

Employer obligations  

Under section 350C(4) of the CL Act, employers will be taken to have afforded a workplace delegate their rights if they have complied with the delegates’ rights term in the fair work instrument that applies to the workplace delegate. 

This section will enable employers to rely on the delegates’ rights term in the relevant award or agreement as a complete statement of their obligations under section 350C(3).  

Variation of modern awards to include a delegates’ rights term  

The FWC has commenced the process to vary all modern awards so they include a delegates’ rights term for workplace delegates. This process is a requirement following the passage of the CL Act and will involve significant consultation and engagement with stakeholders.  

By 30 June 2024, the FWC must make a determination varying modern awards that are, or will be, in operation on 1 July 2024, to include a delegates’ rights term. This will come into operation and take effect from 1 July 2024. The FWC is also required to publish the varied modern awards as soon as practicable after the variation is made. 

The aim of inserting a delegates’ rights term into modern awards, enterprise agreements, and workplace determinations, is to allow these instruments to provide more detailed rights for specific industries, occupations, and enterprises.   

The matter has now been delegated to a Full Bench of the FWC.  

Timetable  

Modern award-specific terms dealing with workplace delegates  

Existing modern award terms  

There are currently 121 industry and occupational modern awards.  

Every award includes model terms that relate to:  

• Consultation (about major workplace change and about changes to rosters or hours of work); and  
• Dispute resolution.  

Each of the above model terms deals with employee representatives.  

Audit of existing modern award terms  

Employees of the FWC undertook an audit of all modern awards to identify additional award-specific terms that currently deal with workplace delegates, employee representatives, and unions.  

Many of the award-specific terms discovered by the audit related to an entitlement to dispute resolution training leave however, other terms were also identified. These terms were associated with facilitative provisions, rostering arrangements, payment by results andminimum rates.  

In addition to the 121 industry and occupational modern awards, there are a further 34 modern awards including the Australian Government Industry Award 2016, enterprise modern awards, and state reference public sector modern awards. Each of these 155 instruments must be varied to include a delegates’ rights term.  

This article focuses solely on the 121 industry and occupational modern awards. 

Of the 121 modern awards audited: 

• 86 did not contain any applicable existing award terms; and  
• 35 contained applicable existing term award terms.  

Enterprise agreements and workplace determinations 

Under sections 205A and 273 of the CL Act, enterprise agreements and workplace determinations made after 1 July 2024 will need to include a delegates’ rights term.  

If a proposed enterprise agreement includes a delegates’ rights term that is less favourable than the equivalent provision in a modern award (or awards) covering the workplace delegate, the enterprise agreement term will be of no effect and the modern award term will apply (as it stands at that specific point in time).  

Enterprise agreements which the FWC and employees have approved prior to 1 July 2024, do not need to include a delegates’ rights term.  

What happens next?  

As a result of these changes, there may be an increase in claims for greater workplace delegates rights both at the modern award level (i.e. on an industry or occupational basis) and in enterprise bargaining.  

Employers who breach the rights of workplace delegates may be liable under the General Protections regime of the FW Act. Consequently, employers should: 

• Update their internal policies and procedures; and 
• Ensure their managers receive training about the rights and protections afforded to workplace delegates. 

Business Chamber Queensland will continue to monitor the FWC’s modern award variation process development and provide support to members as decisions are reached and changes come into effect.