Employees and unions need to apply for a protected action ballot (secret ballot) order issued by the Australian Industrial Relations Commission (AIRC) before they can take protected industrial action. The AIRC recently confirmed its position regarding the legislative requirements for a protected action ballot order in a decision refusing an application in The Australian Workers’ Union v Industrial Galvanizers Corporation Pty Ltd t/as Industrial Galvanizers Port Kembla [2009] AIRC 453. The AIRC’s position is likely to influence Fair Work Australia’s (FWA) consideration of protected action ballot order applications now that the new bargaining laws have commenced.

What is a protected action ballot order?

Under the Workplace Relations Act 1996 (Cth) (WR Act), once a current collective agreement has passed its nominal expiry date and after a bargaining period for a proposed collective agreement has been initiated, whoever initiated the bargaining period (an employee, group of employees or a union) can make an application to the AIRC for a protected action ballot order to be issued.

A protected action ballot is a vote by employees regarding whether the employees will take industrial action and the types of industrial action the employees will take in relation to a proposed collective agreement. A protected action ballot must be held and must be successful before any industrial action is taken by the employees. If a protected action ballot is not held or is not successful, any industrial action taken by employees will be unlawful.

The requirement to apply for and hold a protected action ballot was inserted into the WR Act by the Work Choices amendments in March 2006.

The AIRC must not issue a protected action ballot order unless it is satisfied that:

  • during the bargaining period, the applicant genuinely tried to reach agreement with the employer of the relevant employees, and
  • the applicant is genuinely trying to reach agreement with the employer, and
  • the applicant is not engaged in pattern bargaining.1
  • The WR Act requirements will generally no longer apply, as the new bargaining laws came into effect on 1 July 2009.

What will happen under the Fair Work Act 2009 (Cth)?

The WR Act requirements will continue (apart from differences in detail) under the Fair Work Act (FW Act).

From now on, a bargaining representative (an employee, their union or another representative appointed by the employee) for the negotiation of an enterprise agreement will be permitted to apply to FWA for a protected action ballot order. FWA must issue a protected action ballot order if it is satisfied that each applicant for the protected action ballot order has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted. The requirement that the applicant not be engaged in pattern bargaining has been removed.

Given that the provision still includes the requirement for genuinely trying to reach agreement, the recent AIRC decision will continue to be relevant under the FW Act.

Genuinely trying to reach agreement

In The Australian Workers’ Union v Industrial Galvanizers Corporation Pty Ltd t/as Industrial Galvanizers Port Kembla [2009] AIRC 453, the AWU had only met with the employer twice and, on the second occasion, for a short period of time, before bringing the application.

The application was made to the AIRC on the day of the existing collective agreement’s nominal expiry date, the first day possible under the WR Act. The bargaining period in relation to the proposed collective agreement had been running for 16 or 17 days.

The AIRC had little evidence regarding the attempts by the AWU to genuinely reach agreement with the employer. The employer did not wish to be heard in the application and provided no evidence.

The AWU provided the following evidence:

  • it had two meetings with the employer during the bargaining period,
  • both meetings concerned the percentage wage increase,
  • the second meeting was short and involved the employer informing the AWU that a two per cent pay rise was their offer and they
  • would not move from that, and
  • the AWU’s representative at the meeting took the employer’s response to mean that the discussions were at an end.

The AIRC found that the two meetings were insufficient to satisfy it that the AWU had genuinely tried to reach agreement with the employer during the bargaining period and was at the time of the application genuinely trying to reach agreement with the employer.

The AIRC refused the application and commented that more detailed evidence on a fresh application may succeed. This was despite the fact that the employer did not oppose the application and did not dispute the AWU’s assertion that it had been and was trying to reach agreement.

The decision is consistent with the AIRC’s previous decisions concerning what circumstances satisfy the requirement to genuinely try to reach agreement, both in the context of applications for protected action ballots and enterprise bargaining generally.

The decision reinforces that, even where an application for a protected action ballot order is unopposed and the evidence uncontested, the union or individual employee applicant must produce sufficient evidence to show that they:

  • have been genuinely trying to reach agreement with the employer during the bargaining period, and
  • were at the time of the application genuinely trying to reach agreement with the employer.

Tips for employers

Employers should be aware of the requirements an applicant must demonstrate to satisfy the AIRC or FWA that it has genuinely tried, and is genuinely trying, to reach agreement with the employer. Employers may be able to successfully defend an application for a protected action ballot (and avoid their employees taking protected industrial action) if they can demonstrate that the applicant has not genuinely tried to reach agreement.