See Fair Work Act s.409
The majority of protected industrial action taken is employee claim action. The following diagram illustrates the process by which industrial action may be taken that is protected.
Applications for protected action ballot order made by bargaining representative:
Within 24 hours of making application, applicant must give copy of application to employer
Commission must, as far as praticable, determine application within 2 working days
Protected action ballot order made by Commission
Protected action ballot conducted by Australian Electoral Commission or other specified ballot agent
Vote by employees included on roll of voters
Protected action ballot agent must declare and inform about result
(Fair Work Commission must publish result on website)
If industrial action is authorised by protected action ballot...
Employees have 30 days to commence action
Written notice of at least 3 working days must be given to the employer
The Commission may extend the notice period where there are exceptional circumstances (Notice must specify the nature of the action and the day on which it will start)
Protected employee claim action taken
If industrial action is NOT authorised by protected action ballot then any industrial action taken will NOT be protected
Employee claim action is industrial action for a proposed enterprise agreement:
The industrial action must be organised or engaged in:
Note: If a union is a bargaining representative of an employee who will be covered by the proposed enterprise agreement, the reference to a bargaining representative of the employee includes a reference to an officer of the union.
What constitutes a reasonable belief depends on the circumstances of the case and the person concerned.
The Commission would expect an official of a union with extensive experience in enterprise bargaining to have a greater appreciation of the limits of the permitted matters than a novice employee bargaining representative who has been appointed by his or her colleagues to represent them in bargaining with the employer.
See Fair Work Act s.172(1)
The following matters are permitted to be included in an enterprise agreement:
See Fair Work Act s.409
The Fair Work Act sets out specific requirements which must be met before employee claim action can be taken:
 Fair Work Act s.409(7).
 Esso Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union and Ors  FWCFB 210 (Ross J, Hatcher VP, Simpson C, 10 February 2015) at para. 40; citing Australian Postal Corporation v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia – Communications Division  FWAFB 344 (Kaufman SDP, Ives DP, Lewin C, 20 January 2010) at para. 48.
 Explanatory Memorandum to Fair Work Bill 2008 at para. 1642.
 Fair Work Act s.409(3).