When is industrial action authorised?

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Authorised industrial action

See Fair Work Act s.459

Industrial action is authorised if:

the industrial action was the subject of the ballot
at least 50% of employees on the roll of voters for the ballot voted in the ballot
more than 50% of the valid votes cast were votes approving the industrial action, and
the industrial action commences within the 30 day period starting on date of declaration of the results of the ballot, or if the Commission has extended that period by a further 30 days, within that period. Where a ballot authorises various types of industrial action, a particular type of industrial action must be commenced within the 30 day period, or any further 30 day period allowed by the Commission, in order for that industrial action to remain protected after the 30 day expires.^[1]

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.

Commission can extend period to commence action

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.

Case examples

Less than 50% of employees on the roll of voters voted

Australian Municipal, Administrative, Clerical and Services Union v Endeavour Energy

[2015] FWC 1190 (Harrison SDP, 27 February 2015)

Facts

A protected action ballot order authorising the balloting of employees at Endeavour Energy was issued on 12 January 2015.

On 11 February the ballot agent declared that less than 50 per cent of the employees on the roll of voters had voted in the ballot. The ballot was therefore incapable of authorising the relevant industrial action, as it did not comply with s.459(1)(b) of the Fair Work Act which requires at least 50 per cent of the employees on the roll of voters for the ballot to vote.

The union made a subsequent application in the same terms.

Outcome

The Commission was satisfied the requirements for a protected action ballot order had been met and that it had no discretion to refuse to grant an order simply because an earlier ballot was held and failed. The parties had agreed that the new protected action ballot would be conducted by postal vote.

Relevance

If the requirements under the Fair Work Act for a protected action ballot are satisfied, the application for a protected action ballot order will not be refused simply because an earlier ballot was held and failed.

Industrial action commenced within the 30-day period – consecutive forms of industrial action

Asurco Contracting Pty Ltd v Construction, Forestry, Mining and Energy Union

[2010] FWA 8674 (O'Callaghan SDP, 10 November 2010)

Facts

Asurco lodged a s.418 application seeking an order that industrial action proposed by the CFMEU to commence on 11 November 2010 stop, or not occur. On 19 July 2010 the Commission issued a protected action ballot order, the ballot result was declared on 6 August 2010, with each of the ballot questions being authorised. On 5 November 2010 the CFMEU provided notice in the following terms:

"We wish to advise that the employees of Asurco will commence protected industrial action as listed below:

A 48 hour stoppage on Thursday 11th of November 2010 and Friday 12th of November 2010 as approved in question 4 of the ballot a 48 Hour Stoppage.
A ban on working overtime on Saturday 13th August as approved in question 6 of the ballot, ban on working overtime."

The CFMEU later amended this notice to withdraw the part of the notice which referred to a ban on Saturday overtime as per Question 6 of the Protected Action Ballot. The CFMEU confirmed that the notification relating to a 48 hour stoppage on Thursday 11th November and Friday 12th of November remained in place.

Asurco asserted that this 48-hour stoppage was outside of the 30 day period specified in s.459(1)(d) and must consequently be unprotected industrial action which should be stopped pursuant to s.418(1).

Outcome

At the hearing Asurco conceded that an earlier 48-hour stoppage had occurred on 26 and 27 August 2010, within the 30-day period. However, Asurco asserted that the gap between the first 48-hour stoppage and the stoppage proposed for 11 and 12 November 2010 meant that these actions could not be regarded as consecutive actions. Further, Asurco asserted that the CFMEU notice of 5 November 2010 referred to action that 'will commence' and, as such, the proposed 48-hour stoppage must be regarded as a new or discreet form of action commencing outside of the specified 30-day period.

The Commission held that the protected action ballot authorisation relied upon in this situation authorised one or more 48-hour stoppages either separately, or consecutively, or concurrently with other authorised actions. The initiation of the 48-hour stoppage within the 30-day period specified in section 459(1)(d) means that, pursuant to section 459(2), further 48-hour stoppages outside of that initial 30-day period may be considered consecutive forms of industrial action. The Commission was also not persuaded that the use of the phrase ‘will commence industrial action’ established that the 48-hour stoppage proposed for 11 and 12 November 2010 was a new form of industrial action, unrelated to the 48-hour stoppage of August 2010.

Relevance

Because the CFMEU had given notice of the stoppage on 26 and 27 August 2010, which was within the 30-day period, and given that the protected action ballot order authorised one or more 48-hour stoppages consecutively, the industrial action had commenced within the 30-day period.

