The Federal Closing Loopholes legislation provided for amendments to the Fair Work Act (2009) and the inclusion of a Workplace Delegates Rights clause into Awards and Enterprise Agreements.
The amendments also provided for general protections for delegates when carrying out their role in the workplace, including employers misleading or obstructing delegates or refusing to deal with them.
Since the legislation was passed the Fair Work Commission has sought input from interested parties before formulating a generic Award clause for insertion into all Modern Awards.
The following are the key parts of the new Workplace Delegates Award clause:
- The workplace delegate must provide written confirmation to the employer of their appointment or election as a delegate.
- The workplace delegate may represent the industrial interests of eligible employees who consent to be represented in matters pertaining to consultation about major change, changes to rosters or hours of work, resolution of disputes, disciplinary processes, enterprise bargaining and any Award or Agreement processes allowing employees to be represented.
- The workplace delegate may talk to employee during work hours or breaks about membership and representation.
- The employer must provide (with some practical limitations) a workplace delegate with a meeting room, noticeboard, electronic communication ordinarily used in that workplace, lockable filing cabinet and office facilities such as printers and photocopiers.
- An entitlement and access to training including paid leave to attend courses. One workplace delegate per 50 eligible employees is able to access 5 days paid time during normal working hours. Appropriate notice must be given to the employer.
- There are some limitations on the workplace delegate exercising their duties in relation to WHS practices, adherence to policies and interrupting work.
The above is a summary only. Employers are advised to check the applicable Award clause for the full wording of this change.
Enterprise Agreements negotiated after 1 July 2024 are required to have a workplace delegates rights clause. It is expected that such clause have similar rights to the above.
Employers should note that new rights have been created for employees with this change. An employee previously had the right to request a ‘support’ person who was not allowed to take part in, or represent employees in, disciplinary discussions. The above changes allow an employee to be represented (talk on the employee’s behalf) in any disciplinary discussion by a delegate where the employee consents to this. This could make those discussions a lot more difficult to conduct.
Additionally, there could be an interesting clash between a workplace delegate deciding to talk to employee during working hours and the requirement they do not hinder, obstruct or prevent the normal performance of work.
Employers should contact Hunter Employee Relations where they have a union presence on site and wish to discuss the management of these changes.
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Kind Regards
Michael Schmidt
M 0438 129 728
www.hunteremployeerelations.com.au
Industrial Relations - Employment Law - Workplace Performance
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