Fair Work Commission delegate rules disappoint business

Union delegates will lose proposed rights to represent workers during performance reviews.

ACTU secretary Sally McManus said workplaces that properly harnessed the views of their workforce were happier and more productive. Picture: Liam Kidston

Union delegates will not have the right to represent workers during performance reviews following changes by the Fair Work Commission, but employers said minor concessions to business did not address their concerns about unions being handed increased power in the workplace.

In a majority decision, the commission on Friday handed down its union delegate clause to be inserted into awards, removing a draft proposal allowing delegates, by agreement, to attend performance management meetings with workers to their performance reviews. But delegates have retained the right to be present at disciplinary proceedings.

In an unusual outcome, the three-member full bench of the FWC split 2-1, with deputy president Melanie Binet dissenting.

The commission is yet to publish the reasons for its decision so it is unclear why Ms Binet split from the majority.

Resources employers welcomed the commission’s “minor tweaks” but said the new powers resembled a regimen of unwanted interference designed to increase sorely dwindling union membership in workplaces.

The full bench majority also spelt out the circumstances when an employer does not have to provide facilities to a delegate.

Under the clause, an employer must provide a delegate with facilities including a room or area to hold discussions with employees; a physical or electronic noticeboard; access to Wi-Fi; a lockable filing cabinet; printers, scanners and photocopiers.

The full bench decision clarified that an employer was not required to provide access to facilities if a workplace did not have them; if operational requirements made it impractical; or the employer cannot access them after taking reasonable steps.

The commission limits the number of delegates that employers are required to provide paid training leave for to one in every 50 employees. The clause also limits the number of days delegates can attend employer-funded training to five days initially, then one day a year.

Workplace Relations Minister Tony Burke said the government had “made a lot of changes to the law to get wages moving, and people need to be properly informed about those changes”.

“It’s in the interests of every workplace that there be accurate information about workplace rules,” Mr Bourke said.

“The best way to get the information to employers is through the Fair Work Ombudsman, and the best way to get the information to workers is through trained delegates. The government is doing both.”

ACTU secretary Sally McManus said workplaces that properly harnessed the views of their workforce were happier and more productive. “Good employers understand this and already invest in ensuring that workplace leaders are properly trained, respected and supported,” she said.

Australian Resources & Energy Employer Association chief executive Steve Knott said the “egregious expansion of union workplace powers would drive up costs and cut productivity, putting businesses under strain”.

“AREEA acknowledges the FWC has made minor tweaks to its earlier draft in response to business feedback (but) fundamental concerns remain,” he said.

“It beggars belief that employers will now be forced to pay for employees’ time off so unions can train them to be activists in their business. Or that delegates will have the right to disrupt co-workers during working hours to pressure them to join the union.”