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Primary content

A Bill for an Act to amend the Workplace Relations Act 1996 in relation to secret ballots for protected action, and for related purposes
For authoritative information on the progress of bills and on amendments proposed to them, please see the House of Representatives Votes and Proceedings, and the Journals of the Senate as available on the Parliament House website.
Introduced HR 26 Jun 2000

Workplace Relations Amendment (Secret Ballots for Protected Action) Bill 2000
First Reading

1998-1999-2000

The Parliament of the

Commonwealth of Australia

HOUSE OF REPRESENTATIVES

Presented and read a first time

Workplace Relations Amendment (Secret Ballots for Protected Action) Bill 2000

No. , 2000

(Employment, Workplace Relations and Small Business)

A Bill for an Act to amend the Workplace Relations Act 1996 in relation to secret ballots for protected action, and for related purposes

ISBN: 0642 438870

Contents

Part 1--Amendments 3

Workplace Relations Act 1996 3

Part 2--Application and saving 36

A Bill for an Act to amend the Workplace Relations Act 1996 in relation to secret ballots for protected action, and for related purposes

The Parliament of Australia enacts:

1 Short title This Act may be cited as the Workplace Relations Amendment (Secret Ballots for Protected Action) Act 2000.

2 Commencement (1) Subject to subsections (2) and (3), this Act commences on a day to be fixed by Proclamation.

(2) Subject to subsection (3), if this Act does not commence under subsection (1) within the period of 6 months beginning on the day on which it receives the Royal Assent, it commences on the first day after the end of that period.

(3) If:

(a) the Workplace Relations Amendment (Australian Workplace Agreements Procedures) Act 2000; or

(b) item 3 of Schedule 1 to the Workplace Relations Amendment (Termination of Employment) Act 2000;

has commenced before the day on which this Act commences under subsection (1) or (2), item 1 of Schedule 1 to this Act does not commence at all.

3 Schedule(s) Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1--Secret ballots for protected action Part 1--Amendments

Workplace Relations Act 1996

1 Subsection 4(1)

Insert:

old IR agreement means an agreement certified or approved under:

(a) section 115, as in force immediately before the commencement of the Industrial Relations Amendment Act 1992; or

(b) Division 3A of Part VI, as in force immediately before the commencement of Schedule 2 to the Industrial Relations Reform Act 1993; or

(c) Part VIB, as in force immediately before the commencement of item 1 of Schedule 9 to the Workplace Relations and Other Legislation Amendment Act 1996.

Note: If the Workplace Relations Amendment (Australian Workplace Agreements Procedures) Act 2000 or item 3 of Schedule 1 to the Workplace Relations Amendment (Termination of Employment) Act 2000 has already commenced, this item does not come into operation. See subsection 2(3).

2 At the end of section 4

Add:

(11) For the purposes of this Act, a reference to a nominal expiry date includes a reference to the end of the period of operation of an old IR agreement. The period of operation is:

(a) for a certified agreement covered by paragraph (a) of the definition of old IR agreement--the period specified in the agreement in accordance with subsection 115(2) (as in force immediately before its repeal); or

(b) for a certified agreement covered by paragraph (b) of the definition

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of old IR agreement--the period of the agreement as defined in subsection 134J(4) (as in force immediately before its repeal); or

(c) for a certified agreement covered by paragraph (c) of the definition of old IR agreement--the period of the agreement as defined in subsection 170MI(5) (as in force immediately before its repeal); or

(d) for an enterprise flexibility agreement covered by paragraph (c) of the definition of old IR agreement--the period of the agreement as defined in subsection 170NJ(5) (as in force immediately before its repeal).

3 Subsection 134(5) (paragraphs (d) and (e) of the definition of prescribed premises)

Omit "136", substitute "Division 8A of Part VIB".

4 Subsection 135(2)

Repeal the subsection, substitute:

(2) The Commission must not order a vote of members of an organisation under subsection (1) if:

(a) the organisation has initiated a bargaining period (within the meaning of section 170MI) for an agreement with a particular employer; and

(b) the members are employees of the employer whose employment will be subject to the agreement.

5 Subsection 135(2B)

Repeal the subsection.

6 Subsection 135(3)

Omit "or (2)".

7 Subsections 136(1), (2), (3), (4), (5), (6) and (7)

Repeal the subsections.

8 Paragraphs 136(8)(a) and (b)

Repeal the paragraphs, substitute:

(a) the Commission has made an order for a secret ballot under subsection 135(1); and

(b) before the vote is taken, the Commission forms the view that the secret ballot should not be proceeded with because the industrial dispute has been, or is about to be settled;

9 Subsections 136(8B), (9) and (10)

Repeal the subsections.

Note: The heading to section 136 is replaced by the heading "Revocation of order".

10 Subsection 137(1)

Omit ", (2), (2A) or (2B) or 136(2)", substitute "or (2A)".

11 Subsection 138(1)

Omit "or 136".

12 Subsection 138(2)

Repeal the subsection.

13 Subsection 138(5)

Omit "or 136".

14 Subsection 138(6)

Repeal the subsection.

15 Section 139

Omit ", (2) or (2B) or section 136,".

16 Section 140

Repeal the section.

17 After section 170MJ

Insert:

170MJA Initiating party who is employee may appoint agent (1) A person referred to in paragraph 170MI(1)(c) who wishes to:

(a) initiate a bargaining period under section 170MI; or

(b) give notice to an employer under section 170MO;

without disclosing the person's identity to the person's employer may appoint an agent to initiate the bargaining period, or give the notice, on the person's behalf.

