See Fair Work Act s.437
An application for a protected action ballot order made to the Commission must include the following documentation:
All forms are available on the Forms page of the Commission's website.
The application must specify:
A group of employees is taken to include only employees who:
The questions should describe the industrial action in such a way that employees are capable of responding to them.[2]
Ballot questions should be sufficiently clear so employees can make an informed choice. The questions should indicate what work would and would not be done and the implications for employees while at work.[3]
Bargaining representatives should frame ballot questions in a way which minimises the possibility that the industrial action eventually taken will fall outside the action authorised by the ballot.[4]
In support of reaching an enterprise agreement with your employer, do you support the taking of protected industrial action against your employer which involve one or more of the following:
Question 1 – An unlimited number of bans or limitations on answering or making telephone calls, responding to voicemails, or sending or responding to email?
Yes | No |
Question 2 – An unlimited number of bans or limitations on processing of paperwork?
Yes | No |
Question 3 – An unlimited number of indefinite bans on the working of overtime?
Yes | No |
Question 4 – An unlimited number of stoppages of work for 1 hour?
Yes | No |
Question 5 – An unlimited number of stoppages of work for 2 hours?
Yes | No |
Question 6 – An unlimited number of stoppages of work for 4 hours?
Yes | No |
Question 7 – An unlimited number of stoppages of work for 8 hours?
Yes | No |
Question 8 – An unlimited number of stoppages of work for 24 hours?
Yes | No |
Question 9 – An unlimited number of stoppages of work for seven days?
Yes | No |
If the questions are ambiguous or lack clarity there may be consequences for the bargaining representative and the employees if reliance is placed on the result of the ballot in taking industrial action. If the question or questions give rise to ambiguity, the conclusion may be reached that the industrial action specified was not authorised by the ballot and that the action is not protected.[5]
This could result in the industrial action being considered unprotected and the Commission making an order that the industrial action stop under s.418. Contravention of such an order may result in an injuction or a civil penalty being ordered by a Court.[6]
If the applicant wishes a person other than the Australian Electoral Commission (AEC) to be the protected action ballot agent for the protected action ballot, the application must specify the name of the person.
Note: The protected action ballot agent will be the AEC unless the Commission specifies another person in the protected action ballot order as the protected action ballot agent (see Fair Work Act s.443(4)).
See Fair Work Act s.438
An application for a protected action ballot must not be made earlier than 30 days before the nominal expiry date of any existing enterprise agreement which covers the employees, and must not be made before there has been a ‘notification time’ in relation to the proposed enterprise agreement. The notification time will arise where the employer has initiated bargaining or has agreed to bargain, or the Commission has issued a majority support determination, scope order or low paid authorisation.[7]
If more than one enterprise agreement covers the employees who will be covered by the proposed enterprise agreement, an application for a protected action ballot order must not be made earlier than 30 days before the latest nominal expiry date of those enterprise agreements.
If a protected action ballot is conducted before the nominal expiry date of an existing agreement, it is unlawful to organise or take industrial action pursuant to the ballot before that nominal expiry date. If industrial action is taken before the nominal expiry date, even if that action was approved by the protected action ballot, the industrial action will be unprotected.[8]
Making an application for a protected action ballot order does not constitute organising industrial action. Generally industrial action has some type of effect on the performance of work, whether in the form of work bans or strike action.
See Fair Work Act s.440
Within 24 hours after making an application for a protected action ballot order, the applicant must give a copy of the application to the employer of the employees who are to be balloted, and:
The Commission must not determine an application for a protected action ballot order unless the applicant has notified the affected employer of the application.[9]
Note: If the application seeks that the AEC is the protected action ballot agent, the copy of the application sent to the AEC should be accompanied by a completed information form that is available at www.aec.gov.au/elections/pab.
Unless the application has been lodged with the Commission by fax, email or using the Commission's electronic lodgment facilities, an application for a protected action ballot order and the accompanying draft order must be emailed to the chambers of the Commission Member named in the notice of listing issued by the Commission in the matter as soon as practicable after the applicant has received the notice of listing.[10]
Note: The approved email addresses for Commission Members' chambers are available on the Lodge an application page of the Commission's website.
Image of form that is available at www.aec.gov.au/elections/pab.
Fair Work Act 2009
s.437 – Application for a protected action ballot order
[Insert the name of each Applicant for the protected action ballot order.]
v
[Insert the name of each Respondent.]
Commission matter no:
[Insert the Commission matter number.]
COMMISSION MEMBER DATE
Proposed protected action ballot by employees of [insert name of employer]
Pursuant to s.443 of the Fair Work Act 2009 (the Act) the Fair Work Commission orders:
The [Insert name of bargaining representative] is to hold a protected action ballot of employees of [Insert name of Employer].
The ballot is to be conducted by [Insert Australian Electoral Commission or name of Protected Action Ballot Agent].
[Insert group or groups of employees to be balloted]
[Delete this clause and renumber remaining clauses if the Australian Electoral Commission is the ballot agent
or
Insert proposed ballot type (e.g. attendance ballot, postal ballot) if the Australian Electoral Commission is not the ballot agent]
[Insert date by which voting in the protected action ballot closes]
[Insert ballot questions, including the nature of the proposed industrial action]
Note: Ballot questions should be sufficiently clear so employees can make an informed choice. The questions should indicate what work would and would not be done and the implications for employees while at work.
[1] Fair Work Commission Rules r.8(2) and r.31.
[2] John Holland Pty Ltd v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) [2010] FWAFB 526 (Giudice J, Watson SDP, Blair C, 29 January 2010) at para. 19, [(2010) 194 IR 239].
[3] Total Marine Services Pty Ltd v Maritime Union of Australia [2009] FWAFB 368 (Watson VP, Hamberger SDP, Roberts C, 9 October 2009).
[4] See John Holland Pty Ltd v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) [2010] FWAFB 526 (Giudice J, Watson SDP, Blair C, 29 January 2010) at para. 16, [(2010) 194 IR 239].
[5] National Tertiary Education Industry Union v RMIT University [2013] FWCFB 9549 (Catanzariti VP, Kovacic DP, Roe C, 5 December 2013) at para. 23, [(2013) 237 IR 264]; citing John Holland Pty Ltd v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) [2010] FWAFB 526 (Giudice J, Watson SDP, Blair C, 29 January 2010) at para. 19, [(2010) 194 IR 239].
[6] Fair Work Act s.421(1).
[7] Fair Work Act s.437(2A).
[8] Fair Work Act ss.413(6), 417; Explanatory Memorandum to Fair Work Bill 2008 at para. 1763.
[9] Fair Work Act s.441(2).
[10] Fair Work Commission Rules r.31(2)