Workplace delegates

Delegates are employees who are elected or appointed as representatives of union members in their workplace. Some contractors called regulated workers also have delegates rights.

On this page:

Rights and protections

Delegates have the right to represent the industrial interests of union members and potential members. This includes in disputes with their employer.

Delegates rights and protections come from the Fair Work Act. However, awards and agreements and workplace determinations may have more specific rights and protections for workplace delegates.

Delegates can be:

Under the Fair Work Act, delegates are entitled to:

  • reasonable communication with members and potential members about their industrial interests
  • reasonable access to the workplace and facilities to represent those interests
  • reasonable access to paid time (during normal working hours) for training related to their role as a delegate (unless the employer is a small business employer).

What is considered reasonable depends on factors including the:

  • size and nature of the business
  • resources of the employer
  • facilities available at the workplace.

Employers must not:

  • unreasonably fail or refuse to deal with delegates
  • knowingly or recklessly make false or misleading statements to delegates
  • unreasonably hinder, obstruct or prevent delegates from exercising their rights under the Fair Work Act or a fair work instrument.

Adverse action can’t be taken against employees because they have workplace rights, including delegates rights.

Engaging in this kind of conduct will breach the Fair Work Act. Visit Protections at work for more information.

Example: Workplace delegates’ rights

Kieran is a workplace delegate for his union.

As a delegate, Kieran wants to run a short presentation on what workers can expect once bargaining starts for their new enterprise agreement. He also wants their input on the issues that are most important to them.

Kieran schedules a 15 minute meeting during the employees’ lunch break in the mess hall on-site.

At the time of the meeting, Kieran finds that the employer has locked the mess hall. The mess hall is normally left open during lunch.

When Kieran approaches his employer, his employer says he locked the mess hall because he didn’t want Kieran talking with other colleagues about bargaining while they’re at work.

The employer’s actions are a breach of the general protections for workplace delegates and are unlawful. This is because the employer has:

  • unreasonably prevented Kieran from access to workplace facilities to represent the industrial interests of members
  • unreasonably interfered with Kieran’s right to reasonable communication with members and other workers eligible to be members in relation to their industrial interests.

The employer may also have breached an award or agreement term that provides for the exercise of workplace delegates’ rights.

Awards

Awards may have more specific rights and protections for delegates than the general rights in the Fair Work Act. This is to reflect delegates’ roles and work across different workplaces.

All awards include a term outlining the rights and responsibilities of delegates. This term expands on the existing workplace delegate rules in the Fair Work Act.

The award rules cover topics including:

Tip: Access your award

If you would prefer to read the rules in your award, access a copy from our List of awards page. Then, look for the section called ‘Award delegates’ rights clause’.

Some awards may already have entitlements for workplace delegates that are more favourable than the new workplace delegates award term. If this is the case, the more favourable entitlements will apply.

Unsure of your award? Use our free 3-step tool and select your industry and occupation to see what you’re covered by.

Notice requirements

Before a delegate can access any delegate award entitlements, they must first give their employer written notice of their appointment or election as a delegate.

An employer can request evidence that would satisfy a reasonable person of the delegate’s appointment or election.

If an employee stops acting as a delegate, they must give written notice to their employer within 14 days.

Representation

Delegates can represent the industrial interests of their members and other eligible employees if they wish to be represented. This includes in any process or procedure these employees are entitled to be represented.

Delegates can represent members and eligible employees in:

  • consultation about major workplace changes
  • consultation on rosters or hours of work changes
  • enterprise bargaining
  • disciplinary processes
  • resolving individual or collective complaints or disputes
  • any process or procedure which is covered in an award, enterprise agreement or workplace policy related to employees’ workplace rights.

Example: Representation during major workplace changes

Jamal works for a large pest control company and is covered by the Pest Control Award. He’s also a workplace delegate.

The company is planning to restructure its operations, which will affect many employees’ roles and responsibilities.

Under the rules in his award, Jamal is entitled to represent the employees during the consultation process about these major workplace changes. He organises a meeting with the affected employees to hear their concerns.

Jamal then attends the consultation meetings with management. As a delegate, Jamal represents the employees and negotiates on their behalf to ensure their views are considered in the restructure.

Communication

Delegates can communicate with employees about union membership and issues in which the delegate can represent them. For example, enterprise bargaining or major workplace changes.

Delegates can communicate with employees:

  • during working hours or breaks
  • before or after work.

Example: Communicating about union membership

Hana works for a large storage company and is covered by the Storage Services and Wholesale Award. She’s also a workplace delegate.

Under her award, Hana has the right to communicate about union membership with her colleagues.

Hana schedules a series of meetings during lunch breaks to provide information to prospective members about union membership.

Hana’s employer also must provide her with access to the company noticeboard. After he gives her access, Hana pins a poster up.

Access to workplace facilities

Employers must give delegates access to workplace facilities and the use of equipment. This can include:

  • a private room for discussions
  • noticeboards
  • secure document storage
  • equipment such as printers and photocopiers
  • access to electronic communication that the employers ordinarily uses to communicate with employees (for example, email).