(2) If a person has appointed an agent under subsection (1), the person's notice to the Commission under subsection 170MI(2) must be accompanied by a document containing the person's name.

(3) The regulations may make provision in relation to the qualifications and appointment of agents appointed under this section.

170MJB Identity of person who has appointed agent not to be disclosed Disclosure by Commission prohibited

(1) The Commission must not disclose information that the Commission knows, or has reasonable grounds to believe, will identify a person who has appointed an agent under section 170MJA as:

(a) a person who has initiated a bargaining period under section 170MI; or

(b) a person who has given notice to an employer under section 170MO.

(2) Each of the following is an exception to the prohibition in subsection (1):


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(a) the disclosure is required or permitted by this Act or by another Act, or by regulations made under an Act;

(b) the person whose identity is disclosed has, in writing, authorised the disclosure.

Disclosure by individual prohibited

(3) A person must not disclose protected information that the person knows, or has reasonable grounds to believe, will identify another person as a person referred to in paragraph 1(a) or (b).

Penalty: Imprisonment for 6 months.

(4) Each of the following is an exception to the prohibition in subsection (3):

(a) the disclosure is made by a person in the course of performing functions or duties:

(i) as a Registry official; or

(ii) of, or on behalf of, an authorised ballot agent;

(b) the disclosure is required or permitted by this Act or by another Act, or by regulations made under an Act;

(c) the person whose identity is disclosed has, in writing, authorised the disclosure.

(5) For the purposes of determining the burden of proof in proceedings for an offence against subsection (3), the exceptions in subsection (4) are taken to be part of the description of the offence.

(6) In this section:

protected information, in relation to a person, means information that the person acquired:

(a) in the course of performing functions or duties as a Registry official; or

(b) in the course of performing functions or duties as, or on behalf of, an authorised ballot agent; or

(c) from a person referred to in paragraph (a) or (b) who acquired the information as mentioned in paragraph (a) or (b).

Registry official means;

(a) the Industrial Registrar; or

(b) a member of the staff of the Industrial Registry (including a Deputy Industrial Registrar).

18 At the end of subsection 170ML(7)

Add "and to the provisions of Division 8A".

19 Subsections 170MO(5) and (6)

Repeal the subsections, substitute:

(5) A written notice or other notification under this section must state:

(a) the precise nature and form of the intended action; and

(b) the day, or days, on which it is intended the intended action will take place; and

(c) the duration of the intended action.

(6) A written notice or other notification under this section cannot be given:

(a) if the notification relates to action that must, in order to be protected action, be authorised by a protected action ballot under Division 8A--before the declaration of the results of the ballot (see section 170NBDC); or

(b) if the notification relates to a lockout by an employer (whether the notification is to be given by the employer, an organisation of employees or an employee)--before the start of the bargaining period.

20 Subsections 170MP(1) and (2)

Repeal the subsections, substitute:

(1) If the Commission has made an order in relation to negotiations, then engaging in industrial action by a person who is a member of an organisation of employees that is a negotiating party is not protected action unless, before the person begins to engage in the industrial action, the organisation has complied with the order so far as it applies to the organisation.

(2) If the Commission has made an order in relation to negotiations, then engaging in industrial action by an employee who is a negotiating party is not protected action unless, before the employee begins to engage in the industrial action, the employee has complied with the order in so far as it applies to him or her.

21 Section 170MQ

Repeal the section, substitute:

170MQ Industrial action must be authorised by ballot Any action taken as mentioned in subsection 170ML(2) by:

(a) an organisation of employees; or

(b) a member of such an organisation; or

(c) an officer or employee of such an organisation acting in that capacity; or

(d) an employee who is a negotiating party;

is not protected action unless:

(e) the action is in response to a lockout by the employer of employees whose employment will be subject to the proposed agreement; or

(f) the action has been authorised by a protected action ballot under

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Division 8A (see section 170NBDD).

22 After section 170MW

Insert:

170MWE Industrial action without further protected action ballot after end of suspension of bargaining period (1) This section applies if:

(a) before a bargaining period was suspended under subsection 170MW(1), industrial action was authorised by protected action ballot under Division 8A; and

(b) the ballot authorised industrial action:

(i) some or all of which had not been taken before the period of suspension began; or

(ii) that had not ended before the period of suspension began; or

(iii) beyond the period of suspension.

(2) After the period of suspension has ceased (whether because the period ended or was revoked):

(a) a relevant employee (within the meaning of Division 8A) may organise, or engage in, that industrial action without another protected action ballot; and

(b) a negotiating party that is an organisation of employees may organise, or engage in, that industrial action without another protected action ballot.

For the purposes of working out when that industrial action may be organised, or engaged in, the period of suspension (including any dates authorised by protected action ballot as dates on which action is to be taken) is to be ignored.

(3) However, that industrial action is not protected action unless, after the period of suspension, the organisation, or the employee, gives the employer at least 3 working days' written notice of the intention to take the action. The notice must state:

(a) the precise nature and form of the intended action; and

(b) the day, or days, on which it is intended that the intended action will take place; and

(c) the duration of the intended action.

(4) Nothing in this section authorises industrial action after the end of the period of suspension that is different in type or duration from the industrial action that was authorised by the protected action ballot.

Example 1: A protected action ballot authorised strike action for 20 consecutive working days from a specified date. Fourteen working days into the strike, the bargaining period was suspended for one month.

