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Industrial action benchbook

An overview of legal procedure & case law

Commission process

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Table of contents

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  • Application to be determined within 2 days after it is made
  • Dealing with multiple applications together
  • When the Commission must make an order
  • Notice period before taking action
  • Protected action ballot order may require multiple ballots to be held at the same time
  • Notification when protected action ballot order is made
  • Nominating an alternative ballot agent
  • Independent advisor
  • References

Application to be determined within 2 days after it is made

See Fair Work Act s.441

The Commission must, as far as practicable, determine an application for a protected action ballot order within two working days after the application is made.

The relevant employer generally has the right to be heard in relation to the prerequisites for the making of a protected action ballot order (specified in s.443) before the application is determined.[1]

If there is no objection to a protected action ballot order being made by the employer, the matter may be heard on the papers.

Dealing with multiple applications together

 See Fair Work Act s.442

The Commission may deal with two or more applications for a protected action ballot order at the same time if:

  • the applications relate to industrial action by:
    • employees of the same employer, or
    • employees at the same workplace, and
  • the Commission is satisfied that dealing with the applications at the same time will not unreasonably delay the determination of any of the applications.

For example, an employer may have employees represented by three different unions involved in bargaining for a proposed enterprise agreement and each union makes an application for a protected action ballot. In this situation the Commission can deal with the three applications at the same time.

Documents to accompany application

The application must be accompanied by any documents and other information prescribed by the Fair Work Regulations.

Note:  The Fair Work Regulations do not currently prescribe any documents and other information to accompany an application for a protected action ballot order.

However, the Fair Work Commission Rules specify that an application for a protected action ballot order must be accompanied by a draft order in the terms sought by the applicant.[2]

Exclusions

A bargaining representative cannot apply for a protected action ballot order if the proposed enterprise agreement is:

  • a greenfields agreement, or
  • a multi-enterprise agreement.[3]

A bargaining representative cannot apply for a protected action ballot order unless there has been a notification time in relation to the proposed enterprise agreement.[4]

The notification time for a proposed enterprise agreement is the time when:

  • the employer agrees to bargain, or initiates bargaining, for the proposed agreement
  • a majority support determination in relation to the proposed agreement comes into operation
  • a scope order in relation to the proposed agreement comes into operation, or
  • a low-paid authorisation in relation to the proposed agreement that specifies the employer comes into operation.[5]

When the Commission must make an order

See Fair Work Act s.443

Requirements

The Commission must make a protected action ballot order in relation to a proposed enterprise agreement if:

  • an application has been made, and
  • the Commission is 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.

Related information

  • Genuinely trying to reach an agreement

Content

A protected action ballot order must specify the following:

  • the name of each applicant for the order
  • the group or groups of employees who are to be balloted
  • the date by which voting in the protected action ballot closes, and
  • the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

Date

The Commission must specify a date by which voting in the protected action ballot closes that will enable the protected action ballot to be conducted as expeditiously as practicable.

Related information

  • Timetable for protected action ballot

Ballot agent

If the Commission decides that a person other than the Australian Electoral Commission (the AEC) is to be the ballot agent for the protected action ballot, the protected action ballot order must also specify:

  • the person that the Commission decides is to be the alternative ballot agent, and
  • the person (if any) that the Commission decides is to be the independent advisor for the ballot.

An independent advisor is a person who can give the alternative ballot agent advice and recommendations directed towards ensuring that the ballot will be fair and democratic.

Notice period before taking action

The minimum period of written notice required before commencing employee claim action is 3 working days.

If the Commission is satisfied that there are exceptional circumstances justifying a longer period of notice, the protected action ballot order may specify a period of up to 7 working days.[6]

Related information

  • Notice requirements

Protected action ballot order may require multiple ballots to be held at the same time

See Fair Work Act s.446

If the Commission has made a protected action ballot order, and:

  • the Commission proposes to make another protected action ballot order or orders, and
  • the orders would require a protected action ballot to be held in relation to industrial action by employees of the same employer or employees at the same workplace;

then the Commission may make, or vary, the protected action ballot orders so as to require the protected action ballots to be held at the same time if the Commission is satisfied:

  • that the level of disruption of the employer’s enterprise, or at the workplace, could be reduced if the ballots were held at the same time, and
  • that requiring the ballots to be held at the same time will not unreasonably delay either ballot.

Notification when protected action ballot order is made

 See Fair Work Act s.445

As soon as practicable after making a protected action ballot order, the Commission must give a copy of the order to:

  • each applicant for the order, and
  • the employer of the employees who are to be balloted, and
  • the ballot agent for the protected action ballot.

Notifying employees

The Fair Work Regulations[7] set out procedures to be followed for notifying employees in relation to the conduct of a protected action ballot.