An employer doesn’t have to provide access to workplace facilities when:

  • the workplace doesn’t have the facilities
  • it’s impractical to provide access to these facilities at the time they’re wanted due to operational requirements, or
  • the employer doesn’t have access to site facilities and isn’t able to get access after taking reasonable steps to do so.

Example: Accessing the workplace and facilities

David is a delegate at a retail clothing store. He and his co-workers are covered by the Retail Award.

David’s coworker, Elisha, has a dispute with her employer about her new work roster. Elisha feels the roster is unfair and will impact her caring responsibilities.

Elisha tries to resolve the issue with her manager but isn’t successful. She then asks David to help represent her in his role as workplace delegate.

David speaks to their employer and requests the use of a private meeting room to discuss Elisha’s concerns. This request is allowed under workplace delegate rules in the Retail Award.

The employer helps David book a meeting room for 30 minutes during the lunch break to conduct the discussion.

Training

Delegates are entitled to paid time off for initial and annual training where applicable (unless they work for a small business employer). This is subject to the delegate:

  • giving a minimum of 5 weeks’ notice to attend, unless a shorter period is agreed with their employer
  • providing an outline of the training content if requested
  • providing evidence of attendance within 7 days.

This includes up to 5 days of initial paid training and at least one additional day annually.

The employer must advise the delegate not less than 2 weeks from when the training is due to start whether the request has been approved. The employer must not unreasonably withhold approval.

Training during normal working hours is paid at the same rate the delegate would have been paid if they’d been rostered to work. This includes any penalty rates or loadings the employee might have otherwise received.

The number of delegates entitled to paid training is limited to one delegate per 50 eligible employees each year. This year resets every 1 July.

Training entitlements don’t apply to small businesses.

Example: Paid training for delegates

Sarah is a newly elected delegate at a medium sized vehicle repair company.

Under the workplace delegates rules in the Vehicle Award, Sarah is entitled to 5 days of paid leave to attend initial delegate training.

Sarah submits a training course outline as requested by her employer, Mark, who then approves the training.

After completing the training, Sarah provides evidence of attendance to Mark within 7 days.

Other award obligations and entitlements

To access any delegates award entitlements, a delegate must:

  • follow all their duties and obligations as an employee
  • comply with reasonable workplace policies and procedures
  • not hinder, obstruct or prevent the normal operation of the workplace or other employees’ right to freedom of association.

An employer also has important obligations to follow when dealing with workplace delegates.

Some awards may already have entitlements for workplace delegates that are more favourable than the new workplace delegates award term. In this case, the more favourable entitlements will apply. Access a copy of your award from our List of awards page and see if it includes more favourable terms for delegates.

Agreements and workplace determinations

Agreements (like enterprise agreements) and workplace determinations must include a term that provides for workplace delegates’ rights.

During the approval process for an enterprise agreement, the Fair Work Commission (the Commission) must consider the delegates rights rules in the agreement. If it would be less favourable than the rules in the award that would otherwise apply, then the more favourable rules apply. Learn more about:

The Commission is the national workplace relations tribunal and registered organisations regulator.

Regulated workers who are delegates

Regulated workers are independent contractors (contractors) who have additional rules that apply to them from 26 August 2024. They aren’t employees.

Regulated workers have the right to be a workplace delegate representing the interests of other regulated workers.

Regulated workers are engaged by regulated businesses. Regulated businesses can engage both regulated workers and employees.

Rules about delegates rights for regulated workers are generally the same as the rules for employees.

They are entitled to represent the industrial interests of regulated workers who are current or potential union members. This includes in disputes with regulated businesses.

They are also entitled to reasonable:

  • communication with regulated workers who are members or potential members in relation to their industrial interests
  • access to the workplace facilities provided by a regulated business for the purpose of representing those workers’ industrial interests.

What is considered reasonable depends on factors including the:

  • size and nature of the regulated business
  • resources of the regulated business
  • facilities provided by the regulated business.

Unlike employees, delegates who are regulated workers aren’t entitled to paid time for training.

Delegates’ rights terms may also be included in minimum standards orders. Regulated businesses must comply with these terms.

Regulated workers who are delegates are protected from adverse action taken because of their delegates rights.

Regulated businesses

Regulated businesses engage regulated workers.

As multiple businesses can be involved in a services contract, the associated regulated business is responsible for following delegates rights terms.

The associated regulated business for a regulated worker who is a delegate is a business that:

  • engaged the delegate under a services contract, or
  • arranged for, or facilitated entry into, the services contract under which the workplace delegate performs work.

Regulated businesses can’t take certain actions against a delegate who is a regulated worker and who they:

  • engaged under a services contract, or
  • arranged for, or facilitated entry into, a services contract under which the delegate performs work.

A regulated business can’t:

  • unreasonably refuse to deal with a delegate
  • knowingly or recklessly make a false or misleading representation to a delegate, or
  • unreasonably hinder, obstruct or prevent a delegate exercising their rights.

Source reference: Fair Work Act 2009 s350A-C, 149E, 273(6) and 205A.

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