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This is a Bill, not an Act. For current law, see the Acts databases.
2002
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
2002
No. ,
2002
(Employment and Workplace
Relations)
A Bill for an Act to amend the
Workplace Relations Act 1996 in relation to secret ballots for protected
action, and for related purposes
Contents
Part 1—Amendments 3
Workplace Relations Act
1996 3
Part 2—Application and
saving 39
Workplace Relations Act
1996 41
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 2002.
(1) Each provision of this Act specified in column 1 of the table
commences, or is taken to have commenced, on the day or at the time specified in
column 2 of the table.
|
Commencement information |
||
|---|---|---|
|
Column 1 |
Column 2 |
Column 3 |
|
Provision(s) |
Commencement |
Date/Details |
|
1. Sections 1 to 3 and anything in this Act not elsewhere covered by
this table |
The day on which this Act receives the Royal Assent |
|
|
2. Schedule 1 |
A single day to be fixed by Proclamation, subject to
subsection (3) |
|
|
3. Schedule 2 |
The later of: |
|
Note: This table relates only to the provisions of this Act
as originally passed by the Parliament and assented to. It will not be expanded
to deal with provisions inserted in this Act after assent.
(2) Column 3 of the table is for additional information that is not part
of this Act. This information may be included in any published version of this
Act.
(3) If a provision covered by item 2 of the table does not commence
within the period of 6 months beginning on the day on which this Act receives
the Royal Assent, it commences on the first day after the end of that
period.
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repealed as set out in the applicable items in the Schedule concerned, and any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 At the end of section 4 (before the
note)
Add:
(10) 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).
2 Subsection 134(5) (paragraphs (d) and (e)
of the definition of prescribed premises)
Omit “136”, substitute “Division 8A of
Part VIB”.
3 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.
4 Subsection 135(2B)
Repeal the subsection.
5 Subsection 135(3)
Omit “or (2)”.
6 Subsections 136(1), (2), (3), (4), (5), (6)
and (7)
Repeal the subsections.
7 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;
8 Subsections 136(8B), (9) and
(10)
Repeal the subsections.
Note: The heading to section 136 is replaced by the
heading “Revocation of order”.
9 Subsection 137(1)
Omit “, (2), (2A) or (2B) or 136(2)”, substitute “or
(2A)”.
10 Subsection 138(1)
Omit “or 136”.
11 Subsection 138(2)
Repeal the subsection.
12 Subsection 138(5)
Omit “or 136”.
13 Subsection 138(6)
Repeal the subsection.
14 Section 139
Omit “, (2) or (2B) or section 136,”.
15 Section 140
Repeal the section.
16 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 this Act or under another 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).
17 At the end of subsection
170ML(7)
Add “and to the provisions of Division 8A”.
18 Subsection 170MO(2)
Omit “3 working days’”, substitute “the
required”.
19 After subsection
170MO(2)
Insert:
(2A) For the purposes of paragraph (2)(b), the required written
notice is:
(a) 3 working days’ written notice; or
(b) if a ballot order made under section 170NBCH in respect of the
action specifies a higher number of days—that number of days’
written notice.
Note: For the maximum number of days the ballot order can
specify, see subsection 170NBCI(5).
20 Subsection 170MO(6)
Repeal the subsection, substitute:
(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.
21 Subsections 170MP(1) and
(2)
Repeal the subsections, substitute:
(1) If the Commission has made an order in relation to negotiations,
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,
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.
22 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).
23 At the end of
section 170MW
Add:
(11) In an order under subsection (1), the Commission may, if it is
satisfied, in relation to any industrial action that might be taken (by virtue
of section 170MWE) after the end of the period of suspension, that there
are exceptional circumstances justifying the period of written notice required
by subsection 170MWE(3) being longer than 3 days, specify a longer period, of up
to 7 days.
24 Before
section 170MX
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 the required written notice of the intention to take the action. The
notice must state the nature of the intended action and the day when it will
begin.
(3A) For the purposes of subsection (3), the required written
notice is:
(a) 3 working days’ written notice; or
(b) if the Commission, in the order made under section 170MW
suspending the bargaining period, specifies a higher number of days—that
number of days’ written notice.
Note: For the maximum number of days the suspension order
can specify, see subsection 170MW(11).
(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 the required 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 the required 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).
25 After Division 8 of
Part VIB
Insert:
Object
(1) The object of this Division is to establish a transparent process
which allows employees directly concerned to choose, by means of a fair and
democratic secret ballot, whether to authorise industrial action supporting or
advancing claims by organisations of employees, or by employees.
