New rights for union delegates with surprising origins and effects

Jul 3, 2024
Multiethnic group of all industry workers standing together, fair work employment concept Image: iStock/elenabs

On 1 July, an important change in the industrial relations landscape came into force. Industrial awards (‘modern awards’, as they’re now called), that set minimum standards in workplaces, will include guarantees of rights for workplace union delegates. All new enterprise agreements must also include such provisions.

This is a result of the first part of the Closing Loopholes Act. Part 1 passed the Parliament in December last year.

A workplace delegate is a worker chosen to represent workers who are union members in dealings with management. Delegates are volunteers who perform their union duties on an unpaid basis in addition to their normal job at work. They spend their time undertaking vital tasks for workplace representation. They provide a ‘voice’ for members.

What was surprising is that this major change was passed by the Senate, almost without amendment or debate, when the Closing Loopholes Bill was split in two by the Senate. Other contentious provisions, on matters like casual employment, the right to disconnect and regulating gig work, had to wait until 2024 and were subjected to detailed negotiation.

What wasn’t surprising is that the delegates’ rights provisions were then criticised by employer bodies. They pushed back hard (with only limited success) when the Fair Work Commission (FWC) came to work out how to translate legislative intent into awards. However, the legislative horse had already bolted.

Employer bodies oppose the idea of delegates’ right because some employers oppose any union activity.

Some employers have actively placed barriers in the way of volunteer union delegates and paid officials. They claim that giving them more rights will hamper productivity and cause work stoppages. One study in the early 2000s found that 23% of delegates found management hostile, while 22% of delegates reported that management opposition to their role as a delegate had become more intense over the previous two years.

Documented examples of employer hostility include reducing or removing union access to company resources or facilities, refusing to negotiate, intercepting mail and even creating ‘black lists’. This hostility can put a lot of pressure onto people who, in the end, are only volunteers.

That’s why establishing a regime of workplace delegates’ rights was seen as important by unions and the Labor government.It could overcome some, but not all, of the barriers facing workplace delegates in performing their duties. Some of the more serious barriers had earlier been addressed in the Fair Work Act.

The new rights framework

The new rights for delegates operate at several levels. Some rights are specified in the Fair Work Act itself.  It says that a workplace delegate is entitled to represent the interests of their union’s members, and any other non-members eligible to be members who wish to be represented.

They are entitled to reasonable communication with union members and eligible non-members, and to reasonable access to the workplace and its facilities. They can communicate with employees during or outside working hours. In firms above a minimum size, delegates are also entitled to reasonable access to paid time off for union training.

The FWC has issued a model clause, for inclusion in awards, that provides the details on these rights.  Delegate rights can be further clarified, but not reduced, in enterprise agreements.

Effects on pay, cooperation and productivity

What of the employer concerns about productivity and conflict?

An extensive analysis that I have undertaken of research shows us how increased worker voice, through strengthened workplace delegates’ rights, would likely lead to increases in pay and benefits and more worker say in the procedures for redundancies.

Increased union delegates’ rights would also very likely lead to an increase in union membership — or at least, a deceleration in the decline in union membership — by raising the effectiveness of joining a union and reducing the ability of employers to hamper unionisation. However, large increases in union membership would not be expected.

Increased voice would also likely improve workplace safety. OECD research (published in its Economic Outlook) shows that consultation with employee representatives is crucial for ameliorating the impact of new technology, particularly artificial intelligence (AI), including on safety. The OECD found that ‘direct voice between workers and managers…was associated with a higher quality work environment’.

Enhancing the voice of volunteer workplace delegates, and reducing the ability of some employers to frustrate that voice, will increase the effectiveness of cooperative voice, at least over the longer term. It is thus likely, on balance, to increase cooperation.

How? Research shows that employees see that their union needs to behave cooperatively. They also expect management to do the same, to cooperate with the union to solve workplace problems.

Detailed questioning has revealed that, to workers, cooperation means management sharing power and authority with workers. Co-operation is not an artifice whereby management ‘leads’ and the union ‘cooperates’ by acquiescing. It is joint problem solving.

Employees have dual objectives: to maximise their income and to maintain the viability of their employment. If delegates are out of step with the union’s membership, either they will be voted out, or at least be unable to gain the support of the membership for collective action, or the union will lose its members.

Union delegates are ultimately a basic institution that acts to mediate cooperation at the workplace. They mobilise, and are forced to respond to, employee wishes for cooperation with (but not acquiescence to) management.

What of productivity? Evidence shows that productivity is, on average, at least as high in unionised as in non-union workplaces. A Portuguese survey found that increases in the proportion of members who were union representatives were linked to improved firm performance.

Lower worker resistance to technology, which OECD research suggests arises when employees are consulted through workplace representatives, would be expected to lead to higher labour productivity over the longer term.

Remember, employees see maintaining and improving productivity (instead of cuts in pay and conditions) as being in their interests. So, increasing employees voice through enhanced rights for workplace delegates will likely, on average, improve productivity — though much will depend on whether a culture of ‘mutual respect for worker, union, and employer rights and responsibilities’ is established.

The bottom line

The new regime of workplace delegates’ rights is likely, overall, to increase the voice of employees.

It will thereby have positive effects, over the long run, on pay and conditions, union membership, workplace cooperation, grievance resolution and productivity.  Given the sometimes relentless criticism of unions, some may be surprised by those effects.

In many unionised workplaces, delegates’ rights are already recognised.

It is in the workplaces where those rights have not been recognised that employers will most disagree with that forecast. It is thus in those where opposition to the new laws will be strongest — even if it is too late.

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