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Changes to Protected Ballot Order Applications


One of the changes made by the Secure Jobs Better Pay Act 2022 is to the provisions regulating protected ballot order applications for both single and multi employer enterprise agreements which comes into effect from 6 June 2023.

When is a protected ballot order required?

  • During bargaining for enterprise agreements some disputes may escalate into industrial action such as strikes and work bans.
  • Industrial action taken by employees to advance their claims is known as employee claim action.
  • For employee claim actions to be regarded as protected it must occur during bargaining and comply with the following requirements:
    • 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.

What are the changes to protected action ballot order applications?

As mentioned above one of the requirements for the employee claim action to be protected, there must have been a protected action ballot of employees. This is done through a bargaining representative applying to the commission for a protected ballot order.

From 6 June 2023 the following changes will take effect with respect to protected ballot order applications:

  1. When the Fair Works Commission makes a protected ballot order it will also make an order directing all bargaining representatives to attend a conference before the Commission during the ballot period.
  2. The Commission will approve eligible protection ballot agents.

What is the purpose of the conference?

The purpose of the conference is to facilitate the parties reaching an agreement on some or all of the unresolved issues. During this conference the Commission will expect the parties to make a genuine attempt in reaching an agreement

The Commission Member facilitating the conference has a wide discretion and can facilitate the meeting through mediation, conciliation, making a recommendation or expressing an opinion.

Protected Action Ballot Agents

The Australian Electoral Commission has been removed as the default agent to conduct protected action ballots. The Commission will be able to approve ballot agents to conduct protected action ballots if it is 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.