What employers should know about workplace delegates

Varying modern awards to include a delegates’ rights term 

Recent IR reforms provide new considerations for employers and workplace delegates. 

What happened

The Fair Work Legislation Amendment (Closing Loopholes) Act 2023 (Cth) (CL Act) received Royal Assent on 14 December 2023 and amended the Fair Work Act 2009 (Cth) (FW Act).  

The CL Act introduced significant changes:  

  • Providing specific rights for workplace delegates 
  • Requiring modern awards, enterprise agreements, and workplace determinations to include a delegates’ rights term 

These changes commenced in the FW Act on 15 December 2023. As such, employers must understand their obligations to ensure they are compliant. 

This article explores the Fair Work Commission's process to vary modern awards and include a delegates’ right term.

It also:  

  • Provides an overview of the legislative changes relating to workplace delegates’ rights; 
  • Outlines the final table for consultation and engagement tasks or events; and, 
  • Details current modern award-specific terms dealing with workplace delegates 

Overview of the CL Act changes  

Delegates’ rights term  

Section 12 of the CL Act defines a delegates’ rights term as a term in a fair work instrument (e.g. modern award, enterprise agreement, workplace determination) that provides for the exercise of the rights of workplace delegates.  

Section 149E of the CL Act says a modern award must include a delegates’ rights term for workplace delegates covered by the award. This section applies to all modern awards in operation on or after 1 July 2024 (whether or not the award was made before that day).  

Definition of workplace delegate  

Under the CL Act, a workplace delegate is a person who is appointed or elected, as per the rules of an employee organisation, to be a delegate or representative for members of the organisation who work in a particular enterprise.  

Rights of workplace delegates  

Section 350C(3) of the CL Act specifies the rights of workplace delegates. A workplace delegate is entitled to:  

  • Represent the industrial interests of members (both current and prospective) of the union or employee association, including in disputes with their employer;   
  • Reasonable communication with members (both current and prospective) of the union or employee association, in relation to their industrial interests;   
  • Reasonable access to the workplace and workplace facilities to carry out their duties as workplace delegates; and   
  • Reasonable access to paid time during normal working hours for the purposes of related training (small business employers i.e. those with 14 or fewer employees, are excluded from this obligation).  

Importantly, a delegates’ rights term must provide, at the very least, for the exercise of the rights mentioned above (as set out in section 350C(3) of the CL Act).   

Employer obligations  

Under section 350C(4) of the CL Act, employers will be taken to have afforded a workplace delegate their rights if they have complied with the delegates’ rights term in the fair work instrument that applies to the workplace delegate. 

This section will enable employers to rely on the delegates’ rights term in the relevant award or agreement as a complete statement of their obligations under section 350C(3).  

Variation of modern awards to include a delegates’ rights term  

The FWC has commenced the process to vary all modern awards so they include a delegates’ rights term for workplace delegates. This process is a requirement following the passage of the CL Act and will involve significant consultation and engagement with stakeholders.  

By 30 June 2024, the FWC must make a determination varying modern awards that are, or will be, in operation on 1 July 2024, to include a delegates’ rights term. This will come into operation and take effect from 1 July 2024. The FWC is also required to publish the varied modern awards as soon as practicable after the variation is made. 

The aim of inserting a delegates’ rights term into modern awards, enterprise agreements, and workplace determinations, is to allow these instruments to provide more detailed rights for specific industries, occupations, and enterprises.   

The matter has now been delegated to a Full Bench of the FWC.  



Task or event  

Week commencing 19 February 2024 

Consultations with peak councils  

1 March 2024  

Parties to lodge submissions and proposed workplace delegates’ rights terms including any award specific terms required 

28 March 2024 

Parties to lodge submissions in reply 

Week commencing 8 April 2024  

Consultation sessions with interested parties  

Week commencing 6 May 2024 

Draft award terms published for comment 

17 May 2024 

Comments on draft award terms due  

By 28 June 2024 

Final determinations varying modern awards published  

1 July 2024 

Determinations come into operation 


Modern award-specific terms dealing with workplace delegates  

Existing modern award terms  

There are currently 121 industry and occupational modern awards.  