Under this section, once the period of suspension ends, the initiating party could give 3 working days' written notice, without another protected action ballot, of 6 further consecutive working days of strike action (the balance of the strike action authorised).

Example 2: A protected action ballot authorised the imposition of certain work bans every Monday, for a period of 8 consecutive weeks starting from a specified date. After 3 weeks, the bargaining period was suspended for a period of 2 weeks.

Under this section, once the period of suspension ends, the initiating party could give 3 working days' written notice, without another protected action ballot, that the work bans authorised by the ballot will be imposed for 5 further consecutive Mondays (the balance of the industrial action authorised).

23 After Division 8 of Part VIB

Insert:

Division 8A--Secret ballots on proposed protected action Subdivision A--General 170NBA Object of Division and overview of Division Object

(1) The object of this Division is to ensure that industrial action supporting or advancing claims by organisations of employees, or employees, can only be taken if the employees directly concerned have authorised the action in a fair and democratic secret ballot.

Overview of Division

(2) Under Division 8, industrial action by employees is not protected action unless it has been authorised by a secret ballot held under this Division (a protected action ballot). This Division establishes the steps that organisations of employees, or employees, who wish to organise or engage in protected action must take in order to:

(a) obtain an order from the Commission that will authorise a protected action ballot to be held; and

(b) hold a protected action ballot that may authorise the industrial action.

(3) The rule that industrial action by employees is not protected action unless it has been authorised by a protected action ballot does not apply to

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action in response to an employer lockout (see section 170MQ).

170NBAA Definitions In this Division:

applicant means an applicant for a ballot order.

applicant's agent means an agent appointed by an employee, or by a group of employees, under subsection 170NBB(4).

authorised ballot agent, in relation to a protected action ballot, means the ballot agent authorised by the Commission in the ballot order.

ballot agent means:

(a) the Australian Electoral Commission; or

(b) a person whose name appears on the register of ballot agents kept under section 170NBE.

ballot order means an order made under section 170NBCH requiring a protected action ballot to be held.

bargaining period has the meaning given in subsection 170MI(1).

joint applicant means a person who is participating, or has participated, in making a joint application under section 170NBBD.

negotiating party has the meaning given in subsection 170MI(3).

party, in relation to an application for a ballot order, means any of the following:

(a) the applicant;

(b) the employer of the relevant employees;

(c) the ballot agent nominated in the application.

prescribed number, in relation to relevant employees, means:

(a) if there are less than 80 relevant employees--4;

(b) if there are not less than 80, but not more than 5,000, relevant employees--5% of the number of such employees; or

(c) if there are more than 5,000 relevant employees--250.

proposed agreement, in respect of a bargaining period, means the proposed agreement in respect of whose negotiation the bargaining period has been initiated.

protected action ballot means a ballot under this Division.

relevant employee, in relation to proposed industrial action against an employer in respect of a proposed agreement, means:

(a) if an organisation of employees is a negotiating party to the agreement--any member of the organisation who is employed by the employer and whose employment will be subject to the agreement; and

(b) if an employee is a negotiating party to the agreement--any employee who is a negotiating party to the agreement;

but does not include an employee who is a party to an AWA whose nominal expiry date has not passed.

roll of voters means a list compiled:

(a) by the Commission under section 170NBCL; or

(b) by a ballot agent in compliance with an order of the Commission under section 170NBCL.

Subdivision B--Application for order for protected action ballot to be held 170NBB Who may apply for a ballot order etc. When application can be made

(1) A person referred to in subsection (2) may, during a bargaining period for the negotiation of a proposed agreement under Division 2 or 3 of this Part, apply to the Commission for an order for a ballot to be held to determine whether proposed industrial action has the support of relevant employees.

Note: For the duration of a bargaining period, see sections 170MK (when it begins) and 170MV (when it ends).

Who can apply

(2) The following people may apply:

(a) if the bargaining period was initiated by an organisation of employees--that organisation;

(b) if the bargaining period was initiated by an employee or employees--any employee who is a negotiating party to the proposed agreement, or a group of such employees acting jointly.

Note: For joint applications, see section 170NBBD.

Employee applications need support of prescribed number of employees

(3) An employee, or a group of such employees acting jointly, cannot make an application unless the application has the support of at least the prescribed number of relevant employees.

Note: Prescribed number is defined in section 170NBAA.

Employee applicants can appoint agent

(4) A person or persons referred to in paragraph (2)(b) who wish to make an application under this section without disclosing their identities to their employer may appoint an agent to represent them for all purposes connected with

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the application.

170NBBA Contents of application The application must include details of the following:

(a) the bargaining period to which the proposed ballot relates;

(b) the types of employees who are to be balloted;

(c) the name of:

(i) if the applicant is an organisation of employees--the organisation; or

(ii) if the applicant is an employee, or a group of employees, represented by an applicant's agent--the applicant's agent; or

(iii) if the applicant is an employee, or a group of employees, not represented by an agent--the employee or each of those employees;

(d) the timetable proposed by the applicant for the ballot;

(e) the name of the ballot agent who is nominated by the applicant to conduct the ballot;

(f) the voting method proposed by the applicant for the ballot;

(g) the question or questions to be put to the relevant employees in the ballot, including:

(i) the precise nature and form of the proposed industrial action; and

(ii) the day, or days, on which it is proposed the proposed action will take place; and

(iii) the duration of the proposed action;

(h) the following information about the employer of the relevant employees:

(i) the employer's name, business address, telephone and facsimile numbers; and

(ii) the address of the place, or places, where relevant employees work for the employer.

