See Fair Work Act s.459
Industrial action is authorised if:
If the protected action ballot includes questions or a series of questions specifying periods of industrial action of a particular duration and does not specify that consecutive periods of industrial action may be organised or engaged in, only the first period is taken as the subject of the ballot.
A previous failed protected action ballot is no impediment to seeking a fresh application.
If an applicant applies to the Commission, the initial 30 day period to commence action may be extended by 30 days if the period has not previously been extended.
See Fair Work Act s.462
A person must not do any of the following in relation to a protected action ballot:
while the vote is being made, or after the vote has been made, on the ballot paper, or
A person who is performing functions or exercising powers for the purposes of a protected action ballot must not show to another person, or permit another person to have access to, a ballot paper used in the ballot, except in the course of performing those functions or exercising those powers.
See Fair Work Act s.463
A person must not contravene:
A person must not contravene a direction given by the Commission, or a ballot agent, in relation to a protected action ballot order or a protected action ballot.
However, an order regarding these civil remedy provisions cannot be made in relation to a contravention (or alleged contravention) by the Australian Electoral Commission (the AEC).[3]
See Fair Work Act s.458
If:
the AEC must prepare a written report about the conduct of the ballot and give it to the Commission.
If:
the ballot agent or the independent advisor (as the case may be) must prepare a report about the conduct of the ballot and give it to the Commission.
If:
the Commission must, in writing, direct the ballot agent or the independent advisor (if any) for the ballot (or both) to prepare a report about the conduct of the ballot and give it to the Commission.
Conduct of a protected action ballot includes, but is not limited to, the compilation of the roll of voters for the ballot.
An irregularity, in relation to the conduct of a protected action ballot, includes, but is not limited to, an act or omission by means of which the full and free recording of votes by all employees entitled to vote in the ballot, and by no other persons is, or is attempted to be, prevented or hindered.
A report about the conduct of the ballot must be prepared in accordance with the Fair Work Regulations.
For the purpose of preparing the report, the independent advisor may:
See Fair Work Act s.464
The Commonwealth is liable for the costs incurred by the AEC in relation to the protected action ballot, whether or not the ballot is completed.
However, except as provided by regulations the Commonwealth is not liable for any costs incurred by the AEC in relation to legal challenges to matters connected with the protected action ballot.
See Fair Work Act s.465
The applicant for the protected action ballot order is liable for the costs of conducting the protected action ballot, whether or not the ballot is completed.
If the application for the protected action ballot order was made by joint applicants, each applicant is jointly and severally liable for the costs of conducting the protected action ballot, whether or not the ballot is completed.
The costs of conducting a protected action ballot are:
However, the costs of conducting a protected action ballot do not include any costs incurred by the ballot agent in relation to legal challenges to matters connected with the ballot.[6]
See Fair Work Act s.466
The Fair Work Regulations may provide for who is liable for costs incurred in relation to legal challenges to matters connected with a protected action ballot.
Regulations made for this purpose may also provide for a person who is liable for costs referred to in that subsection to be indemnified by another person for some or all of those costs.
Note: The Fair Work Regulations do not currently provide for who is liable for costs incurred in relation to legal challenges to matters connected with a protected action ballot.
See Fair Work Act s.467
A person who:
must not disclose to any other person information about an employee who is on the roll of voters for the ballot if the information will identify whether or not the employee is a member of a union.
The prohibition of disclosure provision does not apply if:
Note: Personal information given to the Commission, the AEC or an alternative ballot agent under this Division may be regulated under the Privacy Act 1988 (Cth).
Note: The President of the Commission may, in certain circumstances, disclose, or authorise the disclosure of, information acquired by the Commission or a member of the staff of the Commission, in the course of performing functions or exercising powers as the Commission.
See Fair Work Act s.468
The ballot agent for a protected action ballot must keep the following ballot material:
The ballot material must be kept for one year after the day on which the protected action ballot closed.
The ballot agent must comply with any requirements prescribed by the Fair Work Regulations relating to how the ballot material is to be kept.
Note: The Fair Work Regulations do not currently prescribe any other ballot material that must be kept by the protected action ballot agent, nor any requirements relating to how the ballot material is to be kept.
[1] Asurco Contracting Pty Ltd v Construction, Forestry, Mining and Energy Union [2010] FWA 8674 (O’Callaghan SDP, 10 November 2010); United Colleries Pty Ltd v Construction, Forestry, Mining and Energy Union (2006) FCA 904 (14 July 2006).
[2] Definition provided in Fair Work Act s.462(2).
[3] Fair Work Act s.463(3).
[4] Fair Work Regulations r.3.17.
[5] Fair Work Act s.465(4).
[6] Fair Work Act s.465(5).