Interference with protected action ballot

See Fair Work Act s.462

A person must not do any of the following in relation to a protected action ballot:

hinder or obstruct the holding of the ballot
use any form of intimidation to prevent a person entitled to vote in the ballot from voting, or to influence the vote of such a person
threaten, offer or suggest, or use, cause or inflict, any violence, injury, punishment, damage, loss or disadvantage because of, or to induce:
- any vote or omission to vote, or
- any support of, or opposition to, voting in a particular manner;
offer an advantage (whether financial or otherwise) to a person entitled to vote in the ballot because of or to induce:
- any vote or omission to vote, or
- any support of, or opposition to, voting in a particular manner;
counsel or advise a person entitled to vote to refrain from voting
impersonate another person to obtain a ballot paper to which the first person is not entitled, or impersonate another person for the purpose of voting
do an act that results in a ballot paper or envelope being destroyed, defaced, altered, taken or otherwise interfered with
fraudulently put a paper ballot paper or other paper:
- into a repository that serves to receive or hold paper ballot papers, or
- into the post;
fraudulently deliver or send an electronic ballot paper or other document to a repository that serves to receive or hold electronic ballot papers
fraudulently deliver or send a ballot paper or other paper to a person receiving ballot papers for the purposes of the ballot
record a vote that the first person is not entitled to record
record more than one vote
forge a ballot paper or envelope, or utter^[2] a ballot paper or envelope that the first person knows to be forged
provide a ballot paper without authority
obtain or have possession of a ballot paper to which the first person is not entitled
request, require or induce another person:
- to show a ballot paper to the first person, or
- to permit the first person to see a ballot paper in such a manner that the first person can see the vote;

while the vote is being made, or after the vote has been made, on the ballot paper, or

do an act that results in a repository that serves to receive or hold ballot papers being destroyed, taken, opened or otherwise interfered with.

Note: This is a civil remedy provision.

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.

Note: This is a civil remedy provision.

Contravening a protected action ballot order

See Fair Work Act s.463

A person must not contravene:

a term of a protected action ballot order, or
a term of an order made by the Commission in relation to a protected action ballot order or a protected action ballot.

Note: This is a civil remedy provision.

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.

Note: This is a civil remedy provision.

Exclusion – Australian Electoral Commission

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]

Report about conduct of protected action ballot

See Fair Work Act s.458

Protected action ballot conducted by the AEC

If:

the ballot agent is the AEC, and
the AEC:
- receives any complaints about the conduct of the protected action ballot, or
- becomes aware of any irregularities in relation to the conduct of the ballot;

the AEC must prepare a written report about the conduct of the ballot and give it to the Commission.

Protected action ballot conducted by an alternative ballot agent

If:

the ballot agent is not the AEC, and
the ballot agent or the independent advisor (if any) for the protected action ballot:
- receives any complaints about the conduct of the ballot, or
- becomes aware of any irregularities in relation to the conduct of the ballot;

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.

Note: This is a civil remedy provision.

If:

the ballot agent is not the AEC, and
the Commission:
- receives any complaints about the conduct of the protected action ballot, or
- becomes aware of any irregularities in relation to the conduct of the ballot;

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.

Report about conduct of protected action ballot – independent advisor

For the purpose of preparing the report, the independent advisor may:

be present at the conduct of any part of a protected action ballot (including the scrutiny of the roll of voters), and
request information held by the ballot agent for the ballot, and
make a recommendation to the ballot agent for the purpose of ensuring the conduct of the protected action ballot will be fair and democratic, and
set out in his or her report:
- a description of any recommendation made, and
- whether the ballot agent complied with the recommendation.^[4]

Costs of protected action ballot conducted by the AEC

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.

Costs of protected action ballot conducted by alternative ballot agent

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:

if the ballot agent is an applicant for the protected action ballot order – the costs incurred by the applicant in relation to the ballot, or
otherwise – the amount the ballot agent charges to the applicant or applicants in relation to the ballot.^[5]

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]

Costs of legal challenges

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.

Information about employees on roll of voters not to be disclosed

See Fair Work Act s.467

A person who:

is the alternative ballot agent for a protected action ballot, or
is the independent advisor for a protected action ballot, or
acquires information from, or on behalf of, the alternative ballot agent or independent advisor in the course of performing functions or exercising powers for the purposes of the ballot;

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.

Note: This is a civil remedy provision.

Exception – disclosure

The prohibition of disclosure provision does not apply if:

the disclosure is made in the course of performing functions or exercising powers for the purposes of the protected action ballot, or
the disclosure is required or authorised by or under a law, or
the employee has consented, in writing, to the disclosure.

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.

Records

See Fair Work Act s.468

The ballot agent for a protected action ballot must keep the following ballot material:

the roll of voters for the ballot
the ballot papers, envelopes and other documents and records relating to the ballot, and
any other material prescribed by the Fair Work Regulations.

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.

References

^[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).

Updated time

Last updated

07 October 2019

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