Every award includes model terms that relate to:  

  • Consultation (about major workplace change and about changes to rosters or hours of work); and  
  • Dispute resolution.  

Each of the above model terms deals with employee representatives.  

Audit of existing modern award terms  

Employees of the FWC undertook an audit of all modern awards to identify additional award-specific terms that currently deal with workplace delegates, employee representatives, and unions.  

Many of the award-specific terms discovered by the audit related to an entitlement to dispute resolution training leave however, other terms were also identified. These terms were associated with facilitative provisions, rostering arrangements, payment by results andminimum rates.  

In addition to the 121 industry and occupational modern awards, there are a further 34 modern awards including the Australian Government Industry Award 2016, enterprise modern awards, and state reference public sector modern awards. Each of these 155 instruments must be varied to include a delegates’ rights term.  

This article focuses solely on the 121 industry and occupational modern awards. 

Of the 121 modern awards audited: 

  • 86 did not contain any applicable existing award terms; and  
  • 35 contained applicable existing term award terms.  

Modern awards without any applicable existing award terms 

Modern awards with applicable existing award terms 

Aboriginal and Torres Strait Islander Health Workers and Practitioners and Aboriginal Community Controlled Health Services Award 2020 

Fitness Industry Award 2020 

Pest Control Industry Award 2020  

Air Pilots Award 2020 

Aged Care Award 2010  

Funeral Industry Award 2020 

Pharmaceutical Industry Award 2020 

Aircraft Cabin Crew Award 2020  

Alpine Resorts Award 2020  

Gardening and Landscaping Services Award 2020 

Pharmacy Industry Award 2020  

Airline Operations - Ground Staff Award 2020  

Aluminium Industry Award 2020  

Gas Industry Award 2020 

Port Authorities Award 2020  

Airport Employees Award 2020  

Ambulance and Patient Transport Industry Award 2020  

General Retail Industry Award 2020 

Ports, Harbours and Enclosed Water Vessels Award 2020  

Building and Construction General On-site Award 2020  

Amusements, Events and Recreation Award 2020  

Hair and Beauty Industry Award 2020 

Poultry Processing Award 2020  

Children’s Services Award 2010 

Animal Care and Veterinary Services Award 2020  

Health Professionals and Support Services Award 2020 

Premixed Concrete Award 2020  

Cleaning Services Award 2020  

Aquaculture Industry Award 2020 

Higher Education Industry - Academic Staff - Award 2020 

Professional Diving Industry (Industrial) Award 2020  

Concrete Products Award 2020  

Architects Award 2020  

Higher Education Industry - General Staff - Award 2020 

Professional Diving Industry (Recreational) Award 2020  

Contract Call Centres Award 2020  

Asphalt Industry Award 2020  

Horse and Greyhound Training Award 2020  

Professional Employees Award 2020  

Electrical, Electronic and Communications Contracting Award 2020 

Banking, Finance and Insurance Award 2020  

Horticulture Award 2020  

Racing Clubs Events Award 2020  

Electrical Power Industry Award 2020  

Black Coal Mining Industry Award 2020  

Hydrocarbons Field Geologists Award 2020  

Racing Industry Ground Maintenance Award 2020  

Fire Fighting Industry Award 2020  

Book Industry Award 2020  

Hydrocarbons Industry (Upstream) Award 2020  

Rail Industry Award 2020 

Food, Beverage and Tobacco Manufacturing Award 2020  

Broadcasting, Recorded Entertainment and Cinemas Award 2020 

Journalists Published Media Award 2020 

Real Estate Industry Award 2020 

Graphic Arts, Printing and Publishing Award 2020  

Business Equipment Award 2020 

Labour Market Assistance Industry Award 2020 

Registered and Licensed Clubs Award 2020 

Hospitality Industry (General) Award 2020  

Car Parking Award 2020 

Legal Services Award 2020 

Restaurant Industry Award 2020  

Joinery and Building Trades Award 2020  

