Workplace delegates' rights fact sheet

Read our fact sheet on workplace delegates’ rights under the Fair Work Act.

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Who is this fact sheet for?

This fact sheet is for workplace delegates and their employers or regulated businesses. It explains:

  • what a workplace delegate is
  • the rights and responsibilities of workplace delegates
  • entitlements and protections for workplace delegates
  • the benefits of consultation and cooperation in the workplace
  • where to get more information and help.

What is a workplace delegate?

A workplace delegate (or delegate) is a worker who is elected or appointed to represent union members in their workplace. They may also be called a union rep.

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

What do workplace delegates do?

Workplace delegates represent the workplace interests of union members and potential members. They may represent workers in:

  • consultation about major workplace changes, rosters, or hours of work
  • resolution of disputes
  • disciplinary processes
  • enterprise bargaining, and
  • any other process or procedure where eligible employees or regulated workers are entitled to be represented and which concerns their industrial interests.

Note: Workplace interests related to work health and safety conduct are covered under relevant State or Commonwealth or Territory laws which can impact the action that employers and workplace delegates can take.

Example

Roz is a workplace delegate for her union.

Roz’s colleague Tao has approached her for advice about a workplace problem he is experiencing.

Roz provides Tao with information about his rights and entitlements and offers advice on how to resolve the issue with their employer. Roz also offers to attend a meeting between Tao and his manager as a support person.

Where do workplace delegates get their rights?

Workplace delegates may have different entitlements depending on whether they are covered by an award, agreement, are award free, or are a regulated worker.

Award free delegates

Award free workplace delegates get their entitlements from the Fair Work Act.

Award covered delegates

Award covered workplace delegates get their entitlements from the Fair Work Act and their award.

To access their entitlements, a workplace delegate that is covered by an award needs to tell their employer in writing that they are an appointed workplace delegate. They may be asked to show evidence of their appointment.

Workplace delegates covered by an agreement or workplace determination

Agreements (including enterprise agreements) and workplace determinations must include a term that provides for workplace delegates’ rights. If this term would be less favourable than the rules in the award that would otherwise apply, then the more favourable rules apply.

Regulated worker workplace delegates

Regulated worker workplace delegates get their entitlements from the Fair Work Act and a minimum standards order, if one applies.

A minimum standards order may have specific rules about how regulated worker workplace delegates can access their entitlements.

If a regulated worker workplace delegate isn’t covered by a minimum standards order, they’ll receive their entitlements from the Fair Work Act.

What are workplace delegates entitled to?

Workplace delegates are entitled to reasonable:

  • communication with union members and potential members about their workplace interests
  • access to the workplace and workplace facilities.

In some instances, employers and regulated businesses aren’t required to provide access to a workplace facility. For example, if the workplace doesn’t have physical workplace facilities or if it’s not practical to provide access due to operational requirements.

Did you know?

Delegates can communicate with union members and potential union members in different ways and at various times.

Communication may include, but is not limited to:

  • face-to-face meetings or discussions
  • posting information on noticeboards
  • using the work email system.

Communication may take place during working hours, on work breaks, or outside of work hours.

Paid time for training

Some workplace delegates are also entitled to reasonable access to paid time during normal working hours, for training related to their role as a delegate.

The entitlement to paid training time does not apply if the delegate is employed by a small business with fewer than 15 employees at the time.

Determining what’s reasonable for workplace delegates’ entitlements depends on factors including the:

  • size and nature of the enterprise or regulated business
  • resources of the employer or regulated business
  • facilities available at the enterprise or regulated business.

An employee appointed as a workplace delegate that wants to access paid training time to attend related training during normal working hours must:

  • be employed by a business with 15 or more employees at the time.

For example, if covered by an award, the delegate must:

  • give their employer at least 5 weeks notice of the training (unless a shorter period is agreed with their employer)
  • tell their employer the training topic, dates and start and finish times.

The delegate’s employer must tell the delegate at least 2 weeks before the training starts if they can access paid training time. The delegate’s employer cannot unreasonably refuse the delegate’s request.

The delegate’s employer can ask the delegate for an outline of the training content and show evidence they attended the training.

Different requirements apply to a regulated worker appointed as a workplace delegate, who may also be able to access paid training time if covered by a minimum standards order that provides for the entitlement.

Example

Jorge was elected as a delegate in his workplace. Jorge sends his employer an email to let them know he is now a delegate.

Jorge finds out that there is a training course for new delegates in 6 weeks time, that runs during work hours.

Jorge wants to go to the training, so he emails his employer to give them notice. He includes information about what the training covers, and the training dates and times.

Jorge’s employer approves his request to attend the training on paid time and asks Jorge to give them evidence of his attendance.

What responsibilities do workplace delegates have?

Workplace delegates must fulfil their duties and obligations as a worker. This includes following reasonable policies and procedures such as:

  • codes of conduct
  • workplace health and safety
  • acceptable use of information communication technology (ICT) resources.

Workplace delegates must not hold up or prevent:

  • the normal performance of work
  • workers exercising their right to freedom of association.

What protections do workplace delegates have?

There are extra protections to prevent employers and regulated businesses from taking adverse (negative) action against delegates because of their delegate role.

An employer or regulated business must not:

  • unreasonably fail or refuse to deal with a workplace delegate
  • knowingly or recklessly make a false or misleading representation to a workplace delegate
  • unreasonably hinder, obstruct or prevent a workplace delegate from exercising their rights under the Fair Work Act or a fair work instrument (such as an award, enterprise agreement or minimum standards order).

Examples of adverse action include doing, threatening or organising to terminate a workplace delegate’s employment or contract, or otherwise disadvantage a workplace delegate in relation to their work. This includes by denying them an entitlement under a workplace law, fair work instrument or contract.

Courts can impose legal penalties on employers or regulated businesses who take adverse action against a worker because of their role as a workplace delegate.

We, the Fair Work Ombudsman, can investigate allegations of adverse action. For more information see our Protections at work fact sheet.

The Fair Work Commission can deal with disputes about general protections, including workplace delegates’ rights. For more information visit the Fair Work Commission.

What are the benefits of consultation and cooperation in the workplace?

Consultation means asking for and considering workers’ views when making decisions. Cooperation means working together to find solutions.

Employers and regulated businesses have the right to make final decisions for their business. The benefits of taking a consultative and cooperative approach with workplace delegates when making decisions can include:

  • improved worker engagement and performance
  • easier change implementation because workers have been involved in the planning process
  • better business performance during change because less time is spent on responding to misunderstandings, rumours or disputes.

For more information see our Consultation and cooperation in the workplace best practice guide.

Where can I get more information and help?

For more information on: