Organise a protected action ballot

Some disputes during bargaining for an enterprise agreement may escalate into industrial action. Strikes, work bans and lockouts are all examples of industrial action. 

Before employee industrial action can be protected (legal), the employees must first apply to the Commission for approval to hold a protected action ballot and the employees must vote in favour of taking the action.

A ballot can be held when:

• bargaining fails for a new enterprise agreement
• the existing agreement is out-of-date.

You can apply for a protected action ballot during bargaining for most types of enterprise agreements except greenfields agreements and cooperative workplace agreements.

An employee bargaining representative must apply using Form F34.

The form asks questions including:

• What genuine attempts have been taken to come to an agreement
• Which ballot agent do they want to use for the ballot — other than in exceptional circumstances, a ballot can only be conducted by the Australian Electoral Commission or an eligible ballot agent.

If we approve the application, we will make an order. The order will include:

• the name of each applicant for the order
• the group or groups of employees who will take part
• what questions will be on the ballot
• the date the ballot closes.

We will also direct all the bargaining representatives for the proposed agreement to attend a compulsory conciliation conference.

If you are an employee, you can vote in a protected action ballot if:

• the proposed enterprise agreement will cover you
• the people who applied for the ballot are your bargaining representatives – such as where you are a member of an employee organisation (union) that applied or where you have authorised another body or person to be your representative 
• you are part of the group of employees we included in the ballot order.

If the Australian Electoral Commission holds the protected action ballot, the Australian Government pays for it.

If the applicants for the order want to use another ballot agent, they must pay the full cost. This is the case for both complete and incomplete ballots.

Notice of protected industrial action can go ahead if:

• at least 50% of people on the voting roll took part in the ballot
• more than 50% of the votes favour the industrial action.

When the ballot agent declares the result: 

• the industrial action must start within 30 days, unless the applicant applies for an extension using Form F34A and we agree
• we must publish the ballot result.