The process for protected action ballots

Before we can make a protected action ballot order, there are steps that we take to ensure the applications are dealt with quickly and fairly.

The steps on this page set out the usual process we follow for this type of matter. Some matters are different. We will tell you if we're going to follow a different process for your matter.

Under the Fair Work Act 2009, an application for a protected action ballot order must be dealt with by us within 2 working days as far as practicable, starting the day after lodgment.

As soon as you apply we will:

process the application within 2 days
contact you to confirm receipt of the application
if needed, contact you to request more information
ask for a response from the employer to explain their position.

The National Practice Leader for Bargaining will receive all the responses. They may determine the matter themselves or, allocate it to a different Member of the Commission who may hold a hearing to decide whether to make the protected action ballot order.

If the order is granted, the Commission Member will also issue an order directing that all bargaining representatives attend a compulsory conciliation conference during the ballot period.

1 Prepare the application

2 Submitting the application

Please email your application to lodge@fwc.gov.au.

By law, you must send a copy of your application to the Respondent (employer) and the protected ballot agent.

When sending your application to us, copy in the Respondent (employer) and the protected ballot agent. This will ensure that all parties are ‘served’, as is required by the legislation.

3 We check the application and ask for responses

We will check your application to make sure it is complete and contact you if more information is required.

We will write to the employer representative to see if they have an objection to the application. If there is an objection, we may contact you to comment on the objection.

Due to the legislative requirement that we determine the application within 2 working days where practicable, it is essential that you respond in a timely manner and by the prescribed deadline.

4 We decide the outcome

Once a response to the application and any additional information is received, the Commission Member may determine to hold a hearing to consider the application, or they may issue a protected action ballot order ‘on the papers’ (without conducting a hearing).

When deciding to issue a protected action ballot order, we must be satisfied that the employer and employees have been and are genuinely trying to reach an agreement.

5 Compulsory conciliation conference

If a protected action ballot order is made, we will also issue an order directing all bargaining representatives for the proposed agreement to attend a compulsory conciliation conference before a Member of the Commission during the ballot period.

The conference aims to help the parties to make a genuine attempt to reach agreement on some or all of the unresolved issues before any protected industrial action is taken.

6 After the protected action ballot order is made

After a protected action ballot order has been made, the ballot agent will organise for the vote to be held. Once results of the vote are declared, industrial action must begin within 30 days to be classified as protected. The employee representative must notify the employer in advance of any industrial action and comply with the terms of the order issued by us.
Industrial action taken within this time is considered protected action.

You can apply to extend the period for taking protected action.