170NBBB Material to accompany application (1) The application must be accompanied by:

(a) a copy of the notice given under subsection 170MI(2) to initiate the relevant bargaining period; and

(b) a copy of the particulars that accompanied that notice as required by section 170MJ; and

(c) a declaration by the applicant under subsection (4) of this section.

(2) If the applicant is an organisation of employees, the application must be accompanied by a written notice showing that the application has been duly authorised by a committee of management of the organisation or by someone authorised by such a committee to authorise the application.

(3) If the applicant is an employee, or a group of employees, represented by an applicant's agent, the application must be accompanied by a document containing the name of the employee, or each of those employees.

(4) The applicant's declaration must state that the industrial action to which the application relates is not for the purpose of supporting or advancing claims to include an objectionable provision (as defined by subsection 298Z(5)) in the proposed agreement.

(5) The declaration must be in the form prescribed by the regulations.

(6) A person must not, in a declaration under subsection (4):

(a) make a statement; and

(b) do so reckless as to whether the statement is false or misleading in a material particular.

Penalty: 20 penalty units.

170NBBC Notice of application The applicant must give a copy of the application (but not the material referred to in section 170NBBB) to each other party within 24 hours after lodging the application with the Commission.

170NBBD Joint applications (1) If the bargaining period for the proposed agreement was initiated by an employee, 2 or more employees who are negotiating parties may make a joint application for a ballot order.

(2) An employee who has participated in making a joint application may withdraw his or her name from the application before the application is determined but cannot do so after the application is determined by the Commission.

(3) If employees have made a joint application, the name of another employee who is a negotiating party may, before the application is determined, be joined to the application if the other applicants consent.

(4) The President may make rules:

(a) in the case of a provision of this Act permitting an applicant for a ballot order to do any thing--specifying how the provision is to apply to joint applicants; and

(b) in the case of a provision of this Act requiring an applicant for a ballot order to be given notice, or otherwise informed, of any thing--specifying how

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the requirement is to be fulfilled in relation to joint applicants.

(5) Rules made under this section are Rules of the Commission.

Note: Section 48 provides that Rules of the Commission are disallowable instruments and statutory rules.

Subdivision C--Determination of application and order for ballot to be held 170NBC Commission to notify parties of application (1) As soon as practicable after an application for a ballot order is lodged with the Commission, the Commission must notify the parties of the procedure to be followed by the Commission in dealing with that application.

(2) Without limiting subsection (1), the Commission must notify the parties:

(a) that they may make submissions in relation to the application; and

(b) whether submissions are to be made to the Commission orally or in writing; and

(c) of the time within which submissions must be made.

170NBCA Commission to act quickly in relation to application etc. (1) In exercising its powers under this Division, the Commission:

(a) must act as quickly as is practicable; and

(b) must, as far as is possible, determine all applications made under this Division within 4 working days of the Commission after the application is made.

(2) Paragraph 111(1)(g) does not apply to a proceeding under this Division.

Note: Paragraph 111(1)(g) allows the Commission to dismiss, refrain from further hearing etc. matters or parts of matters.

170NBCB Parties and relevant employees may make submissions and apply for directions (1) A party or a relevant employee may make submissions, and may apply for directions, relating to:

(a) an application for a ballot order; or

(b) any aspect of the conduct of a protected action ballot.

(2) In spite of subsection 170NBCA(2), the Commission may decline to consider a person's submission if the Commission is satisfied that the submission is vexatious, frivolous, misconceived or lacking in substance.

170NBCC Commission may give directions The Commission may give directions in connection with:

(a) an application for a ballot order; or

(b) any aspect of the conduct of a protected action ballot.

170NBCE Commission procedure regarding multiple applications (1) If:

(a) more than one application for a ballot order is before the Commission for determination; and

(b) the applications relate to industrial action by employees of the same employer or by employees at the same place of work;

the Commission may determine the applications at the same time.

(2) If:

(a) the Commission has made an order requiring a ballot to be held in relation to industrial action by employees of an employer, or by employees at a place of work; and

(b) the Commission proposes to make another order requiring a ballot to be held in relation to industrial action against that employer, or at the same place of work; and

(c) the Commission considers that the level of disruption of the employer's business, or at the place of work (as the case requires), could be reduced if the ballots were held at the same time;

the Commission may make, or vary, the relevant orders so as to require the ballots to be held at the same time.

170NBCF Application not to be granted unless certain conditions are met Commission must be satisfied of various matters

(1) The Commission must not grant an application for a ballot order unless it is satisfied that:

(a) if:

(i) the applicant is an organisation of employees--the organisation has initiated a bargaining period to negotiate an agreement under Division 2 or 3 with the employer of relevant employees; or

(ii) the applicant is an employee, or a group of employees--an employee, or group of employees, have initiated a bargaining period to negotiate an

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agreement under Division 2 or 3 with the employer of relevant employees; and

(b) the bargaining period has begun (see section 170MK); and

(c) the application was accompanied by the material required under section 170NBBB; and

(d) if the applicant is an employee, or a group of employees--the application is supported by the prescribed number of relevant employees; and

(e) the other parties have received a copy of the application as required by section 170NBBC; and

(f) all the following dates have passed:

(i) the nominal expiry dates of all certified agreements and old IR agreements applying to relevant employees;

(ii) the nominal expiry dates of all awards made under subsection 170MX(3) applying to relevant employees; and

(g) the manner in which the ballot will be conducted will ensure the secrecy and security of votes cast and will result in a fair and democratic ballot, to the extent that these matters are within the control of the applicant;

Note: If an application proposes a voting method other than a postal ballot, and the Commission believes that the proposed method will not meet the requirements of paragraph (g), the Commission may still grant the application for a ballot order but must order that the ballot be conducted as a postal ballot--see subsection 170NBCI(2).

