Fair Work Commission Amendment (Applications for Protected Action Ballot Orders) Rules 2016

Administered by Department of Employment, Skills, Small and Family Business

Legislation au F2016L02034 Rules Not in force Legislative Instrument

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Fair Work Commission Amendment (Applications for Protected Action Ballot Orders) Rules 2016

EXPLANATORY STATEMENT

 

(issued by the authority of the President of the Fair Work Commission)

 

Authority

Section 609 of the Fair Work Act 2009 (the Act) authorises the making of procedural rules of the Fair Work Commission (Commission).

Under section 609 of the Act, after consulting with the other Commission Members, the President of the Commission may, by legislative instrument, make procedural rules in relation to:

(a) the practice and procedure to be followed by the Commission; or

(b) the conduct of business in relation to matters allowed or required to be dealt with by the Commission.

Without limiting (a) and (b) above, the procedural rules may provide for the following:

(a) the requirements for making an application to the Commission;

(b) the circumstances in which a lawyer or paid agent may make an application or submission to the Commission on behalf of a person who is entitled to make the application or submission;

(c) the form and manner in which, and the time within which, submissions may or must be made to the Commission;

(d) the procedural requirements for making decisions of the Commission;

(e) the form and manner in which the Commission gives directions and notifies persons of things;

(ea) the requirements for making a notification to the Commission;

(f) who is notified by the Commission of things;

(g) the manner in which conferences are to be conducted in relation to applications made under Part 3‑1, 3‑2 or Part 6‑4 (which deal with general protections, unfair dismissal and unlawful termination).

Under subsection 33(3) of the Acts Interpretation Act 1901 as in force on 25 June 2009, where an Act confers a power to make, grant or issue any instrument (including rules, regulations or by-laws) the power shall, unless the contrary intention appears, be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.

Consultation on the Amendment Rule

As required by section 609 of the Act, the President consulted with the other Members of the Commission concerning the Fair Work Commission Amendment (Applications for Protected Action Ballot Orders) Rules 2016 (the Amendment Rule). Pursuant to section 17 of the Legislation Act 2003, the President also gave persons who were likely to be affected by the Amendment Rule an opportunity to comment.

On 9 December 2016, the President provided the Members with a copy of a draft of the Amendment Rule and sought their comments by 16 December 2016. On 12 December 2016, the President published a draft of the Amendment Rule on the Commission’s website and advised clients who subscribe to a general announcements subscription service and invited interested persons to provide comments by 16 December 2016.

The President is satisfied that the consultation undertaken was appropriate, having drawn upon the knowledge of persons with expertise in fields that are relevant to the Amendment Rule and having ensured that persons who were likely to be affected by the Amendment Rule had an opportunity to comment.

Regulatory Impact Statement

As is required by the Australian Government’s best practice regulation requirements, the Office of Best Practice Regulation was consulted on 20 December 2016 regarding the requirement for a regulatory impact statement to be prepared in relation to the Amendment Rule. The Office of Best Practice Regulation advised the Commission that a regulatory impact statement was not required because the Amendment Rule is considered to have a minor regulatory impact on business, community organisations or individuals (reference number OBPR ID 21683).

Purpose

Section 437 of the Act sets out who may apply to the Commission for a protected action ballot order and the matters to be specified in an application. Section 443 states when the Commission must make a protected action ballot order. Section 441 provides that an application for a protected action ballot order must be determined within 2 days after it is made. Rule 31 of the Fair Work Commission Rules 2013 provides for the documents that must accompany a protected action ballot order application.  

The President has approved amendments to the current protected action ballot order application form and approved a new statutory declaration form pursuant to rule 8. The provision of a statutory declaration to be filed by the applicant in support of a protected action ballot order application will enable the Commission to place greater reliance on the information provided in determining uncontested applications and allow matters to be determined largely ‘on the papers’ rather than holding a formal hearing to determine the matter. The new process will assist the Commission in determining applications as efficiently as possible within the required legislative timeframe and formalise the practice already adopted by some Commission Members.

Rule 31 has been amended to provide that an application under section 437 must be accompanied by a draft order and a statutory declaration. The amended Rule 31 states that the applicant must set out the basis on which the Commission can be satisfied that the requirements of section 443(1)(b) have been met, being that the Commission is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted. A second note has also been inserted under subrule 31(1) which requires that the statutory declaration be in the approved form, as is with the requirements of subrule 8(2).

General

Rule 1 states that the name of the amending instrument is the Fair Work Amendment (Applications for Protected Action Ballot Orders) Rules 2016.

Rule 2 provides that the Amendment Rule commences on 1 January 2017.

Rule 3 states that the Amendment Rule is made under the Act.

Rule 4 provides that the Rules are amended as set out in the Schedule 1 to the Amendment Rule.

Schedule 1

Item 1 amends subrule 31(1) to provide that an application under section 437 must be accompanied by a statutory declaration by the applicant setting out the basis on which the Commission can be satisfied that the requirements of paragraph 443(1)(b) have been met, in addition to the draft order. A second note has been inserted under subrule 31(1) requiring that the statutory declaration be in the approved form. Subrule 31(2) has been deleted as rules 13 to 16 make provision for the lodgment documents.