Content of notice

The ballot agent for the ballot must, as soon as practicable after the Commission makes the protected action ballot order, take all reasonable steps to notify each employee who is eligible to be included on the roll of voters that the Commission has made the order.

The notice must include:

  • any matter specified by the Commission in the ballot order, and
  • the voting method or methods to be used, and
  • each location (if any) at which the ballot will be conducted, and
  • either:
    • the date or dates on which the ballot will be conducted, or
    • the period during which the ballot will be conducted; and
  • contact details for the ballot agent, and
  • contact details for the independent advisor (if any).

The notice must also include:

  • a statement that the employee may contact the ballot agent to find out whether the employee is on the roll of voters, and
  • a statement that the employee may ask the ballot agent to add or remove the employee’s name from the roll of voters, and
  • a statement that the employee may raise any concerns or complaints about the conduct of the ballot (including any alleged irregularity) with:
    • the ballot agent, or
    • if the ballot agent is not the AEC—the Commission, or
    • the independent advisor (if any).

Related information

  • Compilation of roll of voters

Manner of notification

The ballot agent may give the notice to an employee by doing any of the following:

  • giving the notice to the employee personally;
  • sending the notice by pre-paid post to:
    • the employee’s residential address, or
    • a postal address nominated by the employee;
  • sending the notice to:
    • the employee’s email address at work, or
    • another email address nominated by the employee;
  • sending to the employee’s email address at work (or to another email address nominated by the employee) an electronic link that takes the employee directly to a copy of the notice on the employer’s intranet
  • faxing the notice to:
    • the employee’s fax number at work, or
    • the employee’s fax number at home, or
    • another fax number nominated by the employee;
  • displaying the notice in a conspicuous location at the workplace that is known by and readily accessible to the employee.

Note:  This does not prevent a ballot agent from giving notice to an employee by another means.

Protected action ballot agent – access to workplace

An employer must allow the ballot agent access to the workplace for the purpose of notifying employees of the information about the protected action ballot.

Note:  This is a civil remedy provision.

An employer must allow the ballot agent access to the workplace for the purpose of preparing for, or conducting, the protected action ballot.

Note:  This is a civil remedy provision.

Nominating an alternative ballot agent

See Fair Work Act s.444

The Commission may only decide that a person other than the AEC is to be the ballot agent for a protected action ballot if:

  • the person is specified in the application for the protected action ballot order as the person the applicant wishes to be the ballot agent, and
  • the Commission is satisfied that:
    • the person is a fit and proper person to conduct the ballot, and
    • any other requirements prescribed by the Fair Work Regulations are met.

Requirements for alternative ballot agent

The Fair Work Regulations[8] set out other requirements that the Commission must be satisfied have been met before a person other than the AEC becomes the ballot agent for a protected action ballot.

The requirements are that the person must:

  • be capable of ensuring the secrecy and security of votes cast in the ballot
  • be capable of ensuring that the ballot will be fair and democratic
  • be capable of conducting the ballot expeditiously
  • have agreed to be a ballot agent
  • be bound to comply with the Privacy Act 1988 (Cth) in respect to the handling of information relating to the protected action ballot, and

If the person is an industrial association or a body corporate, the Commission must be satisfied that:

  • each individual who will carry out the functions of the ballot agent for the industrial association or body corporate is a fit and proper person to conduct the ballot, and
  • the above requirements are met for the individual.

The description ‘fit and proper person’ is not defined in the Fair Work Act and standing alone, it carries no precise meaning. Generally though, the description is used as a measure of suitability to perform or carry out a particular function, to be appointed to a particular position or to be given a particular right or privilege. However, the description will take its meaning from its context, from the activities in which the person to be assessed is or will be engaged and the ends to be served by those activities.[9]

Examples of persons the Commission has appointed as an alternative ballot agent includes:

  • a former Member of the Commission, and
  • private companies set up exclusively to conduct ballots or elections.

Independent advisor

If the Commission appoints a person other than the AEC as the ballot agent then the Commission can also appoint an independent advisor to provide the alternative ballot agent with advice and recommendations directed towards ensuring that the ballot will be fair and democratic.

If the applicant for a protected action ballot order is seeking an alternative ballot agent to conduct the vote and the employer does not agree, then the Commission may appoint an independent advisor to assist with the process.[10]

The Commission may decide that a person is to be the independent advisor for a protected action ballot if:

  • the Commission has decided that a person other than the AEC is to be the ballot agent for the ballot, and
  • the Commission considers it appropriate that there be an independent advisor for the ballot, and
  • the Commission is satisfied that:
    • the other person is sufficiently independent of each applicant for the protected action ballot order, and
    • any other requirements prescribed by the Fair Work Regulations are met.

