Closing Loopholes Act – workplace delegates’ rights

This Alert summarises the changes in relation to workplace delegates’ rights following the passage of the Fair Work Legislation Amendment (Closing Loopholes) Act 2023 (Closing Loopholes Act).

What is a ‘workplace delegate’ and what are the rights?

A ‘workplace delegate’ is defined broadly to mean ‘a person appointed or elected, in accordance with the rules of an employee organisation [Union], to be a delegate or representative (however described) for members of the organisation who work in a particular enterprise.’

From 15 December 2023, the Closing Loopholes Act introduces new rights for ‘workplace delegates’ including:

• a right to represent the industrial interests of Union members and potential members, including in disputes with their employer;
• ‘reasonable’ communication with Union members and potential members in relation to their industrial interests;
• for the purpose of representing those interests:
  • ‘reasonable’ access to the employer’s workplace and facilities;
  • ‘reasonable’ access to paid time, during normal working hours, for the purposes of related training (except if the employer is a small business employer).

What is reasonable will require consideration of the size and nature of the enterprise, the employer’s resources and available facilities at the enterprise.

In any proceedings, the onus of proving the conduct of the employer is not unreasonable lies with the employer.

Modern Award and Enterprise Agreement terms

The amendments require the Fair Work Commission to vary existing modern awards to include ‘delegates’ rights terms’; and the inclusion of a compliant delegates’ rights term in all modern awards and future enterprise agreements, from 1 July 2024.

It is expected that the modern awards and agreements will go into greater detail for particular industries, occupations and enterprises, and where that is the case, the Closing the Loopholes Act confirms that ‘employer can rely on the [award or agreement term] as a complete statement of their obligations’.

The Fair Work Commission has released a proposed timetable to support consultation on the making of the delegates’ rights terms in all modern awards:

• Week beginning 19 February 2024 – Consultations with peak councils;
• 1 March 2024 – Parties to lodge submissions and proposed workplace delegates’ rights terms; including any award specific terms required;
• 28 March 2024 – Parties to lodge submissions in reply;
• Week beginning 8 April 2024 – Consultation sessions with interested parties;
• Week beginning 6 May 2024 – Draft award terms published for comment;
• 17 May 2024 – Comments on draft award terms due;
• 28 June 2024 – Final determinations varying modern awards published;
• 1 July 2024 – Determinations come into operation.

New Protections

In addition to these new rights, the Closing Loopholes Act introduces new general protections for workplace delegates. An employer of a workplace delegate must not, in relation to a workplace delegate acting in that capacity:

• unreasonably fail or refuse to deal with the workplace delegate; or
• knowingly or recklessly make a false or misleading representation to the workplace delegate; or
• unreasonably hinder, obstruct or prevent the exercise of the rights of the workplace delegate under the Fair Work Act or a fair work instrument.

This is a civil remedy provision, and employers may be subject to significant financial penalties for breaches.

What do the changes mean for employers?

The amendments provide new statutory rights and protections for workplace delegates and obligations to be met by employers in respect to those rights.

Determining what is reasonable, or unreasonable, must be assessed in all the circumstances and objectively; this will often be finely balanced and fraught with risk.

Training and education to managers and supervisors about the new provisions and how they are to deal with workplace delegates (and unions) will be necessary to ensure compliance.

EMA Legal can assist employers as to what these changes mean and draft or review a policy and other related employment documents