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.
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:
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.
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]
A bargaining representative cannot apply for a protected action ballot order if the proposed enterprise agreement is:
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:
See Fair Work Act s.443
The Commission must make a protected action ballot order in relation to a proposed enterprise agreement if:
A protected action ballot order must specify the following:
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.
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:
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.
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]
See Fair Work Act s.446
If the Commission has made a protected action ballot order, and:
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:
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:
The Fair Work Regulations[7] set out procedures to be followed for notifying employees in relation to the conduct of a protected action ballot.
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:
The notice must also include:
The ballot agent may give the notice to an employee by doing any of the following:
Note: This does not prevent a ballot agent from giving notice to an employee by another means.
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.
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 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:
If the person is an industrial association or a body corporate, the Commission must be satisfied that:
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:
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 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:
[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.