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 person authorised by the Commission in the ballot order to
conduct the ballot.
authorised independent adviser, in relation to a protected
action ballot, means the person authorised by the Commission in the ballot order
to be the independent adviser for the ballot.
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 either of the following:
(a) the applicant;
(b) the employer of the relevant employees.
prescribed number, in relation to relevant employees,
means:
(a) if there are less than 80 relevant employees—4; or
(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 an authorised 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).
(1A) However, if there are one or more existing agreements, the
application must be made not more than 30 days before:
(a) if there is only one existing agreement—the nominal expiry date
of the existing agreement; or
(b) if there are 2 or more existing agreements—whichever is the last
occurring of the nominal expiry dates of those existing agreements.
(1B) For the purposes of subsection (1A), an existing
agreement is:
(a) a certified agreement applying to relevant employees; or
(b) an old IR agreement applying to relevant employees.
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.
(1) The application must include the following:
(a) the question or questions to be put to the relevant employees in the
ballot, including the nature of the proposed industrial action;
(b) details of the types of employees who are to be balloted;
(c) any details required by rules made for the purpose of this
section.
(2) The application may include the name of a person nominated by the
applicant to conduct the ballot.
Note: The question of who conducts the ballot is ultimately
decided by the Commission—see paragraph 170NBCI(1)(e) and
section 170NBE.
(3) The President may make rules specifying:
(a) the matters to be included in an application for a ballot order;
and
(b) the form in which the application is to be made.
(4) 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) 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:
(a) the other party; and
(b) any person nominated in the application to conduct the
ballot;
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.
If:
(a) an application for a ballot order is lodged with the Commission;
and
(b) the Commission considers that notifying the parties, or a person who
may become the authorised ballot agent, of the procedure to be followed by the
Commission in dealing with that application will not delay, and may expedite,
the determination of the application;
the Commission may notify the parties or person concerned
accordingly.
(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 reasonably possible, determine all applications
made under this Division within 2 working days of the Commission after the
application is made.
Note: In exercising its powers, the Commission is also
required to act according to equity, good conscience and the substantial merits
of the case, without regard to technicalities and legal forms (see paragraph
110(2)(c)). It is not bound by the rules of evidence, and may inform itself in
any manner it considers just (see paragraph 110(2)(b)).
(1A) However, the Commission must not determine an application for a
ballot order until it is satisfied that:
(a) the applicant has complied with section 170NBBC; and
(b) the persons referred to in subsections 170NBCB(1) and (1A) have had a
reasonable opportunity to make submissions in relation to the
application.
(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.
Note: See also paragraph 111(1)(s) and subsection 111(2)
(which give the Commission the power to summon before it anyone it considers
would help in the hearing or determination of a proceeding).
(1A) A person nominated in an application to conduct a ballot may make
submissions, and apply for directions, relating to the application.
(1B) An authorised ballot agent may make submissions, and apply for
directions, relating to any aspect 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.
(1) The Commission may give directions, by order, in connection
with:
(a) an application for a ballot order; or
(b) any aspect of the conduct of a protected action ballot.
(2) Without limiting subsection (1), the Commission may give
directions aimed at ensuring that a protected action ballot is conducted
expeditiously.
(3) In deciding whether to give directions under this section, and the
content of any such directions, the Commission must have regard to the
desirability of the ballot results being available to the parties within 10 days
after the ballot order is made.
(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; and
(c) the Commission considers that determining the applications at the same
time will not unreasonably delay the determination of any of the
applications;
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; and
(d) the Commission considers that requiring the ballots to be held at the
same time will not unreasonably delay the conduct of either ballot;
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 grant an application for a ballot order if, and
must not grant the application unless, it is satisfied that:
(a) during the bargaining period, the applicant genuinely tried to reach
agreement with the employer of relevant employees; and
(b) the applicant is genuinely trying to reach agreement with the
employer.
Note 1: An application for a ballot order must comply with
the requirements set out in Subdivision B.
Note 2: To work out when a bargaining period began, see
section 170MK.
When Commission has discretion to refuse application
(2) Despite subsection (1), the Commission may refuse the application
if it is satisfied:
(a) that granting the application would be inconsistent with the object of
this Division (see section 170NBA); or
(b) 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 person authorised by the Commission to conduct the
ballot;
(f) the name of the person (if any) authorised by the Commission to be the
independent adviser for the ballot;
(g) the question or questions to be put to the relevant employees in the
ballot, including the nature of the proposed industrial action.
