The Fair Work Commission has recently amended the Fair Work Act 2009 (Cth) (the Act) concerning workplace delegate rights, effective from 1 July 2024. These amendments, particularly the modern award delegates’ rights clause (s350C), expand the scope of representation and protections available to employees through their appointed delegates. A statement from Fair Work Australia setting out the final delegates’ rights term is available here.
A workplace delegate is defined as a person, particularly a union member, appointed to be a representative for an employee.
Previously, employees were allowed a support person in managerial meetings but lacked the ability for that person to advocate on their behalf. This limited the role of delegates primarily to observation rather than active representation.
Under the revised s350C of the Act, delegates now have the authority to participate in various workplace matters on behalf of employees. This includes crucial areas such as disciplinary proceedings, consultations on major workplace changes (including redundancies), dispute resolutions, and negotiations related to enterprise agreements. This marks a significant enhancement in the role of delegates, empowering them to advocate effectively for employee interests in these critical scenarios.
Prior to exercising their rights under the Act, delegates are now required to provide written notice of their appointment to the employer.
Employers must adapt to these legislative changes by ensuring compliance with the expanded rights of workplace delegates. This includes providing reasonable access to workplaces, facilities, and necessary training for delegates.
The employer is taken to have considered the rights of a delegate if the delegates’ rights term in the enterprise agreement or modern award has been complied with. Note that modern awards required a delegates’ rights term to be included before 30 June 2024. Enterprise agreements approved before 1 July 2024 do not require an inclusion of the delegates’ rights terms, but any enterprise agreements after 1 July 2024 will require this.
Compliance with these requirements will be integral to avoiding potential disputes and maintaining legal standards under modern awards and enterprise agreements.
An important consideration raised by these amendments is whether delegates can include legal representatives. While the Act permits union members to serve as delegates and advocates in meetings with employers, the specific allowance for legal representatives in this role requires further clarification.
However, a lawyer may serve as a delegate if the meeting is conducted in the presence of a member of the Fair Work Commission. If you wish to bring an employment claim before the Fair Work Commission (the Commission), you may appoint a lawyer as a delegate to participate in a conference or hearing with the Commission after seeking permission from the Commission to notify that a lawyer is representing you.
However there are a number of circumstances where permission is not required. If in doubt, we recommend seeking advice from an experienced solicitor.
At Aitken Whyte Lawyers, we provide expertise in navigating complex workplace disputes for both employers and employees. With our extensive experience and up-to-date knowledge of regulatory changes, we are well-positioned to assist you in achieving favorable outcomes.
Our lawyers will carefully explain to you your rights and obligations in the workplace and our strategies so that you can feel safe working with us. If you are currently in a workplace dispute or concerned with your work environment, and would like our team to assist you, please call us on 07 3229 4459.
Workplace matters that Aitken Whyte Lawyers has previously dealt with and have succeeded in:
Our law firm’s goal is to ease stressful employment related processes and minimise the impact these can have on you or your business.
We are committed to providing you with the highest level of legal representation. Our lawyers will fight to protect your rights. We are focused on results, and ensuring you receive the best possible outcome.
We understand the complexities of such cases. Our experienced lawyers work diligently to navigate the legal landscape on your behalf. Engaging our law firm means putting your trust in lawyers who are result-oriented.
Employment disputes should not jeopardise your future. Our lawyers are here to help you navigate this challenging time.
Should you need help with these or any other charges, our lawyers can assist with all Employment and workplace related legal matters.
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Aitken Whyte Lawyers Brisbane
2/414 Upper Roma Street
Brisbane QLD 4000
