Over the past century or so, two trends have pervaded Australian industrial relations as consistently as death and taxes.
The first is that legal regulation has become ever more complex. The Commonwealth Conciliation and Arbitration Act of 1904 ran over 22 pages. The current Fair Work Act is well over 1300 (leaving to one side, the regulations, the “registered organisations” act, and the plethora of other state and federal laws concerning employment).
Second, union membership has steadily declined. It is now down to 12.5% of employees overall (and likely much less than 10% in the private sector). That compares to over 50% in the mid 1970s.
It’s interesting to think about the correlation between those trends. The past 18 months have seen a new explosion of employment related rights and regulations, with many of the changes directed at entrenching union relevance.
One example are the new rights for workplace delegates.
The legislative provisions
The “Closing Loopholes” reforms to the Fair Work Act introduced a suite of new rights and protections for union delegates.
This included:
- a right to represent the industrial interests of those who are, or are eligible to be, members of the union (including in workplace disputes);
- “reasonable communication” with these individuals, along with reasonable access to the workplace and facilities where the relevant enterprise is being carried on; and
- paid time for delegate training during normal working hours.
Importantly, there is no express requirement that the persons a workplace delegate seeks to represent or communicate with have the same employer as the delegate. The provisions provide a right to reasonable workplace access where the “enterprise” – which includes an activity, project or undertaking – is carried on. This is primarily relevant where multiple employers carry on operations in a common location.
At the same time, employers are subject to new civil penalty obligations in relation to union delegates they employ – including prohibitions on unreasonably failing or refusing to deal with a delegate; or hindering, obstructing or preventing the exercise of their rights.
The model award term
Of equal significance is a new requirement that by July 1, all modern awards also include a delegates’ rights term. This will be taken to be a term of any enterprise agreement made after this time, unless the enterprise agreement contains a delegates’ rights term that is at least as favourable.
These award delegates rights terms assume additional significance, in that an employer who complies with them will be taken to have afforded the delegates rights now included in the Fair Work Act.
Following a consultation process, on 10 May 2024, Fair Work Commission President Hatcher J issued a draft delegates’ rights model term (Model Term) for comment. It can be accessed here.
A number of observations can be made about the Model Term:
- It is somewhat lengthy – running over more than 3 pages. (Remember that a century ago the federal industrial relations legislation as a whole was just over 20 pages).
- The arenas in which a delegate is entitled to represent employees is broadly stated in a non-exhaustive list. Most of what is included in the list are circumstances where a delegate has always been able to play a representative role. For instance, enterprise agreement dispute resolution terms must allow for the representation of employees, and commonly this would allow for an employee to appoint a workplace delegate as their representative for that process.
- However, the inclusion in the Model Term of a right for delegates to represent employees in “performance management and disciplinary processes” is novel, and will cause concern for many employers. Delegates also have a right under the Model Term to represent employees in enterprise bargaining, although they will not strictly be a “bargaining representative” and subject to the rights and obligations of the “good faith bargaining requirements”. Accordingly, these delegates rights terms will impact on the bargaining framework.
- Delegates have a right under the model term to communicate with other employees for the purposes of their delegates rights. This can occur during working hours. While the heading of the clause refers to “reasonable” communication, the substantive entitlement is not expressly subject to any such limitation.
- There are relatively extensive rights for delegates to access the workplace and facilities, although only to the extent that the employer has them. This includes (in short) access to appropriate rooms or areas, notice boards, a lockable filing cabinet, means of communication and other facilities. This is not a list of examples, and it is not constrained by “reasonableness”; a delegate has a right to each listed item (again, unless the employer does not have them).
- Delegates are entitled to up to 5 days’ paid time during working hours for relevant training (and 1 day each subsequent year).
- There’s no limit on how many delegates might exist – and therefore have the various rights set out above – in each workplace (although the paid training requirement is limited to 1 delegate per 50 employees). Employers will however know who their delegates are, because delegates must give written their employer notice of election or appointment, and also a further notice when they cease to be a delegate.
The Model Term contains some guardrails around how delegates are to exercise their rights. However, there is to some extent a lack of clarity around how these sit with the rights themselves.
For instance, delegates must comply with their duties and obligations as an employee. They must also not hinder, obstruct or prevent the normal performance of work. But what if this is a necessary consequence of the delegate exercising their rights? As noted above, a delegate has the right to communicate with other employees during working hours. Does this entitle the delegate to stop performing their own work to do so?
Moreover, unlike the statutory rights (with which an employer is taken to have complied if they comply with the relevant award or enterprise agreement term), it seems clear from the Model Term that a delegate’s rights extend only to those who (or are eligible to be) members, and who have the same employer. This interaction is also unclear.
Watch this space
As feedback is received on the Model Term, it is likely that modifications will be made (and we’ll publicise further details when they become available).
Regardless, as they take effect this new array of delegates rights will almost certainly become a prominent battleground at least for some employers, and a significant tool in the union’s armoury in their struggle to build relevance.
That is despite the relatively modest attention these changes received in the public debate as a consequence of the sheer number of new rights and regulations introduced as part of the “closing loopholes” reforms, all competing for attention.
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The views expressed in this article are general in nature only and do not constitute legal advice.
Please do not hesitate to contact us if you require specific advice tailored to the needs of your organisation in relation to the implications of these changes for your organisation.