(h) the ballot timetable proposed in the application is appropriate; and

(j) the question or questions to be put to the voters meet the requirements of paragraph 170NBBA(g); and

(k) the nominated ballot agent will conduct the ballot in accordance with this Division and any order or direction relating to the ballot made or given under this Division; and

(l) if the nominated ballot agent is not the Australian Electoral Commission--the ballot agent has consented to conduct the ballot; and

(m) if a party has submitted to the Commission that the applicant has not genuinely tried to reach agreement with the employer--there are not sufficient grounds for the Commission to accept the submission; and

(n) the requirements of any other matters prescribed by the regulations in relation to an application are met.

Applicant must be allowed to amend application in respect of some matters

(2) If the Commission is satisfied of all the matters in subsection (1) apart from paragraph (g), (h) or (k), the Commission must give the applicant the opportunity to amend the application in respect of the matters covered by those paragraphs.

Commission to consider whether it needs information from employer or applicant

(3) Before the Commission decides to grant the application, the Commission must consider the need to make an order under section 170NBCK in relation to the employer of the relevant employees, or in relation to the applicant.

Note: Section 170NBCK allows the Commission to order information relevant to compiling a roll of voters to be provided.

When Commission must grant application

(4) The Commission must grant the application:

(a) if it is satisfied of all the matters in subsection (1); and

(b) if it has considered the matter in subsection (3).

When Commission has discretion to refuse application

(5) In spite of subsection (4), the Commission may refuse the application if it is satisfied that the applicant, or a relevant employee, has at any time contravened a provision of this Division or an order made or direction given under this Division.

Note: Orders that can be made under this Division are orders under sections 170NBCH and 170NBCK and paragraph 170NBCL(1)(b).

170NBCH Grant of application--order for ballot to be held If the Commission grants the application, the Commission must order the applicant to hold a protected action ballot.

170NBCI Matters to be included in order (1) An order for a protected action ballot to be held must specify the following:

(a) the name of:

(i) if the applicant is an organisation of employees--the organisation; or

(ii) if the applicant is an employee, or a group of employees, represented by an applicant's agent--the applicant's agent; or

(iii) if the applicant is an employee, or a group of employees, not represented by an applicant's agent--the employee or employees;

(b) the types of employees who are to be balloted;

(c) the voting method;

(d) the timetable for the ballot;

(e) the name of the ballot agent who is authorised to conduct the ballot;

(f) the question or questions to be put to the voters in the ballot,

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including:

(i) the precise nature and form of the proposed industrial action; and

(ii) the day, or days, on which it is proposed the proposed action will take place; and

(iii) the duration of the proposed action.

(2) The order must specify a postal ballot as the voting method unless:

(a) another voting method was proposed in the application; and

(b) the Commission, after considering any submissions about the voting method made to it under section 170NBCB, is satisfied:

(i) that the method proposed in the application is appropriate in the circumstances and will meet the requirements of paragraph 170NBCF(1)(g); and

(ii) that if the method proposed by the applicant is an attendance ballot--the voting can take place during the voters' meal-time or other breaks, or outside their hours of employment.

(3) If the order specifies an attendance ballot as the voting method, it must specify that the voting must take place during the voters' meal-time or other breaks, or outside their hours of employment.

170NBCJ Guidelines for ballot timetables The President may develop guidelines in relation to appropriate timetables for the conduct of protected action ballots. The President may consult the Australian Electoral Commission, and any other ballot agent, in developing guidelines.

170NBCK Power of Commission to require information relevant to roll of voters (1) The Commission may order the employer of the relevant employees, or the applicant, or both, to provide:

(a) a list of employees of the type described in the application; and

(b) any other information that it is reasonable for the Commission to require in order to assist in the compilation of a roll of voters for the proposed ballot.

(2) The order may require the list, or other information, to be provided to the Commission or to the authorised ballot agent.

(3) The order may require the list, or other information, to be provided in whatever form the Commission considers appropriate.

170NBCL Roll to be compiled by Commission or ballot agent If the Commission makes a ballot order, it must:

(a) compile a list of the names of the persons who are eligible to be included on the roll of voters for the ballot and provide that list, as the roll of voters, to the authorised ballot agent; or

(b) order, by separate order, the authorised ballot agent to compile the roll of voters for the ballot.

170NBCM Eligibility to be included on the roll (1) A person is eligible to be included on the roll of voters for the ballot if, and only if:

(a) if the applicant is an organisation of employees--the person:

(i) was a member of the organisation on the day the ballot order was made; and

(ii) was employed by the employer on the day the ballot order was made; and

(iii) will be subject to the agreement in respect of whose negotiation the bargaining period was initiated; or

(b) if the applicant is an employee, or a group of employees--the person:

(i) was employed by the employer on the day the ballot order was made; and

(ii) will be subject to the agreement in respect of whose negotiation the bargaining period was initiated.

