Protected action ballot orders — section 443 of the Fair Work Act
How the Fair Work Commission grants protected action ballot orders under section 443 of the Fair Work Act 2009, and the requirements for industrial action to attract immunity.
What a PABO is
A protected action ballot order (PABO) is an order made by the Fair Work Commission under section 443 of the Fair Work Act 2009 (Cth). It is a formal process that allows employees to vote on whether or not they want to take industrial action.
The purpose of a PABO is to authorise a secret ballot of employees. This ballot determines whether they wish to engage in protected industrial action.
Industrial action is only considered ‘protected industrial action’ if a PABO has been granted and the action taken complies with the requirements of that order. This protection attracts statutory immunity from common law claims under section 415.
Who can apply and the requirements of section 443
Applications for a protected action ballot order (PABO) can be made by either a bargaining representative for a proposed enterprise agreement, or by a group of employees who will be covered by the proposed agreement.
The Fair Work Commission must be satisfied that the applicant has been, and is, genuinely trying to reach an agreement before a PABO will be granted.
From 26 February 2024, applicants must also comply with new requirements. Specifically, an applicant must give written notification to each employer that will be covered by the proposed agreement at least 5 working days before applying for a PABO (section 437(2A)). This is one of several reforms introduced by the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024.
Ballot threshold and timing
The ballot result must satisfy a ‘double majority’ requirement. This means a majority of votes must be in favour of the action, and at least 50% of eligible employees must participate in the ballot.
Employers must receive notice of intended industrial action at least 3 working days before the action is scheduled to begin. The Fair Work Commission has the power to extend this notice period to a maximum of 7 working days, depending on the specific circumstances.
Following the declaration of the ballot results, any authorised industrial action must commence within 30 days. If action does not occur within this timeframe, the authorisation to take protected action expires.
When protected action is suspended or terminated
Protected industrial action can be suspended or terminated by the Commission. This occurs when the action is causing significant economic harm to a party, threatening life or property, or causing significant damage to the Australian economy. These powers are exercised under sections 423–426 of the Fair Work Act. Modern awards system — Australia
When protected action is suspended or terminated, the statutory immunity previously afforded to employees engaging in that action ceases. This means employees are no longer protected from potential consequences arising from their participation in the industrial action.
Following the Closing Loopholes No. 1 reforms, the Commission also has the power to make orders for compulsory arbitration of the bargaining dispute under section 266 (intractable bargaining workplace determinations). Employers may be entitled to refuse to pay employees who engage in protected industrial action under sections 470–476.
Frequently asked
Can a union apply for a PABO before bargaining starts?
No. The Commission must be satisfied that the applicant has been, and is, genuinely trying to reach an agreement at the time of the application — pre-bargaining applications generally fail.
Is the protected action ballot conducted by the FWC?
The Commission appoints a protected action ballot agent (typically the Australian Electoral Commission or an approved private agent) to conduct the ballot. The employer typically pays half the ballot costs.