In a December bulletin, we wrote about the new protections in the Fair Work Act 2009 (Cth) (FW Act) for employees appointed or elected under the rules of their union to represent employees in a particular enterprise as workplace delegates.

From 1 July 2024, these rights have been amplified for award-covered delegates and their employers following the insertion of a new delegates’ rights term for workplace delegates by the Fair Work Commission.

The additional rights and obligations created by this clause are outlined below.

Updating employer of delegate status

Before exercising entitlements granted by the clause, a workplace delegate must give the employer written notice of their appointment or election as a workplace delegate. If requested, the workplace delegate must provide the employer with evidence that would satisfy a reasonable person of their appointment or election. An employee who ceases to be a workplace delegate must give written notice to the employer within 14 days.

Matters about which a delegate can represent an employee

A delegate can represent an employee for:

• 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; 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.

An employee doesn’t have to be represented by a workplace delegate without the employee’s agreement.

What can a delegate do about these matters?

During working hours or work breaks, or before or after work, the workplace delegate can communicate with employees who are members of the delegate’s union (or potential members) for the purpose of representing their industrial interests on these matters and to discuss union matters.

What does the employer have to provide to a delegate?

The employer must provide workplace delegates with:

• access to or use of a room or area to hold discussions that is fit for purpose, private and accessible;
• access to a physical or electronic noticeboard;
• access to an electronic means of communication ordinarily used in the workplace by the employer to communicate with eligible employees and by eligible employees to communicate with each other, including access to Wi-Fi;
• access to a lockable filing cabinet or other secure document storage area; and
• office facilities and equipment including printers, scanners and photocopiers.

These don’t have to be provided if the workplace does not have the facility, or operational requirements make it impractical to provide access to or use of the facility at the time or in the manner sought, or the employer does not have access to the facility at the enterprise and is unable to obtain access after taking reasonable steps.

Paid training leave

Unless the employer is a small business employer, the employer must provide a delegate with access to up to 5 days of paid time during normal working hours for initial training and at least 1 day each subsequent year, to attend training related to representation of the industrial interests of eligible employees.

A cap applies: one workplace delegate per 50 employees.

Approval for training

The delegate must give the employer not less than 5 weeks’ notice (unless the employer and delegate agree to a shorter period of notice) of the dates, subject matter, daily start and finish times of the training, and the name of the training provider. If requested by the employer, the workplace delegate must provide the employer with an outline of the training content.

The employer must advise the workplace delegate not less than 2 weeks from the day on which the training is scheduled to commence whether the workplace delegate’s access to paid time during normal working hours to attend the training has been approved. Such approval must not be unreasonably withheld.

The workplace delegate must, within 7 days after the day on which the training ends, provide the employer with evidence that would satisfy a reasonable person of their attendance at the training.

Following the usual rules in a workplace

Workplace delegates must:

• observe reasonable policies and procedures of the employer, including reasonable codes of conduct and requirements in relation to workplace health and safety and acceptable use of ICT resources;
• not hinder, obstruct or prevent the normal performance of work; and
• not hinder, obstruct or prevent employees exercising their rights to freedom of association.

Employers must not provide a delegate with access to electronic means of communication in a way that provides individual contact details for eligible employees, e.g. email addresses and mobile phone numbers.