(2) A person is not eligible to be included on the roll of voters for the ballot if, on the day the ballot order was made, the person was a party to an AWA whose nominal expiry date had not passed.

170NBCN Adding or removing names from the roll (1) If:

(a) a person requests the authorised ballot agent to include the person's name on the roll of voters for a protected action ballot; and

(b) the ballot agent is satisfied that the person is eligible to be included on the roll; and

(c) the voting in the ballot has not yet ended;

the ballot agent must add the person's name to the roll.

(2) If:

(a) a person applies to the Commission for a declaration that the person is eligible to be included on the roll of voters for the ballot; and

(b) the Commission is satisfied that the person is eligible to be included on the roll; and

(c) the voting in the ballot has not yet ended;


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the Commission must make the declaration and direct the ballot agent to include the person's name on the roll.

(3) If:

(a) a party, or a person whose name is on the roll of voters for a protected action ballot, applies to the Commission for a declaration that a person whose name has been included on the roll of voters for the ballot is not eligible to be so included; and

(b) the voting in the ballot:

(i) in the case of a postal ballot--has not yet finished; and

(ii) in any other case--has not yet started; and

(c) the Commission is satisfied that the person is not eligible to be so included;

the Commission must make the declaration and direct the ballot agent to remove the person's name from the roll.

(4) If a person's name is removed from the roll of voters for a postal ballot after the person has cast a vote, the ballot agent must take reasonable steps to ensure that the person's ballot paper is not included in the count of the votes.

170NBCO Variation of order Variation sought by applicant

(1) An applicant for a ballot order may apply to the Commission, at any time before the order expires, to vary the ballot order.

Variation sought by ballot agent

(2) The authorised ballot agent for a particular ballot may apply to the Commission, at any time before voting has ended, to vary:

(a) the voting method specified in the ballot order; or

(b) the timetable for the ballot specified in the ballot order.

Note: See also sections 170NBCB and 170NBCC (parties etc. may make submissions and Commission may give directions).

170NBCP Expiry and revocation of order (1) If a ballot has not been held within the period specified in the ballot order, the order expires at the end of that period.

(2) An applicant for a ballot order may apply to the Commission, at any time before the order expires, to revoke the ballot order.

(3) If the applicant makes an application under subsection (2), the Commission must revoke the order.

170NBCQ Compliance with orders and directions An organisation of employees or a person to whom an order or a direction under this Division is expressed to apply must comply with the order or direction.

170NBCR Commission to notify parties As soon as practicable after making a ballot order, the Commission must ensure that a copy of the order is given to each party.

Subdivision D--Conduct and results of protected action ballot 170NBD Conduct of ballot A ballot is not a protected action ballot unless it is conducted by the authorised ballot agent for the ballot.

170NBDA Form of ballot paper The ballot paper must be in the prescribed form and must include the following:

(a) the name of the applicant or the applicant's agent (as the case requires);

(b) the types of employees who are to be balloted;

(c) the name of the ballot agent authorised to conduct the ballot;

(d) the question or questions ordered by the Commission to be put to the voters in the ballot, including:

(i) the precise nature and form of the proposed industrial action; and

(ii) the day, or days, on which it is proposed the proposed action will take place; and

(iii) the duration of the proposed action;

(e) the statement set out in Schedule 5; and

(f) instructions to the voter on how to complete the ballot paper.

170NBDB Who can vote A person cannot vote in a protected action ballot unless the person's name is

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on the roll of voters for the ballot.

170NBDC Declaration of ballot results (1) As soon as practicable after the end of the voting, the ballot agent must, in writing:

(a) make a declaration of the results of the ballot; and

(b) inform the parties and the Industrial Registrar of the result.

170NBDD Effect of ballot Industrial action is authorised under this Division if:

(a) the action was the subject of a protected action ballot; and

(b) at least 50% of persons on the roll of voters for the ballot voted in the ballot; and

(c) more than 50% of the votes validly cast were votes approving the action.

Note: Industrial action must be authorised under this Division if it is to be protected action under Division 8--see section 170MQ.

170NBDE Registrar to record questions put in ballot and results (1) The Industrial Registrar must, in relation to each protected action ballot that has been held, keep a record of:

(a) the questions put to voters in the ballot; and

(b) the results of the ballot declared by the ballot agent under section 170NBDC.

(2) The Industrial Registrar must, as soon as practicable after being notified of the results of a ballot by the ballot agent under section 170NBDC, publish the results.

Subdivision E--Ballot agents 170NBE Register of ballot agents (1) The Industrial Registrar must keep a register of ballot agents who can be authorised by the Commission to conduct protected action ballots.

(2) The Industrial Registrar must not enter the name of a person on the register unless satisfied that the person is a fit and proper person to conduct protected action ballots.

(3) In deciding whether a person is a fit and proper person, the Industrial Registrar must have regard to the following factors:

(a) whether the person is capable of ensuring the secrecy and security of votes cast in a ballot conducted by the person, and ensuring that any such ballot will be fair and democratic;

(b) whether the person is likely to maintain appropriate confidentiality of records (including the roll of voters) kept in relation to protected action ballots;

(c) if the person is a natural person--whether the person has contravened a prescribed law within the last 5 years;

(d) if the person is a body corporate--whether the body, or an officer or employee of the body, has contravened a prescribed law within the last 5 years.

(4) If a person has contravened a prescribed law within the last 5 years, the Registrar must not include the person on the register unless the person has been granted leave under section 170NBEA to seek to have the person's name entered on the register.