Requirements for independent advisor

The Fair Work Regulations[11] set out other requirements that the Commission must be satisfied have been met before a person becomes the independent advisor for a protected action ballot.

The requirements are that:

  • the person must be capable of giving the ballot agent:
    • advice that is directed towards ensuring that the ballot will be fair and democratic, and
    • recommendations that are directed towards ensuring that the ballot will be fair and democratic, and
  • the person must have agreed to be the independent advisor.

References

[1] Australian Postal Corporation v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2009] FWAFB 599 (Acton SDP, Hamilton DP, Blair C, 12 October 2009).

[2] Fair Work Commission Rules r.31(1).

[3] Fair Work Act s.437(2).

[4] Fair Work Act s.437(2A).

[5] Fair Work Act ss.173(2), 437(2A).

[6] Fair Work Act s.414.

[7] Fair Work Regulations r.3.13.

[8] Fair Work Regulations r.3.11.

[9] National Tertiary Education Industry Union v Navitas Bundoora Pty Ltd T/A La Trobe Melbourne [2014] FWC 2977 (Wilson C, 12 May 2014) at para. 26; citing Re The Maritime Union of Australia [2014] FWCFB 1973 (Gostencnik DP, Wells DP, Blair C, 26 March 2014) at para. 23, [(2014) 241 IR 216].

[10] National Tertiary Education Industry Union v Navitas Bundoora Pty Ltd T/A La Trobe Melbourne [2014] FWC 2977 (Wilson C, 12 May 2014) at para. 13.

[11] Fair Work Regulations r.3.12.

Updated time

Last updated

07 October 2019

 

 

