Workplace Delegates Rights

A recent change to the Fair Work Act requires that all Modern Awards effective 1/7/2024 and Enterprise Agreements negotiated after 1/7/2024 contain provisions regarding the rights of Workplace Delegates. The Fair Work Commission has now published the terms of the model clause. Refer to the commentary in this update about the scenario where a Modern Award already contains Workplace Delegate provisions. 

Who is a Workplace Delegate 

The Act defines a Workplace Delegate as a person who is appointed or elected according to the rules of an employee organization.

For an employee to exercise their right as a Workplace Delegate, they need to notify the employer in writing. If the employer requests, they must provide evidence that would satisfy a reasonable person, i.e., a statutory declaration.

Who can they represent?

It is important to understand that a Workplace Delegate has the right to represent the industrial interests of both current members and eligible members. 

It's essential to understand who is a Workplace Delegate and what they can and can't do. An organisation's policies must be updated to ensure they are clear on the rights of Workplace Delegates and people leaders are educated about the rights of Workplace Delegates. Workplace Delegates Entitlements 

Time to Conduct their Duties

A Workplace Delegate is entitled to time during working hours, meal breaks and before or after work to communicate with employees to represent their industrial interests. This includes discussing union membership.

They are entitled to trade union training leave of up to five days in the first year (Note: the five-day training leave does not apply to a small employer with fewer than 15 employees).

Facilities

A Workplace Delegate is entitled to facilities that enable them to carry out this role. These facilities include access to a room, a computer, and Wi-Fi facilities such as a filing cabinet and printer. Changes to Industrial Instruments

Modern Awards

Most Modern Awards do not currently contain provisions regarding Workplace Delegates. If an Award currently contains Workplace Delegates provisions, the new model terms will prevail unless the current provisions provide superior terms, in which case the superior provisions of the current clause will prevail. 

Enterprise Agreements

All Enterprise Agreement made from the 1/7/24 must contain Workplace Delgates rights clauses. Implementation Plan

1 . Understand if you have any Workplace Delegates.

2. Establish a process for Workplace Delegates to nominate they are Workplace Delegates.

3. Be proactive in ensuring their rights are observed.

4. Educate your Key stakeholders about these rights.

5. A critical factor is the ability of Workplace Delegates to recruit new members and how an organisation provides boundaries on what they can or can't do, ensuring their full rights are met. Potential Adverse Action

Workplace Delegates have workplace rights, and an employer taking action against a Workplace Delegate for fulfilling these rights may breach the general protection provisions.

Confidential Information about Employees 

When providing information to a Workplace Delegate in electronic form, the employer does not need to provide individual contact details for eligible employees.