Initiating industrial action

Protected action ballots

Protected action ballots are secret ballots that give employees the chance to vote on whether or not they want to take particular industrial action.

Unless it's taken in response to industrial action by the employer, industrial action taken by employees won't be protected unless it has been authorised by a protected action ballot.

For a protected action ballot to authorise industrial action:

• the action must relate to the questions that formed part of the ballot
• at least 50 per cent of employees eligible to vote in the ballot must do so
• more than 50 per cent of valid votes approve the industrial action
• the action must start within 30 days of the declaration of the results of the ballot (unless this period is extended by Fair Work Australia).

Applying for a protected action ballot order

To hold a protected action ballot, a bargaining representative for an employee who'll be covered by the agreement must apply to Fair Work Australia for a protected action ballot order.

A copy of the application must be given to the employer and the proposed ballot agent (the party that will conduct the ballot - usually the Australian Electoral Commission) within 24 hours of the application.

Who's eligible to vote in a protected action ballot?

Employees who are on the roll of voters can vote in a protected action ballot.

Employees will be included on the roll of voters if:

• they'll be covered by the proposed enterprise agreement to which the ballot relates; and
• on the day the ballot order was made by Fair Work Australia, they were represented by a bargaining representative who applied for the order, and are included in the group of employees specified in the order.

An employee who's covered by an individual agreement (essentially an individual transitional employment agreement (ITEA) or Australian Workplace Agreement (AWA)) is taken to be an employee who'll be covered by the proposed enterprise agreement if:

• the nominal expiry date of their individual agreement has passed, or
• they have made a conditional termination in relation to the agreement.

Giving written notice

Before employees take industrial action, a notice must be given to the employer.

Unless the action is taken in response to industrial action taken by the employer, 3 working days notice of the planned action must be given (unless the protected action ballot order states a longer period).

Before an employer takes industrial action (which can only be in response to employee action), notice must be given to each bargaining representative of an employee who'll be covered by the agreement. The employer must also take all reasonable steps to notify the employees of the action.

In all cases, the notice must specify the nature of the action that will be taken and the day it will start.

Do you work in the building and construction industry?

In addition to the requirements in the Fair Work Act set out here, there is specific legislation that deals with this industry - the Building and Construction Industry Improvement Act 2005.

You need to ensure that any industrial action you take in this industry is not unlawful as defined in that Act. Penalties apply for engaging in that unlawful industrial action.