Under the Fair Work Act 2009 (Cth) (the “FW Act”), to be lawful, proposed protected industrial action must first be authorised by the employees taking the action in a “protected industrial action ballot”.

A protected industrial action ballot can only be ordered by the Fair Work Commission (“FWC”) in a “Protected Action Ballot Order” (“PABO”). A bargaining representative can seek a PABO, and the FWC must make a PABO if the application has been made in accordance with the FW Act, and the applicant is “genuinely trying to reach an agreement” in associated negotiations for an enterprise agreement.

When making a PABO, the FWC must specify a closing date for the ballot that will enable the protected action ballot to be conducted as expeditiously as possible, and the ballot must be conducted by an approved ballot agent.

On 6 June 2023, certain changes to the bargaining provisions of the FW Act effected by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 took effect. One change requires the FWC to make an order directing bargaining representatives for an enterprise agreement to attend a conciliation conference if it has made a PABO. The conference must take place prior to the closing date for the relevant protected action ballot, and compliance with FWC orders in this respect is a pre-requisite for any industrial action that is subsequently taken to be protected.

The inclusion of the new conciliation conference requirement has created tension between the obligation on the FWC to specify a closing date that will enable the conduct of the ballot as expeditiously as possible, and the need to allow time for the FWC to order and conduct a conciliation conference. This was highlighted in a recent Fair Work Commission Full Bench decision, CEPU v Nilsen [2023] FWCFB 134.

The CEPU applied to the FWC for a PABO. In its application, the CEPU sought a closing date for the ballot of six days after the commencement of the ballot. The application was not opposed by the employer, and the employer raised no objection to the proposed ballot timetable. The FWC made the PABO order, however the ballot closing date was set at ten days, rather than the six days requested by the CEPU.

The CEPU sought and was granted permission to appeal the PABO to a Full Bench of the FWC. The CEPU argued that the Commissioner at first instance had considered an impermissible matter in making the PABO, namely the practicalities associated with holding a conciliation conference prior to the closing date for the ballot. The CEPU argued that in setting a date for a ballot, the FWC could only consider how the ballot could be conducted as expeditiously as possible in accordance with the new provision of the legislation, and not consider the practicalities of the conciliation conference requirement. The CEPU also argued it was denied procedural fairness as it had not been provided with the opportunity to make submissions on an extended ballot closing date.

The Full Bench rejected both arguments and quashed the appeal.

In respect of the ballot closing date, the Full Bench noted that the FWC is not required by the FW Act to seek the views of the bargaining representative in respect of a closing date for the ballot, and any views expressed do not bind the Commission. While the FWC must enable the conduct of the ballot to be as expeditious as possible, the new requirement to conduct a conciliation conference was directly relevant to that consideration. The Full Bench found that such an approach was directly in keeping with Parliament’s intention that a conference would be held and would involve a meaningful attempt to de-escalate potential disputes.

In respect of the procedural fairness point, the Full Bench pointed to correspondence between the CEPU and the FWC, and the content of the relevant PABO forms, which it argued clearly established that the FWC could set a closing date that differed from that requested by the bargaining representative. On this point, the Full Bench observed that “the Commission is entitled to proceed from the basis that an experienced industrial party will have read the requisite Commission forms when making an application, together with all resulting correspondence from the Commission”.

This decision of the FWC reflects that the FWC is taking the new conciliation conference obligation in the protected industrial action provisions with due seriousness and is seeking to use the provisions to “deploy the range of dispute resolution techniques to assist in reaching agreement or narrowing issues”. However, this does not mean that employers have carte blanche to seek substantially longer balloting periods as part of the conciliation requirement. In the later case of CFMEU v Cruise Whitsundays Pty Ltd [2023] FWC 1952 an employer sought to more than double the requested balloting period from ten calendar days to 20 working days to facilitate “meaningful” conciliation. This was rejected by the FWC, with a ballot period of 12 working days ordered.

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