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      • Stand downs that are not jobkeeper enabling stand downs
      • Employee requests
    • Jobkeeper enabling stand down directions – entitled employers
      • Directions about duties & location of work
    • Jobkeeper enabling directions – legacy employers
      • Jobkeeper enabling stand down directions – legacy employers
      • Directions about duties & location of work – legacy employers
      • Termination of a jobkeeper enabling direction – legacy employers
    • Agreements about days or times of work
      • Agreements about days or times of work – entitled employers
      • Agreements about days or times of work – legacy employers
      • Termination of an agreement about days or times of work
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  • Modern Awards Review 2012
    • Introduction
      • Modern Awards Review 2012
  • Sir Richard Kirby Archives
    • Home
    • Sir Richard Kirby
    • About the Archives
    • Cases
      • Case
      • The Honourable Justice Henry Bournes Higgins (1851–1929)
    • Centenary
    • Exhibitions
      • Exhibition launch: The history of the Australian minimum wage
      • Guide – Opening Exhibition
      • International Industrial Dispute Resolution Conference
        • Speaker – Justice Alan Boulton AO
        • Speaker – Mr Arthur F Rosenfeld
        • Speaker – Mr Craig Smith
        • Speaker – Mr James Wilson
        • Speaker – Mr Kieran Mulvey
        • Speaker – Mr Peter Anderson
        • Speaker – Ms Ginette Brazeau
        • Speaker – Ms Nerine Kahn
        • Speaker – Ms Rita Donaghy CBE
        • Speaker – Ms Sharan Burrow
        • Speaker – Senator Guy Barnett
        • Speaker – The Hon. Julia Gillard
      • The Journey
        • Court
          • Early years
          • New court
            • Profile of Justice O'Connor
            • First registration of an industrial organisation
          • Judges & conciliators
          • The Boilermakers' Case
            • The dispute & appeals
        • Commission
          • Post Boilermakers 1956-1973
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        • Fair Work Australia
          • The Fair Work system
          • About Fair Work Australia
          • Transition
          • Fair Work timeline
      • The history of the Australian minimum wage
        • The Great Strikes
        • The first minimum wage: The Victorian minimum wage
        • The Harvester Decision
        • The impact of the Great Depression
        • Working it out: Cost of living versus capacity to pay
        • The removal of award rate discrimination
        • The wage explosion & economic crisis
        • The modern era: The development of a modern minimum wage
      • Treasures of the archives
        • Launch speech?Treasures of the Archives
        • 1. Professor Isaac
        • 2. Register of organisations
        • 3. Perlman letters
        • 4. Sir Richard Kirby photograph
        • 5. Oral history program
        • 6. AIRC sign
        • 7. Folder of wage decisions
        • 8. Centenary exhibition
        • 9. Women's exhibition poster
        • 10. Isaac letters
    • The modern era
    • Past Presidents
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      • Past Members 1956 to present
      • Past Members to 1956
  • Unfair dismissals benchbook
    • Overview of unfair dismissal
    • Glossary & naming conventions
    • Coverage for unfair dismissal
      • Who is protected from unfair dismissal?
      • People excluded from national unfair dismissal laws
        • Independent contractors
        • Labour hire workers
        • Vocational placements & volunteers
        • Public sector employment
      • Constitutional corporations
      • High income threshold
      • Modern award coverage
      • Application of an enterprise agreement
      • What is the minimum period of employment?
        • How do you calculate the minimum period of employment?
        • What is continuous service?
        • What is an excluded period?
      • Bankruptcy
      • Insolvency
    • What is dismissal?
      • When does a dismissal take effect?
      • Terminated at the employer's initiative
      • Forced resignation
      • Demotion
      • Contract for a specified period of time
      • Contract for a specified task
      • Contract for a specified season
      • Training arrangement
      • What is a transfer of employment?
      • Periods of service as a casual employee
      • What is a genuine redundancy?
        • Job no longer required due to changes in operational requirements
        • Consultation obligations
        • Redeployment
      • What is the Small Business Fair Dismissal Code?
    • What makes a dismissal unfair?
      • Valid reason relating to capacity or conduct
        • Capacity
        • Conduct
      • Notification of reason for dismissal
      • Opportunity to respond
      • Unreasonable refusal of a support person
      • Warnings – unsatisfactory performance
      • Size of employer's enterprise and human resources specialists
      • Other relevant matters
    • Making an application
      • Application fee
      • Timeframe for lodgment
      • Extension of time for lodging an application
      • Who is the employer?
      • Multiple actions
      • Discontinuing an application
    • Objecting to an application
    • Commission process
      • Conciliation
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      • Bias
    • Remedies
      • Reinstatement
        • Order for reinstatement cannot be subject to conditions
        • Order to maintain continuity
        • Order to restore lost pay
      • Compensation
        • Calculating compensation
        • Mitigation
        • Remuneration
        • Other relevant matters
        • Compensation cap
        • Instalments
    • Dismissing an application
    • Evidence
    • Costs
      • Costs against representatives
      • Security for costs
    • Appeals
      • Staying decisions
    • Role of the Court
  • Waltzing Matilda and the Sunshine Harvester Factory
    • Introduction
    • The book
      • Book launch
    • The film
      • Film launch
    • Historical material
      • 38 Hour Week Wage Principle [1983]
      • 40 Hour Week Case [1947]
      • 44 Hour Week Case [1927]
      • Apprenticeship indentures
      • Australian Minimum Wage and fitter (trades) rate since 1906
      • Boot Trades Case
      • Careers in Bootmaking and Boot Repairing
      • Cattle Industry Case 1966
      • Commercial Printing Case [1936]
      • Commonwealth Conciliation and Arbitration Act 1904
      • Cost of living newspaper articles from the early 1900s
      • Debates
      • Equal Pay Case 1969
      • Equal Pay Case 1972
      • Fruit Pickers Case
      • Gas Employees Case
      • Graph of Australian Minimum Wage since 1906
      • Harvester Case
      • Historic case judgments on the Fair Work Commission's website
      • Kingston's evidence
      • Linesmen's Case
      • Maternity Leave Case [1979]
      • Metal trades base level minimum wages [1967–2015]
      • Methods of wage adjustment
        • Establishing an Australian Minimum Wage 1907?1922
          • The origins of the Australian minimum wage
          • The 'needs' principle and 'capacity to pay'
          • Women's wages
          • First indexation decision
        • Quarterly indexation 1922–1953
        • The Great Depression 1931
        • Prosperity loadings 1937
        • World War II 1939–1945
        • The post-war period: 1953–1965 basic wage inquiries
        • The total wage 1966–1967
        • Removal of discrimination in award rates
        • Reintroduction of quarterly wage indexation 1975–1978
        • Six monthly wage indexation 1978–1981
        • Wage explosion 1981–1982
        • Reforming awards and work and management practices 1987–1991
        • Six monthly wage indexation 1983–1987
        • Enterprise bargaining and a minimum wage safety net 1991–1996
        • Statutory adjustments
        • The minimum wage in real terms
      • Mrs Beeton's cookbook
      • Paternity Leave Case [1990]
      • Personal/Carer's Leave Test Case [1995]
      • Piddington report
      • Re Bagshaw [1907]
      • Significant cases on the Fair Work Commission's website
      • Statistics for the purpose of comparison with the Australian minimum wage
      • The Amalgamated Society of Engineers v. The Adelaide Steam-ship Company Limited and Others
      • The Australian minimum wage from 1906
      • The Federated Marine Stewards and Pantrymen's Association v. The Commonwealth Steamship Owners' Association and Others
      • The Victorian minimum wage 1896
        • Legislative Council Second Reading Speech to the Factories and Shops Bill 1896
      • The first Award: 1906 Steam-ship Crew
      • 100 years of the minimum wage—Statistical comparison
    • Mrs Beeton's cookbook
    • Glossary
    • Related sites
    • Educational materials
  • AWRS First Findings report

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