In a process of bargaining for an enterprise agreement made under the Fair Work Act 2009 (Cth) (FW Act) a person is a bargaining representative of an employee who will be covered by the agreement if the employee appoints, in writing, the person as their bargaining representative for the agreement. Often an employee may appoint themselves to be a bargaining representative.

Generally speaking, employee bargaining representatives are not entitled to be paid by their employer during the time they attend bargaining meetings. However, there are avenues the employee could pursue to force the employer to give them that entitlement.

If the person is a workplace delegate appointed or elected in accordance with the rules of a union to represent union members at the employer’s workplace, they will be entitled under section 350C of the FW Act (which commenced in December 2023) to:

• represent the industrial interests of those members, and any other persons eligible to be such members; and
• have reasonable communication with those members, and any other persons eligible to be such members, in relation to their industrial interests.

If the bargaining meetings occur during the employee’s working hours, the above rights might translate into a right to be allowed to attend the meetings rather than perform their normal duties. This is unlikely to extend to a right to be paid for time associated with attending bargaining meetings held outside the employee’s normal working hours.

Of course, many employee bargaining representatives are not workplace delegates of unions.

Under section 228 of the FW Act, when bargaining for a proposed enterprise agreement, an employer must:

• refrain from capricious or unfair conduct that undermines freedom of association or collective bargaining; and
• recognise and bargain with the other bargaining representatives for the agreement.

If the employer acts inconsistently with these principles, the Fair Work Commission (FWC) can issue orders requiring the employer to comply.

It might be said that refusing an employee bargaining representative paid time to attend bargaining meetings undermines their capacity to represent the employees who appointed them in the bargaining process, exposing the employer to a bargaining order.

In Bowers v Victoria Police (2011), the FWC observed that when an employee acts as a bargaining representative, it is essentially a voluntary act, and the employer is not failing to bargain in good faith by declining to pay them. However, many employers wish to have employees hear, firsthand, the needs and expectations of the enterprise. Bargaining is often about building trust and paid leave facilitates the maximum level of participation to enable clear understandings of the business of the enterprise and matters that impact upon it.