Changes to Workplace Delegates’ Rights term

As members are aware, the Fair Work Legislation Amendment (Closing Loopholes) Act 2023 (Cth) introduced certain rights and protections for workplace delegates, which was subsequently included as a standard term in all modern Awards from 1 July 2024.

Challenge to the Workplace Delegates’ Rights term

The Construction, Forestry and Maritime Employees Union (CFMEU), Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and the Mining and Energy Union (MEU) initiated proceedings in the Federal Court of Australia, challenging the standard term as included in 9 modern Awards. The applicants alleged that the current term included by the Fair Work Commission (FWC) erroneously limits the rights of a workplace delegate conferred by the Closing Loopholes Act. The 3 areas of challenge are summarized as follows:

1. The Term confined to employees of employer: The Term confined the rights of the workplace delegate to represent only those employees who are members of the employees organisation, or eligible to be members, (collectively referred to as relevant members) if those employees are employed by the delegates’ employer.
2. Representation communication limited: The workplace delegates’ right to communicate with relevant members is confined to communication for the purpose of representing their industrial interests only.
3. Obligation not to hinder, obstruct or prevent normal performance: The Term requires the workplace delegate not to hinder, obstruct or prevent the normal performance of work, regardless of whether to do so is a reasonable exercise of the delegate’s rights.

Outcome and Decision of the FWC

The Federal Court of Australia ordered that the workplace delegates’ rights term in the 9 modern Awards be quashed in its current form. The FWC initiated proceedings to vary the current Term to comply with section 350C of the Fair Work Act 2009 (Cth) and has now published its Decision in respect of these changes on 23 January 2026. The Term will be varied (inter alia) as follows:

1. The definition of ‘eligible employee’ will be replaced with ‘eligible worker’: Previously the workplace delegate could only exercise its rights in respect of a relevant member, if that employee was employed by the employer of the workplace delegate. The definition of ‘eligible employee’ has been replaced with a new definition of eligible worker. This expands the individuals that may be represented to all those relevant members who work in a particular enterprise. It removes the requirement that the relevant members must be employed by the workplace delegates’ employer.

In practical terms, this means that a workplace delegate may represent all workers on a particular site, regardless of employer or employment arrangement(i.e. labour hire).

2. Representation communication expanded: The workplace delegate was previously only permitted to communicate with relevant members for the purpose of representing their industrial interests. This has been expanded to include communication in relation to relevant members’ industrial interests.
3. Workplace Representative obligations: The Term has been clarified in respect of the workplace delegates’ obligations.
   1. A workplace delegate must comply with their duties and obligations as an employee; and
   2. Not hinder, obstruct or prevent the normal performance of work

Other than in the reasonable exercise of their rights under the Term.

A copy of the decision and the new Workplace Delegates’ Rights Term can be found here.

The Workplace Delegates’ Rights Term, as varied, is deemed to be in effect from 1 July 2024.

While these changes may seem minor, the varied Term does provide an expansion of the Workplace Delegates’ rights in as far as it relates to the eligible members that may be represented, the communication that may be exchanged and its obligations to the employer.

For questions about these changes or your rights and obligations under the Award, contact the Workplace Relations Team:

📞 (02) 6175 5900
📧 workplace@mba.org.au