Changes to protected action ballot order applications

Some disputes during bargaining for an enterprise agreement may escalate into industrial action. Strikes, work bans and lockouts are all examples of industrial action. The majority of protected industrial action is action taken by employees to advance their claims, known as employee claim action.

For employee claim action to be protected it must occur during bargaining for certain agreements and meet other requirements in the Fair Work Act 2009 (Fair Work Act) including:

• the proposed action has been authorised by a protected action ballot of employees,
• notice of the proposed action is given to the employees’ employer(s) before the action is taken, and
• the action starts within 30 days of the declaration of results of the protected action ballot, unless this period is extended by the Commission.

In broad terms, for the proposed action to be authorised by a protected action ballot:

• a bargaining representative for the proposed agreement must apply to the Commission for a protected action ballot order,
• the Commission must approve the application, and
• at least 50% of employees represented by the bargaining representative must vote and the majority  of the valid votes must approve the proposed action.  

From 6 June 2023, some requirements relating to protected industrial action are changing due to amendments to the Fair Work Act made by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Secure Jobs Better Pay Act 2022).

There will be additional steps, including a new requirement to attend a compulsory conciliation conference convened by the Commission during the period allowed for the protected action ballot to be conducted.

We will continue to deal with applications for protected action ballot orders quickly and efficiently and there is no change to the requirement that the Commission, as far as practicable, determine applications within 2 working days. 

From 6 June 2023, the Commission’s process for dealing with protected action ballot order applications is changing. These changes affect:

• proposed single-enterprise agreements (except for greenfields agreements), and
• proposed multi-enterprise agreements that are supported bargaining agreements and single interest employer agreements (except for greenfields agreements).

These changes do not impact cooperative workplace agreements.  

If the Commission makes a protected action ballot order, it will also make an order directing all bargaining representatives for the proposed enterprise agreement to attend a conference before the Commission during the ballot period.

The purpose of the conference is to facilitate the parties reaching an agreement on some or all of the unresolved issues before any protected industrial action is taken.  

A meaningful dispute resolution process

The conference is intended to be a meaningful process. Conferences will be held in private and will be facilitated by a Commission Member. At the conference, the Commission Member can do a range of things including:

• mediating
• conciliating
• making a recommendation
• expressing an opinion.

The Commission expects parties to use the conference as an opportunity to make genuine attempts to resolve the dispute and that the bargaining representatives will apply the appropriate level of resources and commitment.

We are preparing additional resources to help support parties participate effectively (see the President’s Statement 4 April 2023).

If agreement can’t be reached at the conference, other pathways to reaching agreement will be available, including:

• our Collaborative Approaches Program (formerly known as the Cooperative Workplaces program) — taking an interest-based approach to resolving the dispute
• applying for our help to resolve a bargaining dispute — including asking us to arbitrate if the parties agrees.

All bargaining representatives must attend

All bargaining representatives for the proposed enterprise agreement must attend the conference. In the case of multi-enterprise agreements, this will include any employer and employee bargaining representatives that will be covered by the agreement that were not named in the application for a protected action ballot order.

If an employee bargaining representative doesn’t attend the conference — the employee(s) that they represent will not be able to take protected industrial action.

If any employer bargaining representatives do not attend the conference — the employer cannot take employer response action.

From 6 June 2023, the Commission will approve eligible protected action ballot agents. Eligible protected action ballot agents will be approved to conduct protected action ballots.

The Commission will be able to approve ballot agents to conduct protected action ballots if we are satisfied they are a fit and proper person and meet any other prescribed requirements. The Commission must review an approval at least every 3 years.

The Australian Electoral Commission (AEC) will also be an eligible protected action ballot agent.

There will be a new form for applying for approval as an eligible protected action ballot agent. 

We will publish details of eligible protected action ballot agents on our website after they’re approved.

From 6 June 2023, the Commission will be able to make protected action ballot orders in relation to multi-enterprise agreements, except for proposed cooperative workplace agreements and greenfields agreements. This means that protected industrial action will be available in relation to some types of multi-enterprise bargaining.

When we receive an application for a protected action ballot order in relation to a multi-enterprise agreement, we must deal with the application as if it were a separate application in relation to each named employer.

Depending on the outcome of the ballot at each employer, it may be that industrial action is protected in relation to the employees of one or some of the employers, but not all of the employers named in the protected action ballot order application.

In multi-enterprise bargaining, bargaining representatives must give at least 120 hours’ notice before commencing the industrial action.