Fair Work Commission

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.

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.

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]

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).

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.

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

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