Changes to IR Laws Mean You Now Have to Pay for Your Staff’s Union Training

In December 2023, Australian employers witnessed a significant legislative overhaul with the enforcement of the Fair Work Legislation Amendment (Closing Loopholes) Act 2023 (Cth) (FW CL Act). This landmark legislation brought forth substantial amendments, particularly concerning the rights and protections of union delegates.  

What Is A Union Delegate? 

Historically, workplace union delegates have played a pivotal role within the labour movement, acting as the ‘go between’ between the ‘shop floor (the workforce) and union officials. Employed by the employer but largely serving the union’s interests (which, as many employers know, is not always aligned with the employer’s interests) delegates serve an invaluable role as the ‘eyes and ears’ ‘on the ground’ for the union, relaying back to the union the going’s on at the workplace, be it managerial directions to staff or discontent amongst workers. Without active and influential delegates the potential for the union to be aware and connected to that workplace is much diminished.  

The recent amendments have left the foundational concept of a union delegate intact; workplace delegates are individuals, either appointed or elected by trade unions, embedded within a business to represent, and advocate on behalf of, the other union members. 

However, the FW CL Act now introduces a nuanced definition, emphasizing a delegate’s role as a representative for organisation members “within a specific enterprise”. This clarification delineates the scope of a delegate’s entitlements to their “designated workplace”, setting the stage for the expanded rights now afforded to them. 

What Are The Expanded Rights for Union Delegates? 

Under Labor’s reforms, union delegates are now entitled to: 

  • Represent the industrial interests of union members and those eligible for membership. 
  • Communicate “reasonably” with members and potential members concerning their industrial interests. 
  • Access the workplace and its “facilities” (again “reasonably”) provided it is for the purpose of representing members’ “industrial interests” (a very broad term). 
  • For non-small businesses, access paid time during regular working hours for union training (that is, forcing businesses to now have to pay for union delegates to be upskilled by their union (skills which might, in turn, be used against that company’s interests!). 

The legislation provides that “reasonableness” (unhelpfully) of a delegate’s rights will be defined on a case-by-case basis, dependent on considering factors such as the business’s size, resources, and the available facilities. 

Three critical aspects stand out in the application of these rights: 

  • Broad Engagement: The capacity for union delegates to engage extends beyond union members, potentially encompassing all employees (. 
  • Applicable Interactions: The term “industrial interests”- about which a union delegate is entitled to represent and communicate – awaits judicial interpretation, though a broad definition is no doubt going to be taken by the courts. 
  • Training Time Limitations: The provision for paid union training time for union delegates in larger businesses may be subject to the ‘reasonableness’ test, meaning more union delegates are eligible for extra training and paid time off work for ‘union business’ owing to the extra staff and resources of the larger employer. 

What This Means For Your Organisation 

Labor’s reforms fortify protections for union delegates, making them a semi-protected species in your workplace. It a contravention for employers to: 

  • Unreasonably” (there’s that wooly term again) fail or refuse to ‘engage with’ a delegate (yet to be adequately defined). 
  • Knowingly or recklessly making a false or misleading representation to a delegate; and/or 
  • Unreasonably hinder, obstruct, or prevent a delegate from exercising their ‘rights’. 

These protections will supposedly only apply when an employee is acting in their capacity as a delegate. Therefore, the Labor Federal Government has tried to reassure businesses the protections will not apply when an employee is acting in their personal capacity (e.g. if they engage in misconduct). Of course, this line may be blurred where an issue relates to the employee personally, but they are cloaked in the protection of being a union delegate (e.g. “Yes, I swore and abused my manager, but it was because I am so fed up with their mistreatment of union members in this place”). It will be a brave employer indeed who disciplines/dismisses that worker until these new, expanded laws are adequately fleshed out.  

Supposedly, actions by an employer which falls into the above categories but the employer is required by law to take are exempt. That is, for example, an employer acting to closing a breakroom for legitimate OHS reasons (e.g. a gas leak) on the same day a union delegate was seeking to holding an important union meeting there (and is alleging the employer’s actions were designed to “hinder, obstruct, or prevent” the delegate from having the meeting). The employer ‘should’ be exempt from any liability here, but could face a resource and money-sapping court case to prove the new and expanded powers were not breached.    

This means that in your organisation you will now need to be very careful about: 

  • Refusing to ‘engage’ with delegates (such as their request to sit in on individual staff (member) discussions, or wider meetings affecting workers); 
  • How you engage with delegates (individually and regularly, separately to all staff announcements, periodically?);  
  • Excluding delegates from meetings with employees (pleading confidentiality isn’t going to cut it but what if the employee doesn’t want the union aware or involved of an issue but the union delegate insists they have a right to know and be present in any and all discussions re same?);  
  • Disciplining a union delegate for failing to meet role expectations (not completing work on time) when they are claiming they have been occupied on ‘union business’ and require dispensation (e.g. less actual ‘work’ from the employer to complete) as a result!); and 
  • Requiring delegates undertake training on their own time or outside work hours (as has been the case now for many years). 

Implications for Awards and Enterprise Agreements 

Looking ahead to 1 July 2024, the amendments mandate the inclusion of a delegates’ rights term within awards and enterprise agreements. The FW CL Act confirms these new terms must not be less favourable than the rights outlined in the legislation, meaning this will now be locked in as a minimum floor of conditions which the air Work Commission (FWC) will likely ratchet up from for certain industries (e.g. construction).  

The FWC is tasked with developing a model term, with the potential for variations across different industries, which will likely be developed within the next few weeks or months (and be ready for post-1 July 2024 variations to awards). 

The introduction of the FW CL Act marks a pivotal shift in workplace relations, seeking to re-energise and incentivise (with the employer’s money, not the union movement’s of course!) the role of union delegates in advocating for employee rights. This is notwithstanding union membership continuing to plummet and active union delegates having dropped off in number and prominence in almost all employers in most industries.  

Managers must familiarise themselves with these changes, ensuring additional care and caution is taken when discussing workplace issues with union delegates or dealing with their complaints or grizzles. You need to protect yourself and your organisation when having such discussions, particularly around the time of a safety complaint or EBA re-negotiation.  

You may also need to consider whether to resuscitate and rebuild a healthy, working relationship with the union official for your workplace, if you find you have a ‘drunk on power’ delegate who is making things difficult in your workplace (it might be easier for the official to ‘pull into line’ their rogue delegate than the manager try and do so!).  

Most importantly, you might need a good IR lawyer/experienced advisor on stanby if you experience challenges and difficulties with resurgent union delegates in your organisation.  

As the breadth and the impact of the new IR reforms become clearer, staying informed and adaptable to the inevitable changes will be key for you to successfully navigating the evolving landscape of IR impacts on your operations.


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