Note 1: Section 170NBE specifies who may be authorised
by the Commission to conduct protected action ballots.
Note 2: Section 170NBEA specifies who may be authorised
by the Commission to be the independent adviser for a protected action
ballot.
(2) The order must specify a postal ballot as the voting method
unless:
(a) the order specifies another voting method; and
(b) the Commission is satisfied that the other voting method is more
efficient and expeditious than a postal ballot.
(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.
(4) If the Commission is satisfied that there are exceptional
circumstances justifying the percentage referred to in paragraph 170NBDD(3)(a)
being lower than 40%, the order may specify a lower percentage.
Note: Subsection 170NBDD(1) requires a certain percentage of
people on the roll to have voted in the ballot in order for the ballot to
operate as an authorisation of industrial action.
(5) If the Commission is satisfied, in relation to the proposed industrial
action that is the subject of the order, that there are exceptional
circumstances justifying the period of written notice referred to in paragraph
170MO(2)(b) being longer than 3 days, the order may specify a longer period, of
up to 7 days.
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 person, 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 authorised ballot
agent to include the person’s name on the roll.
(3) If:
(a) a party, the authorised ballot agent, 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 authorised 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 authorised 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 and to the authorised
ballot agent.
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 to be put to the relevant employees in the
ballot, including the nature of the proposed industrial action; and
(e) a statement that the voter’s vote is secret and that the voter
is free to choose whether or not to support the proposed industrial action;
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.
As soon as practicable after the end of the voting, the authorised 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.
Report by authorised ballot agent
(1) As soon as practicable after the end of the voting, the authorised
ballot agent must give the Industrial Registrar a written report about the
conduct of the ballot.
(2) A report under subsection (1) must set out details of:
(a) any complaints made to the authorised ballot agent about the conduct
of the ballot; and
(b) any irregularities in relation to the conduct of the ballot that have
come to the attention of the authorised ballot agent.
(3) Subsection (2) does not limit subsection (1).
Report by authorised independent adviser
(4) As soon as practicable after the end of the voting, the authorised
independent adviser (if any) must give the Industrial Registrar a written report
about the conduct of the ballot.
(5) A report under subsection (4) must set out details of:
(a) any complaints made to the authorised independent adviser about the
conduct of the ballot; and
(b) any irregularities in relation to the conduct of the ballot that have
come to the attention of the authorised independent adviser.
(6) Subsection (5) does not limit subsection (4).
Definitions
(7) In this section:
conduct, in relation to a protected action ballot, includes,
but is not limited to, the compilation of the roll of voters for the
ballot.
irregularity, in relation to the conduct of a protected
action ballot, includes an act or omission by means of which the full and free
recording of votes by all persons entitled to record votes and by no other
persons is, or is attempted to be, prevented or hindered.
(1) Industrial action is authorised under this Division if:
(a) the action was the subject of a protected action ballot; and
(b) at least the prescribed percentage 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; and
(d) if there is only one existing agreement—the action commences
during the 30-day period beginning on whichever is the later of the
following:
(i) the date of the declaration of the results of the ballot;
(ii) the nominal expiry date of the existing agreement; and
(e) if there are 2 or more existing agreements—the action commences
during the 30-day period beginning on whichever is the later of the
following:
(i) the date of the declaration of the results of the ballot;
(ii) whichever is the last occurring of the nominal expiry dates of those
existing agreements; and
(f) if there is no existing agreement—the action commences during
the 30-day period beginning on the date of the declaration of the results of the
ballot.
Note: Industrial action must be authorised under this
Division if it is to be protected action under Division 8—see
section 170MQ.
(2) However, the action is not authorised to the extent that it occurs
after the end of the bargaining period referred to in
section 170NBB.
Note: If another bargaining period is initiated later, and
industrial action is proposed for that later period, it can only be authorised
if a fresh application for a ballot order is granted, and the other steps
required by this Division completed, during that later period.
(2A) The Commission may, by order, extend the 30-day period mentioned in
paragraph (1)(d), (e) or (f) by up to 30 days if the employer and the
applicant for the ballot order jointly apply to the Commission for the period to
be extended.
(2B) The Commission must not make an order under subsection (2A)
extending the 30-day period if that period has previously been
extended.
