Modern Awards varied from 1 July 2024 to include a Delegates rights clause

The Closing Loopholes Act amendments required the Fair Work Commission (FWC) to include a delegate’s rights clause to be included in all Modern Awards. At the time of writing this article, the FWC’s online copies of the Modern Awards had not been updated to include the new delegates rights clause, however the FWC had released a decision amending each of the Modern Awards from 1 July 2024.

All employers with employees who are covered by a Modern Award must now comply with the terms of the delegates rights clause. All Enterprise Agreements made after 1 July 2024 must also include a delegates right clause.

Who is impacted by the delegates rights clause?

A workplace delegate is a person who is appointed or elected to be a workplace (Union) delegate. Employers may request evidence to satisfy a reasonable person that the person has actually been appointed or elected to be a workplace delegate.

Eligible employees are employees of the Employer who are either a member of the Union the workplace delegate represents, or an employee who is eligible for membership.

What is in the delegates rights clause?

From 1 July 2024, workplace delegates may represent the industrial interests of eligible employees (who wish to be represented) in matters including:

• Consultation about major change or change in rosters or hours of work
• Resolution of disputes
• Disciplinary processes
• Enterprise bargaining
• Any other process where representation is provided for.

Workplace delegates may communicate with eligible employees to represent their industrial interests, including discussing membership with the delegate’s Union. Workplace delegates may engage in this communication during working hours, during work breaks, or before or after work.

Workplace delegates must also be provided, where possible, with reasonable access to the workplace and workplace facilities including:

• A room or area to hold discussions that is private and accessible
• A physical or electronic noticeboard
• A lockable file cabinet or other secure document storage
• Office facilities such as printers, scanners, and photocopiers
• Electronic means of communication ordinarily used by the Employer to communicate with eligible employees, and by eligible employees to communicate with each other, including access to Wi-Fi. Employers are not required to provide access to electronic communication in a way which provides individual contact details for eligible employees.

Workplace delegates must also be provided with up to 5 days of paid leave for initial training and then at least 1 day each subsequent year to attend training related to representation of the industrial interests of eligible employees. The paid training leave is limited to 1 workplace delegate for each 50 eligible employees.

Workplace delegates must exercise their rights in a manner which is consistent with their duties and obligations to the Employer, and which does not hinder, obstruct or prevent:

1. The normal performance of work; and
2. Eligible employees from exercising their right to freedom of association.

Workplace delegates must comply with reasonable policies and procedures including a Code of Conduct, WH&S policies, and ICT policies.

There are also 38 Modern Awards which already contain a workplace delegates rights clause. In those Modern Awards, an additional clause will be inserted to ensure that the more favourable terms to the workplace delegate apply.

What should employers do now?

1. Determine if any of their employees are covered by a Modern Award.  Modern Award coverage is determined by the coverage clause in each of the 155 Modern Awards. Many employers assume that they or their employees are not covered by a Modern Award, however, in our experience this assumption is often incorrect. 
2. Establish if there is a workplace delegate or delegates at the workplace. If a workplace has more than one Union, it is also likely that they will have more than one workplace delegate. Similarly, some workplaces have multiple workplace delegates from the same Union.
3. If there is Modern Award coverage and there is one or more workplace delegates, employers must comply with the new workplace delegates rights clause.

Understanding Modern Award coverage is not only important because of the new delegates rights clauses, but getting this wrong is often a cause of unintended underpayments. Employers or employees cannot opt out of Modern Award coverage. If a Modern Award applies, it is compulsory to ensure that employees are given the benefit of each and every provision of that Modern Award.

If you are not sure if your employees are covered by a Modern Award, we can assist you in determining this important issue.