Protected Action Ballots

Updated: 18 April 2019
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Under the provisions of the Fair Work Act 2009, a bargaining representative for an enterprise agreement may make an application to the Fair Work Commission (FWC) seeking a ballot order for the conduct of a protected action ballot.

The objective of protected action ballots is to establish a transparent process that allows employees directly concerned to choose, by means of a fair and democratic secret ballot, whether to support the taking of industrial action by organisations of employees or by employees.

The Fair Work Commission considers the application, and if an order is issued, the Commission (FWC) will determine the group(s) of employees to be balloted, the question(s) to be asked and the date by which voting is to be completed. In the ballot order, the Commission (FWC) will also appoint a protected action ballot agent.

In most instances, the Australian Electoral Commission (AEC) is appointed as the protected action ballot agent and will then perform the following tasks in conducting the ballot:

  1. The AEC will seek a list of eligible employees from both the bargaining representative and the employer (the parties). To be eligible for inclusion on the respective lists, employees must be subject to the proposed enterprise agreement. The parties will also be requested to submit a declaration, confirming that the information on the lists is complete, up-to-date and accurate. The AEC matches those employees on both lists to determine the roll of voters for the ballot (i.e. an employee must be on both lists to be included on the roll of voters).
  2. In consultation with the parties, the AEC determines the method of voting (i.e. postal or attendance) and the voting period(s) for the ballot. If voting is to be by attendance, the AEC Returning Officer will contact the employer to arrange a site visit to the workplace to determine a suitable venue for conduct of the ballot.
  3. The AEC distributes an Employee Notice to inform employees that the ballot is to occur and to provide details of the ballot timetable. In conjunction with the employer, this notice is placed in a prominent position in the workplace(s) where eligible employees are located.
  4. At the close of the voting period, the AEC will conduct a count of the ballot papers. The parties may appoint scrutineers to observe this process.
  5. The AEC then formally declares the result of the ballot and provides a copy of this declaration to the Commission (FWC) for publishing on their website and to the parties.

As noted at point 2 the AEC as the ballot agent is required to determine the method of voting and the voting period(s) for the proposed protected action ballot. To assist in this process, applicants are requested to complete the Information for a Proposed Protected Action Ballot form.

Electoral event portal

The AEC uses an electoral event portal to enable organisations to electronically submit data and documents relating to any industrial election being conducted by the AEC.

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