FWC Sets Higher Bar for Unapproved Ballot Agents, Signalling Future Changes

The Fair Work Commission (FWC) has recently highlighted the requirements for approving unapproved ballot agents under new workplace laws. Deputy President Hampton – practice leader for enterprise bargaining – recently handed down a decision on an application by the AMWU which sheds light on the implications of the recent changes and the future outlook for protected action ballot agents (PABAs).

Understanding the Legislative Changes

The FWC’s decision applies recent changes contained in the Secure Jobs Better Pay reforms that recently came into effect. These changes significantly impact the appointment of PABAs, specifically the approval of agents responsible for conducting protected action ballots. Previously, the Australian Electoral Commission (AEC) was the only approved PABA recognised by the FWC.

Implications of the Application and “Exceptional Circumstances”

The AMWU proposed conducting the ballot through Democratic Outcomes Pty Ltd T/A CiVS, citing “exceptional circumstances” under section 444(1D)(a) of the Fair Work Act. However, the term “exceptional circumstances” had not been previously considered in this context.

Deputy President Hampton assessed the circumstances, considering whether they were unusual, uncommon, or out of the ordinary. While he acknowledged that the recent amendments to the protected action ballot agent provisions could be seen as exceptional due to their recency and the introduction of eligible ballot agents, he stated that the absence of other eligible agents alone did not constitute exceptional circumstances.

Evaluation of CiVS as a Ballot Agent

Deputy President Hampton evaluated CiVS’s suitability based on the statutory requirements. The statutory declaration from CiVS’s managing director, Mike Michael, highlighted their experience, qualifications, and adherence to regulatory obligations. Considering CiVS’s positive track record, extensive ballot and professional experience, and absence of criminal convictions, Deputy President Hampton found CiVS to be a fit and proper entity to conduct the protected action ballot.

Implications and the Way Forward

The decision sets a higher bar for approving unapproved ballot agents in the future. While the recent legislative changes allowed for a broader choice of eligible agents, the FWC’s decision suggests that future applications will face more scrutiny.

Additionally, the decision emphasises the importance of fair and transparent processes, ensuring that all parties involved have the opportunity to engage in meaningful negotiations. The compulsory conciliation conference, mandated under section 448A of the Fair Work Act, provides a platform for bargaining representatives to discuss and address relevant issues during the ballot period.

In conclusion, the FWC’s decision regarding the AMWU’s application reflects the evolving landscape of protected action ballots and the manner in which ballot agents attain authorisation under the legislation. The higher bar set for future applications indicates a more stringent approach by the FWC.

Stakeholders should closely monitor legislative developments and their implications for protected action ballots. Understanding these changes is crucial for navigating industrial relations and ensuring compliance with evolving workplace laws.

Key takeaways:

• The FWC’s decision signals that the bar for approving unapproved ballot agents will be higher in the future, indicating increased scrutiny and stricter requirements.
• The recent legislative changes have expanded the choice of eligible ballot agents, but the absence of such agents beyond the AEC does not automatically qualify as exceptional circumstances.
• The compulsory conciliation conference mandated by the FWC during the ballot period provides an opportunity for meaningful negotiations and ensures a fair and transparent process for all parties involved.
• There are risks associated with the use of a PABA which is not authorised, especially where there is potential uncertainty as to whether they meet the legislative and regulatory requirements.