Fair Work Regulations 2009

For paragraph 469(b) of the Act, this regulation sets out procedures to be followed in relation to the conduct of a protected action ballot.

The protected action ballot agent for the ballot must:

for attendance voting or postal voting—issue to each employee who is to be balloted a ballot paper that bears:

the agent’s initials; or

a facsimile of the agent’s initials; and

for electronic voting—ensure that the protected action ballot identifies the protected action ballot agent who is authorised to conduct the protected action ballot.

For subregulation (2), a ballot paper may be issued to an employee by post, email or electronically.

If the ballot is conducted by postal voting, the agent must, as soon as practicable, post to each employee who is to be balloted a sealed envelope that contains:

the ballot paper; and

information about:

the closing date of the ballot; and

the time, on the closing date, by which the agent must receive the employee’s vote; and

an envelope in which the employee must place his or her ballot paper; and

a prepaid envelope addressed to the protected action ballot agent and that may be posted without cost to the employee; and

any other material that the protected action ballot agent considers to be relevant to the ballot.

The envelope mentioned in paragraph (3)(c) must:

set out a form of declaration that the employee has not voted before in the ballot; and

have a place on which the employee can sign the envelope; and

be able to fit into the prepaid envelope mentioned in paragraph (3)(d).

If the ballot is conducted by electronic voting, the protected action ballot agent must, as soon as practicable, issue to each employee who is to be balloted the following:

instructions that allow the employee to access the relevant electronic voting program, including a unique identifier that allows the employee to access the relevant electronic voting program;

information about the closing date for the ballot and the time, on the closing date, by which the protected action ballot agent must receive the employee’s vote;

any other material that the protected action ballot agent considers to be relevant to the ballot.

An employee who is to be balloted by postal voting may ask the protected action ballot agent for a replacement ballot paper because:

the employee did not receive the documents mentioned in subregulation 3.13(3); or

the employee did not receive a ballot paper in those documents; or

the ballot paper has been lost or destroyed; or

the ballot paper has been spoilt.

The request must:

be received by the protected action ballot agent on or before the closing day of the ballot; and

state the reason for the request; and

if practicable, be accompanied by evidence that verifies, or tends to verify, the reason; and

include a declaration by the employee that the employee has not voted at the ballot.

The protected action ballot agent must give the employee a replacement ballot paper if the agent is satisfied that:

the reason for the request is a reason mentioned in subregulation (5); and

the request is in accordance with the requirements mentioned in subregulation (6); and

the employee has not voted at the ballot.

An employee may ask the protected action ballot agent for a replacement of the information provided under subregulation (4A) if:

the employee did not receive information about how to access the electronic voting system; or

the information provided under subregulation (4A) has been lost or destroyed; or

the unique identifier provided for under subregulation (4A) did not allow the employee to access the electronic voting system.

A request under subregulation (7A) must:

be received by the protected action ballot agent on or before the closing day for the ballot; and

state the reason for the request; and

if it is available, be accompanied by evidence that verifies, or tends to verify, the reason given for the request; and

include a declaration by the employee that the employee has not voted in the ballot.

The protected action ballot agent must give an employee replacement information if the protected action ballot agent is satisfied that:

the reason for the request is a reason mentioned in subregulation (7A); and

the request is in accordance with the requirements mentioned in subregulation (7B); and

the employee has not voted in the ballot.

If:

an employee is to be balloted by attendance voting; and

the employee satisfies the protected action ballot agent, before depositing the ballot paper in the repository that serves to receive or hold ballot papers, that the employee has accidentally spoilt the paper;

The protected ballot agent must also:

mark “spoilt” on the ballot paper and initial the marking; and

keep the ballot paper.