(5) If a ballot agent that is a body corporate is authorised to conduct a protected action ballot, the body must not authorise a person to participate in the conduct of the ballot if the person has contravened a prescribed law within the last 5 years.

(6) In this section:

prescribed law means any of the following:

(a) a Commonwealth, State or Territory law whose contravention is punishable by imprisonment for 12 months or more;

(b) a Commonwealth, State or Territory law whose contravention involves dishonesty and is punishable by imprisonment for 6 months or more;

(c) a provision of this Division;

(d) a provision of Part XA;

(e) section 307, 307A, 308, 310, 313, 314, 314A, 315, 316, 317, 318 or 332.

170NBEA Leave to be included on register (1) A person who has contravened a prescribed law (within the meaning of section 170NBE) within the last 5 years may apply to the Court for leave to seek to have the person's name entered on the register of ballot agents kept under section 170NBE.

(2) When granting leave under this section, the Court may impose any conditions or restrictions that it thinks fit.

(3) The Court may at any time, on the application of the Industrial Registrar,

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revoke leave granted by the Court under this section.

170NBEB Removal from register (1) If the Industrial Registrar is satisfied that a person whose name appears on the register is not a fit and proper person to conduct protected action ballots, the Registrar may remove the name from the register.

(2) Before removing a person's name from the register, the Industrial Registrar must:

(a) give the person notice of the intention to remove the name, and a written statement of reasons for the decision; and

(b) give the person a reasonable opportunity to make submissions to the Industrial Registrar on the intended removal of the name.

Subdivision F--Funding of ballots 170NBF Liability for cost of ballot (1) The applicant for a ballot order is liable for the cost of holding the ballot.

(2) If the application for the ballot order was made by joint applicants, each applicant is jointly and severally liable for the cost of holding the ballot.

170NBFA Partial reimbursement of cost of ballot (1) If:

(a) the applicant notifies the Industrial Registrar of the cost incurred by the applicant in relation to the holding of the ballot; and

(b) does so within a reasonable time after the completion of the ballot;

the Industrial Registrar must determine how much (if any) of that cost was reasonably and genuinely incurred by the applicant in holding the ballot. The amount determined by the Industrial Registrar is the reasonable ballot cost.

(2) The Commonwealth is liable to pay to the applicant 80% of the reasonable ballot cost.

(3) However, if the application for the ballot order was made by joint applicants, the Commonwealth is liable to pay to each person who was a joint applicant for the order at the time the order was made, the amount worked out under the following formula:

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(4) However, if all of the persons who were joint applicants for the order at the time the order was made request the Commonwealth to pay the amount that is 80% of the reasonable ballot cost otherwise than as specified in subsection (3), the Commonwealth is liable to distribute that amount in accordance with the request.

(5) The regulations may prescribe matters to be taken into account by the Industrial Registrar in determining whether costs are reasonable and genuinely incurred.

Subdivision G--Miscellaneous 170NBG Identity of certain persons not to be disclosed by Commission (1) The Commission must not disclose information that the Commission knows, or has reasonable grounds to believe, will identify a person as:

(a) an applicant who is represented by an applicant's agent; or

(b) a relevant employee who was one of the prescribed number of employees supporting an application for a ballot order (as required by subsection 170NBB(3)); or

(c) a person whose name appears on the roll of voters for a protected action ballot; or

(d) a person who is a party to an AWA.

(2) Each of the following is an exception to the prohibition in subsection (1):

(a) the disclosure is required or permitted by this Act or by another Act, or by regulations made under an Act;

(b) the person whose identity is disclosed has, in writing, authorised the disclosure.

170NBGA Identity of certain persons not to be disclosed by individuals (1) A person must not disclose protected information that the person knows, or has reasonable grounds to believe, will identify another person as a person referred to in paragraph 170NBG(1)(a), (b), (c) or (d).

Penalty: Imprisonment for 6 months.

(2) Each of the following is an exception to the prohibition in subsection (1):


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(a) the disclosure is made by a person in the course of performing functions or duties:

(i) as a Registry official; or

(ii) of, or on behalf of, an authorised ballot agent;

(b) the disclosure is required or permitted by this Act or by another Act or by regulations made under an Act;

(c) the person whose identity is disclosed has, in writing, authorised the disclosure.

(3) For the purposes of determining the burden of proof in proceedings for an offence against subsection (1), the exceptions in subsection (2) are taken to be part of the description of the offence.

(4) In this section:

protected information, in relation to a person, means information that the person acquired:

(a) in the course of performing functions or duties as a Registry official; or

(b) in the course of performing functions or duties as, or on behalf of, an authorised ballot agent; or

(c) from a person referred to in paragraph (a) or (b) who acquired the information as mentioned in paragraph (a) or (b).

Registry official means:

(a) the Industrial Registrar; or

(b) a member of the staff of the Industrial Registry (including a Deputy Industrial Registrar).

170NBGB Immunity if person acted in good faith on ballot results (1) If:

(a) the results of a protected action ballot as declared by the authorised ballot agent purported to authorise particular industrial action; and

(b) an organisation or person, acting in good faith on the declared ballot results, organised or engaged in that industrial action; and

(c) it is subsequently determined that the action was not authorised by the ballot;

no action lies against the organisation or person under any law (whether written or unwritten) in force in a State or Territory in respect of the action unless the action involved:

(d) personal injury; or

(e) wilful or reckless destruction of, or damage to, property; or

(f) the unlawful taking, keeping or use of property.

