Following amendments to the Fair Work Act 2009 (Cth) (FW Act), from 15 December union delegates have new protections and entitlements.

Union delegates are employees who are appointed or elected under the rules of their union to represent members in a particular enterprise.

3 new protections

The new protections prohibit an employer from:

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

Employers would still be able to undertake reasonable management action, carried out in a lawful way. However, the employer will bear the burden for establishing that their conduct is not unreasonable.

The protections would not apply for any conduct required by or under a law of the Commonwealth or a state or territory, e.g. action taken under work health and safety legislation to ensure the health and safety of workers while at work. For instance, if a workplace delegate is bullying management or intimidating employees, the employer can take reasonable action in response to that conduct.

The protection will not apply to all officials of a union. It will also only apply to employees of the employer who are delegates of registered unions.

3 new entitlements

The new FW Act provisions entitle union delegates to:

• reasonable communication with members, and any other persons eligible to be members, in relation to their industrial interests;
• reasonable access to the workplace and workplace facilities where the enterprise is being carried on; and
• reasonable access to paid time, during normal working hours, for the purposes of related training.

An employer is only required to provide facilities to the extent that this would be reasonable. What is reasonable depends on:

• the size and nature of the relevant enterprise;
• the resources of the employer at the enterprise; and
• the facilities available at the relevant enterprise.

Small business employers would be exempt from the obligation to provide union delegates paid time for undertaking training for their role as a workplace delegate.

In 2024, enterprise agreements must include a term that provides for the exercise of the rights of union delegates. This will apply to those agreements that are voted on by employees after 1 July 2024. This term will operate in lieu of the above FW Act provisions regarding reasonable communications and access for delegates.