Item 2 inserts the service requirements for the F34B–Statutory Declaration in Support of an Application for a Protected Action Ballot Order.

 

Statement of Compatibility with Human Rights

Prepared in accordance with part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011 (Cth)

 

Fair Work Amendment (Applications for Protected Action Ballot Orders) Rules 2016

This instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth).

Overview of the Legislative Instrument

The Fair Work Amendment (Applications for Protected Action Ballot Orders) Rules 2016 (Amendment Rule) is a procedural rule made by the President of the Fair Work Commission under section 609 of the Fair Work Act 2009. The Amendment Rule provides for practice and procedure that is to be followed by the Fair Work Commission and the conduct of business in relation to matters allowed or required to be dealt with by the Commission.

Human Rights Implications

The Amendment Rule does not engage any of the applicable rights or freedoms.

Conclusion

The Amendment Rule is compatible with human rights as it does not raise any human rights issues.

 

 

 

 

 

 

 

Justice Iain Ross AO
President
Fair Work Commission

Overview

The Fair Work Amendment (Applications for Protected Action Ballot Orders) Rules 2016 were introduced to amend the procedural rules governing applications for protected action ballot orders by the Fair Work Commission. Enacted under section 609 of the Fair Work Act 2009, these rules were designed to address procedural inefficiencies in the handling of such applications, specifically by ensuring that applications are determined within the legislative timeframe of two days. The President of the Fair Work Commission, after consulting with other Commission Members and allowing for public consultation, approved these amendments to formalise existing practices and enhance the efficiency of the Commission's operations. The Amendment Rule, which came into effect on 1 January 2017, requires that applications for a protected action ballot order be accompanied by a statutory declaration, allowing the Commission to rely more heavily on the information provided and potentially reduce the need for formal hearings. This approach aims to streamline the decision-making process while maintaining the integrity and fairness of the Commission's operations.

Scope and Application

The Fair Work Amendment (Applications for Protected Action Ballot Orders) Rules 2016, promulgated by the Fair Work Commission under the authority granted by section 609 of the Fair Work Act 2009, pertain to procedural rules governing the practice and procedure to be followed by the Fair Work Commission. These rules specifically apply to the conduct of business in relation to matters that must be dealt with by the Commission, including applications for protected action ballot orders. The Amendment Rule mandates that an application for a protected action ballot order must be accompanied by a statutory declaration, thereby enhancing the reliability of the information provided to the Commission and facilitating efficient determination of uncontested applications. The Amendment Rule applies nationally across Australia, given the federal jurisdiction of the Fair Work Commission. There are no exclusions, exemptions, or thresholds specified within the text of the Amendment Rule, though the Fair Work Commission may extend or restrict the application of these rules through subordinate instruments. The President of the Commission ensured appropriate consultation with other Commission Members and stakeholders likely to be affected by the Amendment Rule, and the Office of Best Practice Regulation determined that a regulatory impact statement was not required due to the minor regulatory impact of these amendments.

Key Provisions

The Fair Work Amendment (Applications for Protected Action Ballot Orders) Rules 2016 (Amendment Rule) primarily revises the procedural requirements for making an application to the Fair Work Commission (FWC) for a protected action ballot order. Under section 437 of the Fair Work Act 2009 (Act), eligible applicants can apply to the FWC for an order that requires employees to vote on whether to engage in protected industrial action. As per the Amendment Rule, Rule 31 mandates that such an application must now be accompanied by a statutory declaration from the applicant, outlining the basis on which the FWC can be satisfied that the applicants have been genuinely trying to reach an agreement with their employer (subsection 31(1)). This statutory declaration must be in the approved form, as specified in Rule 8 (subsection 31(1)(note 2)). Additionally, the Rule requires the applicant to provide a draft order with the application (subsection 31(1)(note 1)). The Amendment Rule imposes several obligations on the parties involved in the application process for a protected action ballot order. The applicant must ensure that the statutory declaration accompanying the application is truthful and sets out the basis for the FWC's satisfaction regarding the genuine efforts to reach an agreement with the employer. Furthermore, the applicant must provide a draft order with the application. These obligations aim to streamline the application process and enable the FWC to make determinations more efficiently within the legislative timeframe. The Amendment Rule does not explicitly outline specific offences or penalties for non-compliance with its provisions. However, the statutory declaration requirement is significant because providing false information in a statutory declaration can be considered a criminal offence under the Commonwealth Crimes Act 1914. The penalty for making a false statement in a statutory declaration can include imprisonment for up to three years or a fine, or both, depending on the circumstances and jurisdiction. Additionally, any misleading or deceptive conduct related to the application process may be subject to enforcement actions by the FWC, which could include orders for compensation or other remedies. The Fair Work Amendment (Applications for Protected Action Ballot Orders) Rules 2016 formalises the practice already adopted by some FWC Members, which allows for the determination of uncontested applications largely ‘on the papers’ rather than requiring a formal hearing. This new process aims to assist the FWC in determining applications more efficiently while ensuring that the Commission can place greater reliance on the information provided in the statutory declaration. The procedural changes outlined in the Amendment Rule are designed to enhance the effectiveness and efficiency of the application process for protected action ballot orders while maintaining the integrity of the information provided to the FWC.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.