What are my rights if I'm being represented by a bargaining representative?

In Plain English

If you're represented by a bargaining representative during enterprise agreement negotiations, you and your employer are expected to bargain in good faith. The law protects your right to be represented, and it's illegal for your employer to take negative actions against you because you're exercising this right. You also have the right to join or not join a union.

Detailed Explanation

When you are represented by a bargaining representative, several sections of the Fair Work Act 2009 and related regulations apply to protect your rights and ensure fair bargaining processes.

  1. Good Faith Bargaining: Both you and your employer must bargain in good faith when negotiating an enterprise agreement, as mentioned in the Fair Work Information Statement.
  2. Freedom of Association and Workplace Rights: The Fair Work Information Statement also highlights that it is unlawful for your employer to take adverse action against you because you have a workplace right, including the right to freedom of association (joining or not joining a union) and the right to be free from unlawful discrimination, undue influence, and pressure.
  3. Bargaining Representatives' Role:
    • An employee organization is a bargaining representative if the employee is a member and the organization is entitled to represent the employee's industrial interests (Fair Work Act 2009 section 176(1)(b)).
    • Employees can appoint a person, including themselves, as their bargaining representative by providing written notice (Fair Work Act 2009 section 176(1)(c)).
    • The appointment of a bargaining representative comes into effect on the date specified in the appointment instrument (Fair Work Act 2009 section 178(1)).
    • A copy of the appointment instrument must be given to the employer (Fair Work Act 2009 section 178(2)(a)).
  4. Revoking Bargaining Representative: An employee can revoke the status of an employee organization as their bargaining representative by written instrument (Fair Work Act 2009 section 178A(2)). A copy of this revocation must be provided to the employer (Fair Work Act 2009 section 178A(3)(a)).
  5. Independence of Bargaining Representatives: A bargaining representative must be free from control or improper influence from the employer or another bargaining representative (Fair Work Regulations 2009 section 2.06).
  6. Disclosure of Benefits: If an employee organization stands to gain financial benefits from the enterprise agreement, these benefits must be disclosed to the employers within a specific timeframe (Fair Work Amendment (Corrupting Benefits) Act 2017 section 179).
  7. Statement of Principles on Genuine Agreement: The Fair Work Commission (FWC) must take into account the Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023 when determining whether an enterprise agreement has been genuinely agreed to by the employees. This includes ensuring employees are informed of their right to be represented and are not misled about the role of employee organizations (Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023).
  8. Protection for Workplace Delegates: The Fair Work Legislation Amendment (Closing Loopholes) Act 2023 introduces protections for workplace delegates, ensuring employers do not unreasonably fail or refuse to deal with them, make false representations, or hinder their rights (Fair Work Legislation Amendment (Closing Loopholes) Act 2023 section 350A).
  9. Removed Persons: The Fair Work (Registered Organisations) Amendment (Administration) Act 2024 restricts "removed persons" (those removed from certain positions within the Construction and General Division of the CFMEU) from acting as bargaining representatives without a certificate from the FWC (Fair Work (Registered Organisations) Amendment (Administration) Act 2024 section 177A).