Cement, Lime and Quarrying Award 2020 

Live Performance Award 2020  

Road Transport (Long Distance Operations) Award 2020 

Local Government Industry Award 2020  

Cemetery Industry Award 2020 

Mannequins and Models Award 2020  

Salt Industry Award 2020  

Manufacturing and Associated Industries and Occupations Award 2020  

Clerks – Private Sector Award 2020 

Marine Tourism and Charter Vessels Award 2020  

Seagoing Industry Award 2020  

Market and Social Research Award 2020  

Coal Export Terminals Award 2020 

Marine Towage Award 2020  

Silviculture Award 2020  

Meat Industry Award 2020 

Commercial Sales Award 2020  

Maritime Offshore Oil and Gas Award 2020  

Social, Community, Home Care and Disability Services Industry Award 2020  

Mobile Crane Hiring Award 2020 

Corrections and Detention (Private Sector) Award 2020  

Medical Practitioners Award 2020 

Sporting Organisations Award 2020  

Plumbing and Fire Sprinklers Award 2020  

Cotton Ginning Award 2020  

Mining Industry Award 2020  

State Government Agencies Award 2020 

Road Transport and Distribution Award 2020 

Dredging Industry Award 2020  

Miscellaneous Award 2020 

Storage Services and Wholesale Award 2020 

Seafood Processing Award 2020  

Dry Cleaning and Laundry Industry Award 2020  

Nursery Award 2020  

Travelling Shows Award 2020  

Security Services Industry Award 2020  

Educational Services (Post-Secondary Education) Award 2020 

Nurses Award 2020  

Water Industry Award 2020  

Stevedoring Industry Award 2020  

Educational Services (Schools) General Staff Award 2020 

Oil Refining and Manufacturing Award 2020 

Wine Industry Award 2020 

Sugar Industry Award 2020 

Educational Services (Teachers) Award 2020 

Passenger Vehicle Transportation Award 2020 

Wool Storage, Sampling and Testing Award 2020 

Supported Employment Services Award 2020  

Surveying Award 2020  

Fast Food Industry Award 2020 

Pastoral Award 2020 


Telecommunications Services Award 2020  


Textile, Clothing, Footwear and Associated Industries Award 2020 


Timber Industry Award 2020  


Transport (Cash in Transit) Award 2020  


Vehicle Repair, Services and Retail Award 2020  


Waste Management Award 2020 


Enterprise agreements and workplace determinations 

Under sections 205A and 273 of the CL Act, enterprise agreements and workplace determinations made after 1 July 2024 will need to include a delegates’ rights term.  

If a proposed enterprise agreement includes a delegates’ rights term that is less favourable than the equivalent provision in a modern award (or awards) covering the workplace delegate, the enterprise agreement term will be of no effect and the modern award term will apply (as it stands at that specific point in time).  

Enterprise agreements which the FWC and employees have approved prior to 1 July 2024, do not need to include a delegates’ rights term.  

What happens next?  

As a result of these changes, there may be an increase in claims for greater workplace delegates rights both at the modern award level (i.e. on an industry or occupational basis) and in enterprise bargaining.  

Employers who breach the rights of workplace delegates may be liable under the General Protections regime of the FW Act. Consequently, employers should: 

  • Update their internal policies and procedures; and 
  • Ensure their managers receive training about the rights and protections afforded to workplace delegates. 

Business Chamber Queensland will continue to monitor the FWC’s modern award variation process development and provide support to members as decisions are reached and changes come into effect. 

Acknowledgement of Country

Business Chamber Queensland respectfully acknowledges the Traditional Owners and custodians of the lands from across Queensland and the Torres Strait. We acknowledge the Jagera and Turrbal people as the Traditional Custodians of Meanjin (Brisbane), the lands where our office is located and the place we meet, work and learn. We pay our respects to Elders past and present.