(2) Subsection (1) does not prevent an action for defamation being brought in respect of anything that occurred in the course of industrial action.

170NBGC Preservation of ballot papers If a ballot agent conducts a protected action ballot, the ballot agent must ensure that the roll of voters and all ballot papers, envelopes and other documents and records relevant to the ballot are kept for one year after the completion of the ballot.

170NBGD Conferral of function on AEC (1) If the Australian Electoral Commission is the authorised ballot agent for a protected action ballot, it is a function of the Australian Electoral Commission to conduct the ballot.

(2) If the Australian Electoral Commission is:

(a) the ballot agent nominated in an application for a ballot order; or

(b) the authorised ballot agent for such a ballot;

the Australian Electoral Commission cannot make a submission or an application to the Commission seeking to cease having that status in relation to the ballot.

170NBGE Regulations The regulations may make provision in relation to the following matters:

(a) the qualifications and appointment of applicant's agents;

(b) procedures to be followed in relation to the conduct of a ballot, or class of ballot, under this Division;

(c) the qualifications, appointment, powers and duties of scrutineers;

(d) the entry and removal of names from the register of ballot agents referred to in subsection 170NBE(1);

(e) the manner in which ballot results are to be published under section 170NBDE.

Note: Other regulation-making powers are included in section 359.

24 After paragraph 170ND(d)

Insert:

(da) section 170NBCQ;

25 At the end of section 170NF

Add:

(8) An application for an order under subsection (1) that relates to a contravention of section 170NBCQ in respect of a protected action ballot

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may be made by:

(a) an employee who is eligible to be included on the roll of voters for the ballot; or

(b) an employer of employees referred to in paragraph (a); or

(c) an applicant for the order for the protected action ballot to be held; or

(d) an inspector; or

(e) any other person prescribed by the regulations.

26 After subsection 178(1)

Insert:

(1A) Subsection (1) does not apply to an order of the Commission made under Division 8A of Part VIB.

Note: Division 8A of Part VIB deals with protected action ballots. Breaches of orders made under Division 8A are dealt with under section 170ND.

27 At the end of sections 287 and 288

Add:

(2) This section does not apply to protected action ballots ordered under Division 8A of Part VIB.

Note: The right to vote in protected action ballots is provided for in Division 8A of Part VIB.

28 Section 307

Repeal the section, substitute:

307 False statement in application for protected action ballot order A person must not, in an application for a ballot order under Division 8A of Part VIB:

(a) make a statement; and

(b) do so reckless as to whether the statement is false or misleading in a material particular.

Penalty: $1,000.

307A False statement in joint application for protected action ballot order A person must not, in an application for a ballot order under Division 8A of Part VIB:

(a) join with other persons in making a statement; and

(b) do so reckless as to whether the statement is false or misleading in a material particular.

Penalty: $ 1,000.

29 After section 314

Insert:

314A Failure to preserve protected action ballot papers etc. A person must not knowingly or recklessly contravene section 170NBGC.

Penalty: $500 or imprisonment for 6 months, or both.

30 Paragraph 317(5)(a)

Omit "or 136".

31 Paragraph 317(5)(b)

After "Division 7", insert "or 7A".

32 At the end of section 317

Add:

(6) In subsections (2), (3) and (4):

ballot includes a ballot held under Division 8A of Part VIB.

33 After Schedule 4

Insert:

Schedule 5--Statement to be included on protected action ballot paper Note: See section 170NBDA.

Your vote in this ballot is secret and you are free to choose whether or not to support the proposed industrial action. It is illegal for anyone to force you or pressure you to vote for or against the questions on the ballot.

You are not required to take industrial action even if the majority of people in the ballot agree to take action. It is illegal for anyone to force you or pressure you to take industrial action or not to take industrial action.

It is illegal for an employer to pay you wages while you are engaged in any form of industrial action.

If you believe any person has attempted to force you or pressure you to vote yes or no, or to take or not take industrial action you can contact the Office of the Employment Advocate to receive advice and assistance.

Part 2--Application and saving

34 Application of amendments


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(1) The amendments made by this Schedule apply in relation to industrial action taken on or after commencing day.

(2) However, the amendments do not apply in relation to industrial action if:

(a) the action is protected action (as identified in subsection 170ML(2) of the Workplace Relations Act 1996); and

(b) the requirements of sections 170MO and 170MR as in force immediately before commencing day in relation to the action have been met before commencing day; and

(c) the action is taken within 14 days after commencing day.

(3) In this item:

commencing day means the day on which this item commences.

35 Saving

(1) In spite of item 34, if:

(a) an order made under subsection 135(2) or (2B) of the Workplace Relations Act 1996 is in force immediately before commencing day; and

(b) the results of the ballot taken, or to be taken, pursuant to the order are not known before commencing day;

then:

(c) the order continues to have effect on and after commencing day; and

(d) Division 4 of Part VI of that Act continues to apply in relation to the order, and to any thing done under, or in connection with the order, as if the amendments made by this Schedule to that Division had not been made; and

(e) section 170MQ as in force immediately before commencing day applies in relation to industrial action that:

(i) has been the subject of a ballot ordered under a provision referred to in paragraph (a); and

(ii) starts within 14 days after the results of the ballot are known; and

(f) section 170MO as in force immediately after commencing day applies in relation to industrial action referred to in paragraph (e).

(2) In this item:

commencing day means the day on which this item commences.