The Closing Loopholes amendments to the Fair Work Act 2009 have made it easier to obtain a Protected Action Ballot Order where the negotiating parties have not reached agreement.

Employers with active unions need to be aware of the changes to protected action ballots for negotiating enterprise agreements.

Under the previous Fair Work Act (2009) all Bargaining Representatives had to attend the Fair Work Commission hearings where Protected Action Ballot Orders were being sought. Where they did not any subsequent action was likely to be unprotected action.

The Closing Loopholes Legislation 2023 has amended the Act requiring the Bargaining Representative who initiated the application for the Order to attend the conference for subsequent industrial action to be protected.

The amendments also clarify that an employer organising or engaging in employer response action, and their bargaining representatives covered by the Protected Action Ballot Orders, must attend the conciliation conference for subsequent employer response action to be protected.

The Commission may make an Order which will include:

• The name of each applicant for the Order
• The group of employees who will take part
• The questions that will be on the ballot
• The date the ballot closes.

The Order will also direct the parties to attend a compulsory conciliation conference.

Thereafter the ballot may take place at the workplace under a number of conditions.

Protected industrial action can take place if at least 50% of employees voted – AND more than 50% of those who voted approve the taking of industrial action.

Once the result is declared the industrial action can take place in the following 30 days unless an extension application is made and granted.

These changes are effective from 6 June 2023.

Overall, the aim of negotiations is to reach a conclusion without either party resorting to protected industrial action via such an Order. More often than not how you prepare for and control the negotiations will determine their success.

Hunter Employee Relations is able to assist employers with the negotiation or replacement of their Enterprise Agreement. Give me a call anytime to talk it through.

Kind Regards

Michael Schmidt

M 0438 129 728

[email protected]

www.hunteremployeerelations.com.au

Industrial Relations - Employment Law - Workplace Performance