(3) For the purposes of subsection (1), the prescribed
percentage is:
(a) 40%; or
(b) if the ballot order specifies a lower percentage—that
percentage.
(4) For the purposes of subsection (1), an existing agreement
is:
(a) a certified agreement applying to relevant employees; or
(b) an old IR agreement applying to relevant
employees.
(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 authorised 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 authorised ballot agent under
section 170NBDC, publish the results.
(1) In a ballot order, the Commission may name as the authorised ballot
agent:
(a) the Australian Electoral Commission; or
(b) another person.
(2) The Commission must not name a person other than the Australian
Electoral Commission as the authorised ballot agent for the ballot unless the
Commission is satisfied that the person:
(a) is capable of ensuring the secrecy and security of votes cast in the
ballot; and
(b) is capable of ensuring that the ballot will be fair and democratic;
and
(c) will conduct the ballot expeditiously; and
(d) is otherwise a fit and proper person to conduct the ballot.
(3) The Commission must not name the applicant as the authorised ballot
agent for the ballot unless:
(a) the applicant nominates another person to be the authorised
independent adviser for the ballot; and
(b) the Commission names the other person as the authorised independent
adviser for the ballot.
Note: Section 170NBEA specifies who may be authorised
by the Commission to be the independent adviser for a protected action
ballot.
(4) If the Commission is satisfied that a person is not sufficiently
independent of the applicant, the Commission must not name the person as the
authorised ballot agent for the ballot unless:
(a) the applicant nominates a third person as the authorised independent
adviser for the ballot; and
(b) the Commission names the third person as the authorised independent
adviser for the ballot.
Note: Section 170NBEA specifies who may be authorised
by the Commission to be the independent adviser for a protected action
ballot.
(5) The regulations may prescribe:
(a) conditions that a person must meet in order to satisfy the Commission
that the person is a fit and proper person to conduct a ballot; and
(b) factors to be taken into account by the Commission in determining
whether a person is a fit and proper person to conduct a ballot.
(1) In a ballot order, the Commission may name a person nominated by the
applicant as the authorised independent adviser.
(2) The Commission must not name a person as the authorised independent
adviser for the ballot unless the Commission is satisfied that the
person:
(a) is sufficiently independent of the applicant; and
(b) is capable of giving the authorised ballot agent:
(i) advice that is; and
(ii) recommendations that are;
directed towards ensuring that the ballot will be fair and
democratic.
(3) The regulations may prescribe factors to be taken into account by the
Commission in determining whether a person is capable of giving an authorised
ballot agent:
(a) advice that is; and
(b) recommendations that are;
directed towards ensuring that a protected action ballot will be fair and
democratic.
(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.
(3) Subsections (1) and (2) have effect subject to subsection
170NBFA(3).
(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 authorised ballot agent 80%
of the reasonable ballot cost.
(3) If the Commonwealth becomes liable to pay to the authorised ballot
agent 80% of the reasonable ballot cost, the applicant for the ballot order is,
to the extent of the Commonwealth’s liability, discharged from liability
under section 170NBF for the cost of holding the ballot.
(4) 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 this Act or under another 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; or
(iii) as an authorised independent adviser;
(b) the disclosure is required or permitted by this Act or by another Act,
or by regulations made under this Act or under another 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.
(1) An order of the Commission that a person hold a protected action
ballot, and any order or decision of the Commission in connection with the
order:
(a) is final and conclusive; and
(b) must not be challenged, appealed against, reviewed, quashed, set aside
or called in question in any court on any ground; and
(c) is not subject to mandamus, prohibition, certiorari or injunction, or
the making of a declaratory or other order, in any court on any
ground;
unless subsection (2) applies to the order or decision.
(2) This subsection applies to an order for a protected action ballot, or
to an order or decision of the Commission in connection with the order,
if:
(a) in proceedings relating to the order or decision, as the case
requires, a person claims that another person or persons:
(i) contravened this Division, or an order of the Commission under this
Division, if the contravention is not merely a technical breach; or
(ii) misled the Commission (whether by a false statement or by an
omission) in such a way as to affect the order or decision; and
(b) the court is satisfied that there are reasonable grounds for the
claim.
