The ballot agent for the protected action ballot ballot must determine the result of the ballot by conducting a scrutiny in accordance with Regulation 3.19.
As soon as practicable after the close of the ballot, the ballot agent must:
- admit the valid ballot papers and reject the informal ballot papers, and
- count the valid ballot papers, and
- record the number of votes:
- in favour of the question or questions, and
- against the question or questions, and
- count the informal ballot papers.
A vote is informal only if:
- for an attendance vote or a postal vote—the ballot paper does not bear:
- the initials of the ballot agent, or
- a facsimile of the ballot agent’s initials, or
- the ballot paper is marked in a way that allows the employee to be identified, or
- the ballot paper is not marked in a way that makes it clear how the employee meant to vote, or
- a direction about the ballot paper that was to be followed by an employee entitled to vote in the ballot has not been complied with.
However, a vote is not informal because the ballot paper does not bear:
- the initials of the ballot agent, or
- a facsimile of the ballot agent’s initials;
if the ballot agent is satisfied that the ballot paper is authentic.
If the protected action ballot agent is informed by a scrutineer that the scrutineer objects to a ballot paper being admitted as formal, or rejected as informal, the ballot agent must:
- decide whether the ballot paper is to be admitted as formal or rejected as informal, and
- for an attendance vote or a postal vote—endorse the decision on the ballot paper and initial the endorsement.
Error during scrutiny
If the ballot agent conducting the ballot is informed by a scrutineer to the effect that, in the scrutineer’s opinion, an error has been made in the conduct of the scrutiny, the ballot agent must:
- decide whether an error has been made, and
- if appropriate, direct what action is to be taken to correct or mitigate the error.
To preserve the secrecy of a postal vote or an electronic vote, the ballot agent must ensure that the independent advisor or a scrutineer does not have access to any evidence that may allow the ballot paper to be identified as having been completed by a particular employee.
Control of scrutiny process
If a person:
- is not entitled to be present, or to remain present, at a scrutiny, or
- interrupts the scrutiny of a ballot, except to perform a function related to counting votes;
the ballot agent conducting the ballot may direct the person to leave the place where the scrutiny is being conducted.
If any direction is given to a person by the ballot agent conducting the ballot, that person must comply with the direction.
Note: This is a civil remedy provision.
See Fair Work Regulations r.3.20
Regulation 3.20 sets out matters relating to the qualifications, appointment, powers and duties of scrutineers for a protected action ballot.
Both the employer and the applicant for a protected action ballot may appoint one or more scrutineers to perform the functions set out in this regulation.
An appointment as a scrutineer must be made by an instrument signed on behalf of the employer or applicant.
A person who has not been appointed as a scrutineer:
- is not a scrutineer, and
- is not permitted to attend the scrutiny of ballot material as a scrutineer, and
- is not permitted to perform the functions set out in regulation 3.20.
A scrutineer may be present at the scrutiny of ballot material as follows:
- if the ballot is conducted by postal voting or by electronic voting, the scrutineer may be present after the ballot agent has removed evidence of an employee’s identity, or
- if the ballot is not conducted by postal voting or by electronic voting, the scrutineer may be present when the ballot agent is ready to conduct the scrutiny of the ballot material.
- the total number of scrutineers in attendance at a particular time at the scrutiny of the ballot material must not exceed the total number of people who are:
- performing functions and duties as, or on behalf of, the ballot agent, and
- engaged on the scrutiny of the ballot material at that time; and
- if a person fails to produce the person’s instrument of appointment as a scrutineer for inspection by the ballot agent for the ballot, when requested by the ballot agent to do so, the ballot agent may refuse to allow the person to attend or act as a scrutineer.
At the scrutiny of the ballot material:
- if the scrutineer objects to a decision that a vote is formal or informal, the scrutineer may inform the ballot agent of the objection, and
- if the scrutineer considers that an error has been made in the conduct of the scrutiny, the scrutineer may inform the ballot agent of the scrutineer’s opinion.