Australia expands workplace delegates’ rights following FWC decision

Delegates’ rights provisions were initially introduced into the Fair Work Act (FW Act) in 2023 by the Fair Work Legislation Amendment (Closing Loopholes) Act 2023.  

The Fair Work Commission (FWC) was required to consult on, draft and insert a term that came into effect in on 1 July 2024 regarding delegates’ rights in all modern awards.

However, in 2025, three unions challenged the Commission’s decision regarding the delegates’ rights term, saying it was inconsistent with, and narrower than, the delegates’ rights in the FW Act.  

The Federal Court agreed with the unions and earlier this year the FWC issued a decision which broadened the delegates’ rights terms in all modern awards.  

Below we examine the importance of this decision and what it means for delegates’ rights in modern awards.

Why have changes been made?  

In the 2025 case Construction, Forestry and Maritime Employees Union v Australian Industry Group (39-page / 615KB PDF), the Federal Court found that the FWC had made three errors when drafting the delegates’ rights term for modern awards, namely:

• the definition of “eligible employees” was confined to members “employed by the employer” and therefore the representational clauses were limited to direct employees only; 
• communications were limited to being “for the purpose of representing” industrial interests; and 
• there were preconditions that required delegates to comply with all employee duties, as well as prohibiting them from hindering normal work, which unnecessarily limited the exercise of delegates’ rights.    

The decision set aside the delegates’ rights terms in the 10 modern awards covered by the decision. The FWC was also required to insert amended delegates’ rights terms in all modern awards in a way that remedied the errors.   

Following the decision, the FWC Full Bench issued a decision (14-page / 495 KB PDF) in January that varied all 155 modern awards to include the revised and expanded delegates' rights term.   

The changes have retrospective effect from 1 July 2024. They also have implications for all enterprise agreements made since 1 July 2024 since the broader delegates’ rights term is incorporated into those agreements. 

Enterprise-wide representation

Under the former version of the award term, delegates’ rights were limited to representing members and eligible members employed by the same employer as the delegate. This was found to be inconsistent with the FW Act and has now been amended.

Delegates are now entitled to represent all members, and persons eligible to be members, who work in an enterprise, regardless of whether they are direct employees, labour hire workers, contractors or other types of workers. 

The change is set out below:

Delegates' communication rights are broader 

Previously, the delegates’ rights term in modern awards provided that delegates could only communicate with employees for the purpose of representing their industrial interests.

The new term is much broader in scope and provides that delegates are entitled to communicate with workers in relation to their industrial interests, confirming the right is significantly wider.

This means that delegates can, for example, have conversations with workers about matters such as possible union membership, any employment matters, or health and safety, without it being in the course of formally representing the employee. 

The change in terms is set out below:

No absolute obligations on delegates

The former award term imposed absolute obligations on delegates, including a requirement not to hinder the normal performance of work. The new version of the term provides that these conditions apply only where the delegate is not reasonably exercising their rights under the clause – meaning that delegates only have to comply with employment obligations and not hinder work if they are unreasonably exercising their rights as delegates.

As outlined below, employer policies and codes of conduct will still apply to delegates, provided they are reasonable and do not operate as absolute restrictions on delegate activities.

Next steps for employers

Following the FWC’s decision, employers should:  

• review workplace policies and procedures in relation to any terms which may place conditions or restrictions on delegate activities to ensure they are reasonable;

• if engaging labour hire or contractors, ensure line and site managers are aware of the rights of delegates to represent and communicate with these workers, not just direct employees;   

• review any enterprise agreements approved on or after 1 July 2024.

If the delegates' rights term in any such agreement is less favourable than the new version of the modern award term, that term will have no effect and the more favourable award term will be automatically read into the agreement by operation of law;

If currently bargaining, employers should also ensure that the proposed delegates' rights clause at least meets the new version of the modern award term. It may also be necessary to provide undertakings to the FWC about the modern award term applying, if requested, during the approval process.