Draft term release – proposed workplace delegates’ rights terms for modern awards

We have previously alerted clients to the fact that the Fair Work Commission will be required to draft model terms for inclusion in all modern awards, by 30 June 2024.

Following consultation by the Commission with stakeholders over April 2024, a first draft of the proposed model term has now been released.  The intention is to insert this model term into all modern awards – subject to the ability of parties (with standing) to apply for award-specific variations to the term.

The term can be accessed here.

Of note:

• A workplace delegate (WD) will be required to give an employer written notice of their appointment or election as a WD;
• A WD’s rights extend to representation of eligible employees (being members and persons eligible to be members of the WD’s organisation (Union) who are employed in the enterprise);
• Rights to represent include:
  • Consultation about major workplace change;
  • Consultation about changes to rosters or hours of work;
  • Resolution of individual or collective grievances or disputes;
  • Performance management and disciplinary processes;
  • Enterprise bargaining;
  • Any process or procedure in which the employees are entitled to be represented.
• There is an entitlement to ‘reasonable communication’ with eligible employees, individually or collectively during working hours or work breaks or before the start after the end of work;
• WDs have an entitlement to reasonable access to the workplace AND workplace facilities (unless the employer doesn’t have them), including lockable filing cabinets, office facilities and equipment such as printers, and rooms or areas fit for purpose to hold discussions.
• WDs have an entitlement to reasonable access to training (unless the employer is a small business employer) and up to 5 days of paid time during normal working hours must be allowed, plus 1 day each subsequent year to attend training related to the representation of eligible employees’ industrial interests;
• There are limits to the provision of training obligation – extending to one WD per 50 eligible employees and a requirement to provide evidence of attendance within 7 days of training completion;
• The exercise of these entitlements is limited by certain conditions, for example that the WD comply with reasonable policies or procedures, not hinder, obstruct or prevent the ‘normal performance of work’, or have access to individual contact details for eligible employees.

It is to be remembered that these rights are protected by the General Protections provisions in the Act, and a breach of them will attract civil penalties.

What should employers consider?

It is likely that the model term in draft form, will follow in Modern Awards in final form.  It is imperative that employers learn and understand their obligations, and their rights with respect to the WD’s exercise of these entitlements.

Specific advice should be sought but at a minimum, policies and procedures should be reviewed to ensure that they do not contravene these new provisions, and that managers and senior leaders understand how to manage requests to access entitlements under the proposed new term.

As to policies to be complied with by WDs employers may wish to consider whether there are adequate instructions in place to cater for the exercise of the new proposed entitlements, the facilities that are available, how they will be used and how data, information and private details can be secured.