Fair Work Commission

How to apply for a protected action ballot order

See Fair Work Act s.437

An application for a protected action ballot order made to the Commission must include the following documentation:

• a completed and signed application form [Form F34]
• a draft order in the terms sought by the applicant, and
• a statutory declaration by the applicant setting out the basis on which the Commission can be satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted [Form F34B].^[1]

Matters to be specified in application

The application must specify:

• the group or groups of employees who are to be balloted, and
• the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

Group of employees

A group of employees is taken to include only employees who:

• will be covered by the proposed enterprise agreement, and
• either:
  • are represented by a bargaining representative who is an applicant for the protected action ballot order, or
  • are bargaining representatives for themselves but are members of a union that is an applicant for the protected action ballot order.

Questions to be put to employees

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]

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]

Ballot agent

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)).

When an application may be made

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.

Notice of application

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:

• if the application specifies a person that the applicant wishes to be the protected action ballot agent – that person, or
• otherwise – the AEC.

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.

Electronic copy to be provided

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.

AEC – Protected action ballot information form

Image of form that is available at www.aec.gov.au/elections/pab.

Example of draft order

DRAFT ORDER

Fair Work Act 2009

s.437 – Application for a protected action ballot order

Applicant(s):

[Insert the name of each Applicant for the protected action ballot order.]

v

Respondent(s):

[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:

1. PROTECTED ACTION BALLOT TO BE HELD

The [Insert name of bargaining representative] is to hold a protected action ballot of employees of [Insert name of Employer].

2. NAME OF PERSON AUTHORISED TO CONDUCT THE BALLOT

The ballot is to be conducted by [Insert Australian Electoral Commission or name of Protected Action Ballot Agent].

3. GROUP OR GROUPS OF EMPLOYEES TO BE BALLOTED

[Insert group or groups of employees to be balloted]

4. TYPE OF BALLOT

[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]

5. DATE VOTING CLOSES

[Insert date by which voting in the protected action ballot closes]

6. QUESTIONS

[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.

References