Commonwealth Consolidated Acts

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FAIR WORK ACT 2009 - SECT 437

Application for a protected action ballot order

Who may apply for a protected action ballot order

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

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

                     (a)  a greenfields agreement; or

                     (b)  a multi-enterprise agreement.

          (2A)  Subsection (1) does not apply unless there has been a notification time in relation to the proposed enterprise agreement.

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

Matters to be specified in application

             (3)  The application must specify:

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

                     (b)  the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

             (4)  If the applicant wishes a person other than the Australian Electoral Commission to be the protected action ballot agent for the protected action ballot, the application must specify the name of the person.

Note:          The protected action ballot agent will be the Australian Electoral Commission unless the FWC specifies another person in the protected action ballot order as the protected action ballot agent (see subsection 443(4)).

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

                     (a)  will be covered by the proposed enterprise agreement; and

                     (b)  either:

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

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

Documents to accompany application

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



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