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This is a Bill, not an Act. For current law, see the Acts databases.
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:
This Act may be cited as the Workplace Relations Amendment (Secret
Ballots for Protected Action) Act 2000.
(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.
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repealed as set out in the applicable items in the Schedule concerned, and any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.
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 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:
(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.
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):
(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:
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
Division 8A (see section 170NBDD).
22 After section 170MW
Insert:
(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:
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
action in response to an employer lockout (see section 170MQ).
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.
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 the 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.
(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.
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.
(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 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.
(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.
(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.
(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.
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.
(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.
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 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).
If the Commission grants the application, the Commission must order the
applicant to hold a protected action ballot.
(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,
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.
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.
(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.
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.
(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.
(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;
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.
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).
(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.
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.
As soon as practicable after making a ballot order, the Commission must
ensure that a copy of the order is given to each party.
A ballot is not a protected action ballot unless it is conducted by the
authorised ballot agent for the ballot.
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.
A person cannot vote in a protected action ballot unless the
person’s name is on the roll of voters for the ballot.
(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.
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.
(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.
(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.
(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, revoke leave granted by the Court under this section.
(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.
(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.
(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:
(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.
(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.
(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):
(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).
(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.
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.
(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.
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
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:
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.
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.
Insert:
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:
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.
34 Application of
amendments
(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.