Circular 2022/09: Union representation in Commonwealth agencies

Purpose

1. The purpose of this circular is to inform agencies about the Australian Government’s policy concerning union representation and involvement in Commonwealth workplaces.

Key expectations

2. As a model employer, the Government supports strong, respectful and productive relationships between unions and employers. The facilitation of union representation can support such relationships.
3. The Government supports the important and legitimate role union delegates play in representing employees.
4. The Government expects that agencies will implement workplace arrangements that enable sustainable, high performing public sector workplaces, and encourages agencies to adopt principles that respect and facilitate the role of union workplace delegates, and other union officials.
5. The Government further expects agencies implement arrangements that ensure unions can exercise their industrial rights under the Fair Work Act 2009 (Fair Work Act) and participate in consultations and engagement that go beyond Fair Work Act requirements. This is noting agencies are not required to do anything that would be inconsistent with the law (eg privacy laws).
6. Employees are entitled to have access to their union to represent them in the workplace on employment and workplace matters. Union delegates represent their members and play an important role in supporting employee access to union officials, and providing employee views to the agency including during consultation.

Reasonable access to facilities for union delegates

7. Industrial arrangements must recognise the rights of union delegates and other union officials and outline the facilities and resources available for their use on a reasonable basis.
8. Agencies should provide union delegates with reasonable access to agency facilities for the purpose of carrying out their role as a delegate and in order for them to consult with members and other interested employees about matters affecting them in the workplace. This should include reasonable access to agency facilities for delegates to communicate with union officials.
9. Facilities may include telephone, photocopying, internet and email, meeting rooms, lunch/tea rooms and other non-customer facing areas where employees meet.
10. In accessing facilities, workplace delegates and unions are required to consider operational requirements, agency policies and guidelines, and the likely effect on the efficient operation of the agency. Accessing the workplace should not result in disruption to critical services to the community. In this context, agencies are encouraged to enter into discussions with union delegates or officials, to facilitate arrangements for access which take the specific needs of the agency and delegate or official into account.

Reasonable access to facilities for union communication with employees

11. Agencies should facilitate reasonable official union communication with employees by means including:
    1. facilitating union delegates communicating with employees by email, adopting processes appropriate to the agency and agreed with the union. Any assistance in facilitating email communications does not include an agency vetoing reasonable official union communications;
    2. allowing union delegates to post content on the agency’s intranet and distributing email alerts to employees that such content has been posted;
    3. the use of physical notice boards or other designated areas for the display of union information outside of public contact areas;
    4. the use of facilities for reasonable paid or unpaid group or individual meetings between employees and their union;
    5. the right of employees to have reasonable paid time for discussions with their delegates on workplace matters during paid working hours, subject to operational requirements; and
    6. facilitating the right to paid time to speak to new employees as part of an induction process.


12. All communications must be respectful at all times.
13. Where reasonable union communication with employees is facilitated, agencies must ensure they do not endorse, or be seen to endorse, the content of the union email or other material.

Paid time for union delegates

14. In supporting and facilitating the legitimate role of union delegates, agencies should provide union delegates with reasonable paid time during normal working hours (e.g. the time provided should not result in disruption to critical services and operational requirements):
    1. to provide information to, and seek feedback from, employees in the workplace on workplace relations matters in the agency during normal working hours;
    2. to represent the interests of members to the employer and industrial tribunals;
    3. during normal working hours to consult with other delegates and union officials in the workplace, and receive advice and assistance from union officials in the workplace; and
    4. to represent union members in the agency at relevant union forums, consultative committees or bargaining.
15. In doing so, agencies and delegates are to recognise that undertaking a union delegate role is not the primary purpose of an employee’s engagement, and must be accommodated alongside and not unreasonably impact on the performance of their regular duties. More senior delegates may require additional time and facilities.

Training for union delegates

16. To enable effective representation of employees within an agency, union delegates may require training in workplace relations matters.
17. Reasonable access to paid time training is to be facilitated including for example, training during working hours, taking into account the agency’s operational requirements.

Right of entry to be exercised in a fair and reasonable manner

18. It is the Government’s expectation that agencies and employee representatives, including unions, will work together collaboratively and professionally and that both parties will deal with each other in good faith with respect to entry into workplaces.
19. Agencies should apply the right of entry and freedom of association provisions of the Fair Work Act and, where applicable, right of entry provisions in work health safety legislation, in a fair and reasonable manner. This will ensure a balance between the rights of unions to represent their members in the workplace, hold discussions and investigate suspected contraventions of fair work instruments and other relevant laws, the right of employees to receive representation, and the right of occupiers of premises and employers to go about their business without undue inconvenience.
20. Subject to the agency’s operational requirements, confidentiality and privacy considerations, agencies and unions may agree to arrangements that provide more flexible access than provided for under the right of entry provisions set out in the Fair Work Act, such as access to employees in their workplace or paid time meetings.

Freedom of association

21. Agencies must comply with the freedom of association provisions set out in the Fair Work Act.

Further information and advice

22. Nothing in this circular should diminish existing arrangements around union engagement and representation.
23. Should you require any further information or assistance on this matter, please contact your APSC Relationship Manager or contact the workplacerelations@apsc.gov.au mailbox.
24. Further information on unions and associations is available on the Fair Work Commission and Fair Work Ombudsman’s website.