Union membership

Closing Loopholes: Additional Fair Work Act changes

The Australian Government has made further workplace laws as part of its ‘Closing Loopholes’ changes.

This may affect the information on this page.

Learn more at Closing Loopholes: Additional Fair Work Act changes.

A union is a body that represents the interests of workers in a particular industry or occupation.

Membership of a union

All employees and independent contractors are free to join or not join a union. This is also known as freedom of association.

It's illegal for a person to pressure another person about their choice to join or not join a union. For example:

  • an employer can't pressure an employee
  • a business can't pressure an independent contractor working with them.

It’s also illegal to take or threaten to take adverse action against a person for:

  • being or not being a union member
  • taking part or not taking part in industrial activity, or
  • choosing to be represented, or not to be represented, by a union.

An adverse action against a person includes:

  • dismissing them
  • refusing to employ them
  • changing their role to put them in a worse position
  • changing their terms and conditions to put them in a worse position
  • discriminating between them and other employees.

Freedom of association also extends to employers. They can choose whether to join an employer association or not.

Adverse action can breach general protections laws in the Fair Work Act. Visit Protections at work for more information.

Workplace delegates

Delegates are employees who are elected or appointed as representatives of union members in their workplace.

Delegates’ rights and protections

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

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. See Protections at work for more information.

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. 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.

Delegates’ rights and award and agreement terms

From 1 July 2024, the following workplace instruments must include a term that provides for the exercise of rights of delegates:

  • awards
  • new enterprise agreements voted on after that date
  • workplace determinations made after that date.

Complying with these terms will ensure that employers provide the rights covered in the Delegates rights’ section.

During the approval process for a registered agreement, the Fair Work Commission will consider the delegates rights term in the agreement. If it would be less favourable than an award term that would otherwise apply, then the more favourable term applies.

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

Find out more: Fair Work Commission – Variation of modern awards to include a delegates’ rights term.

Source reference: Fair Work Act 2009 s.342, 346, 350 and 772

Tools and resources

Related information

Resolving general protections issues

For employees:

Contact the Fair Work Commission (the Commission) first if you've lost your job and you think you were fired because of:

You have 21 days starting from the day after you were dismissed to lodge an application with the Commission. Check the information at the Commission's website to find out if you can apply for:

  • a general protections dismissal
  • unfair dismissal (not available if you lost your job because of a genuine Redundancy)
  • unlawful termination.

For other general protections issues, consider whether the action taken against you was unlawful after reading the information on this page.

See our Fixing a workplace problem section for practical advice on:

  • talking to your employer about fixing a workplace problem
  • getting help from us if you still can’t resolve the problem.

For employers:

Take general protections issues seriously. After you’ve read the information on this page, speak with your employee to address the problem.

We have resources to help you:

Help for small business