Fair Work Act 2009

A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or 2 or more such bargaining representatives (acting jointly), may apply to the FWC for an order (a protected action ballot order) requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement.

Subsection (1) does not apply if the proposed enterprise agreement is:

a greenfields agreement; or

a cooperative workplace agreement.

Subsection (1) does not apply unless there has been a notification time in relation to the proposed enterprise agreement.

For notification time, see subsection 173(2). Protected industrial action cannot be taken until after bargaining has commenced (including where the scope of the proposed enterprise agreement is the only matter in dispute).

The application must specify:

the group or groups of employees who are to be balloted; and

the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action; and

the name of the person or entity that the applicant wishes to be the protected action ballot agent for the protected action ballot.

The protected action ballot agent for the ballot must be an eligible protected action ballot agent unless there are exceptional circumstances: see section 444.

A group of employees specified under paragraph (3)(a) is taken to include only employees who:

will be covered by the proposed enterprise agreement; and

either:

are represented by a bargaining representative who is an applicant for the protected action ballot order; or

are bargaining representatives for themselves but are members of an employee organisation that is an applicant for the protected action ballot order.

The application must be accompanied by any documents and other information prescribed by the regulations.