Freedom of association and employee representation
Is my right to representation in the workplace guaranteed?
Yes. The right to representation is a legislative right. It applies regardless of what an agreement says. It is unlawful to take adverse action against an employee because they are, or are not, a union member.
The Government’s Public Sector Workplace Relations Policy 2020 (the Policy) supports an employee’s legislative right to be represented in the workplace. These rights are longstanding over many years and are also enshrined in the Fair Work Act 2009.
Enterprise agreements may contain clauses that recognise an employee’s right to be represented in the workplace, including by a union delegate. Such clauses may also include a confirmation that the agency and employee representatives will deal with each other in good faith.
Why are special arrangements for union delegates no longer in agreements?
The Policy requires the removal of content that provides special privileges to unions. This is to ensure that arrangements are balanced and do not favour one group of employees over another. The majority of employees are not union members.
In practice, this respects the right for an employee to belong, or not belong, to a union.
Does the removal of special privileges for union delegates mean that agencies will no longer work with unions?
No. In the interests of good workplace relations, agencies will continue to engage with the relevant unions that represent employees in their workplace.
Balanced arrangements protecting freedom of association principles promote productive relationships at work.
It is unnecessary for enterprise agreements to prescribe how union delegates will exercise their representative duties. It is not appropriate to guarantee the use of Commonwealth resources and facilities for union activities. Other inappropriate practices include guaranteeing access for unions to address new staff at induction sessions and not providing employees with the choice to opt-out of union communications.
Agencies and unions can make arrangements outside of the enterprise agreement about how they will deal with each other in the workplace, with the approval of the APS Commissioner. The requirement for Commissioner approval before entering into a side arrangement is to ensure Policy principles are upheld. It does not impact on an employee’s right to representation, or the union’s ability to effectively represent employees.