Following on from changes ushered in within part one of the ‘Closing Loopholes’ legislation (ratified prior to Christmas), the Fair Work Commission has commenced the process of constructing a suitable delegates rights’ clause for inclusion in all Modern Awards from 1 July 2024, which, once operative, will entitle elected union delegates to reasonable access to paid leave for the purposes of attending related training.
The Government designed the incoming delegates’ rights provisions with the intent of ensuring that union representatives within a designated workplace were supported in their role in representing workers, including in disputes with their employer.
Changes to the Fair Work Act 2009 will provide that a workplace delegate – being “a person appointed or elected, in accordance with the rules of [a union], to be a delegate or representative (however described) for members of the organisation who work in a particular enterprise” – will be entitled to:
(a) reasonable communication with those members, and any other persons eligible to be such members, in relation to their industrial interests; and
(b) for the purpose of representing those interests:
(i) reasonable access to the workplace and workplace facilities where the enterprise is being carried on; and
(ii) unless the employer of the workplace delegate is a small business employer—reasonable access to paid time, during normal working hours, for the purposes of related training.
Once in force, employers will be able to rely on the relevant Modern Award clause (or agreement term) “as a complete statement of their obligations” and will be regarded to have afforded a workplace delegate their stated rights, if the relevant Modern Award clause has been complied with.
A new protection will be introduced to prevent employers unreasonably failing or refusing to deal with a union delegate; knowingly or recklessly making false or misleading representations to a union delegate; or unreasonably hindering, obstructing or preventing the exercise of a union delegate’s rights.
Employer groups have, unsurprisingly, expressed concern over the changes with Ai Group Chief Executive, Innes Willox, describing the measures as “unreasonable and unnecessary” and “a recipe for workplace chaos and disputation”. Of particular concern is the lack of clarity around the number of days of paid leave an eligible union delegate would be entitled to access and what rate of pay the time off would attract.
Paid time off for union delegates – funded by the employer – is not a new concept, with five days of ‘trade union training leave’ (later labelled ‘industrial relations training leave’) having been commonplace in Queensland state-system awards prior to the introduction of ‘WorkChoices’ in 2006. A small number of Modern Awards, including Building & Construction and Manufacturing, still provide this type of entitlement (up to five days per year) under the title of ‘dispute resolution training leave’.
The Commission is scheduled to commence consultations with peak bodies in the week beginning 19 February, with draft award clauses to be published for comment in early-May. Final determinations varying each award will be released by 28 June, with an operative date for award changes of 1 July 2024.