(1) If a protected action ballot has been conducted, or has purportedly
been conducted:
(a) the declaration of the results of the ballot is final and conclusive;
and
(b) the declaration of the results of the ballot must not be quashed or
set aside by any court on any ground; and
(c) the conduct of the ballot, and the declaration of the results of the
ballot, must not be challenged, appealed against, reviewed or called in
question, as applicable, in any court on any ground; and
(d) the conduct of the ballot, and the declaration of the results of the
ballot, are not subject to mandamus, prohibition, certiorari or injunction, or
the making of a declaratory or other order, as applicable, in any court
on any ground;
unless subsection (2) applies to the conduct or declaration.
(2) This subsection applies to the conduct of a protected action ballot,
and to the declaration of the results of a ballot, if:
(a) in proceedings relating to the conduct or declaration, as the case
requires, a person claims that another person or persons:
(i) contravened this Division, or an order of the Commission under this
Division, if the contravention is not merely a technical breach; or
(ii) acted fraudulently in relation to the conduct or declaration;
or
(iii) acted in such a way as to cause an irregularity in relation to the
conduct or declaration, being an irregularity that affected the outcome of the
ballot; and
(b) the court is satisfied that there are reasonable grounds for the
claim.
(3) In this section:
conduct, in relation to a protected action ballot, includes,
but is not limited to, the compilation of the roll of voters for the
ballot.
irregularity, in relation to the conduct or declaration of a
protected action ballot, includes an act or omission by means of
which:
(a) the full and free recording of votes by all persons entitled to record
votes and by no other persons; or
(b) a correct ascertainment or declaration of the results of the
voting;
is, or is attempted to be, prevented or hindered.
Nothing in section 170NBGBA or 170NBGBB is to be taken to prevent a
penalty being imposed upon a person for a contravention of this Act.
If an authorised 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 applicants’
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 powers and duties of authorised independent advisers;
(e) the manner in which ballot results are to be published under
section 170NBDE.
Note: Other regulation-making powers are included in
section 359.
26 After paragraph 170ND(d)
Insert:
(da) section 170NBCQ;
(db) section 170NBDCA;
27 At the end of
section 170NF
Add:
(8) An application for an order under subsection (1) that relates to
a contravention of section 170NBCQ or 170NBDCA 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.
28 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.
29 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.
30 Section 307
Repeal the section, substitute:
(1) 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: 10 penalty units.
(2) For the purposes of an offence against subsection (1), strict
liability applies to the physical element, that the application is made under
Division 8A of Part VIB.
Note: For strict liability, see
section 6.1 of Criminal Code.
(1) 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: 10 penalty units.
(2) For the purposes of an offence against subsection (1), strict
liability applies to the physical element, that the application is made under
Division 8A of Part VIB.
Note: For strict liability, see
section 6.1 of Criminal Code.
31 After section 314
Insert:
A person must not contravene section 170NBGC.
Penalty: 5 penalty units or imprisonment for 6 months, or both.
32 Paragraph 317(5)(a)
Omit “or 136”.
33 Paragraph 317(5)(b)
After “Division 7”, insert “or 7A”.
34 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.
35 Application of
amendments
(1) The amendments made by this Schedule apply in relation to industrial
action taken on or after the 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 of that Act as in
force immediately before the commencing day in relation to the action have been
met before the commencing day; and
(c) the action is taken within 14 days after the commencing day.
(3) In this item:
commencing day means the day on which this item
commences.
36 Saving
(1) Despite item 35, if:
(a) an order made under subsection 135(2) or (2B) of the Workplace
Relations Act 1996 is in force immediately before the commencing day;
and
(b) the results of the ballot taken, or to be taken, pursuant to the order
are not known before the commencing day;
then:
(c) the order continues to have effect on and after the 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 of that Act as in force immediately before the
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 of that Act as in force immediately after the
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.
1 At the end of
section 170MWB
Add:
(8) In an order under subsection (1), the Commission may, if it is
satisfied, in relation to any industrial action that might be taken (by virtue
of section 170MWE) after the end of the period of suspension, that there
are exceptional circumstances justifying the period of written notice required
by subsection 170MWE(3) being longer than 3 days, specify a longer period, of up
to 7 days.
Note: Section 170MWB of the Workplace Relations Act
1996 is inserted by item 1 of Schedule 2 to the Workplace
Relations Amendment (Genuine Bargaining) Act 2002.
2 Paragraph 170MWE(1)(a)
After “170MW(1)”, insert “or 170MWB(1)”.
3 Paragraph 170MWE(3A)(b)
After “170MW”, insert “or 170MWB”.
4 Subsection 170MWE(3A)
(note)
After “170MW(11)”, insert “or
170MWB(8)”.