Workplace Delegates – do you understand your obligations as an employer?

A workplace delegate is an employee who is elected or appointed by a union to represent union members within their workplace. They are also known as union reps.  The passing of the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 (Closing Loopholes laws) introduced new rights and protections for workplace delegates which commenced on 15 December 2023.

The new rights allow workplace delegates to represent the industrial interests of union members and potential members, including in disputes with their employers. Workplace delegates are employees who are appointed as representatives in the workplace under their union’s rules.

Workplace delegates can represent the workers in:

• consultation about major workplace changes, rosters, or hours of work,
• resolution of disputes,
• disciplinary processes,
• enterprise bargaining, and
• any other process or procedure in an award, agreement or policy where eligible employees are entitled to be represented and which concerns their industrial interests.

Employers’ obligations

Employers are required to provide workplace delegates with reasonable access to the workplace and workplace facilities to hold consultations and discussions with workers. However, if the workplace doesn’t have the facility or if it’s not practical to provide access due to operational requirements, the employers aren’t required to provide such access.

Employers are also required to pay workplace delegates to attend the training, during normal working hours, related to their role as a delegate except if you are a small business that employs less than 15 employees.

Employers are prohibited from taking negative actions against workplace delegates because they elect to exercise their rights, including terminating their employment, denying their pay/leave entitlement, or demoting them or cutting their hours of work.  Significant civil penalties may be imposed on the employer who fails to comply with their obligations.

Workplace delegates’ obligations

Despite the rights and protections workplace delegates have, they are no different to your other employees. This means they must fulfil their duties and obligations as a worker. This includes following reasonable policies and procedures such as codes of conduct, workplace health and safety, and acceptable use of information communication technology resources. Additionally, workplace delegates must not hold up the normal performance of work or prevent workers from exercising their right to freedom of association.

Need assistance?

The MBA Workplace Relations and Legal team can assist you in understanding and provide you with guidance on how to comply with your obligations under the Fair Work legislation. You can reach the team on (02) 6175 5000.