Protected industrial action ballots: An empirical view

Abstract

Workplace relations in Australia, including requirements relating to the use of industrial action in the context of enterprise bargaining, are governed by the Fair Work Act 2009 (Cth) (FW Act). Legally protected industrial action by employees and their bargaining representatives can lawfully be taken only in the context of, and is conditional upon, approval through a secret ballot of the employees to whom the proposed agreement is to apply. Conducting such a ballot is itself conditional upon first obtaining a protected action ballot order (PABO) from the Fair Work Commission (FWC). Whilst there is a relatively large body of published industrial relations research exploring both the frequency, and the impact, of strike action, there is significantly less published material on the regulation of decisions relating to industrial action by workers and their trade unions. This paper provides a preliminary report on a research project which is intended to help fill this gap in the literature. Drawing on data resulting from an analysis of every PABO application made to the FWC during the reference period, the article describes the PABO process in practice. This, in turn, facilitates understanding of the regulatory contribution made by the provisions and raises significant questions over whether the administrative burden is justified by the outcomes achieved.