mandatory secret ballots before employee industrial action

Electronic copy available at: http://ssrn.com/abstract=1227743

Mandatory Secret Ballots before Employee Industrial Action

Assoc. Professor Graeme Orr and Dr Suppiah Murugesan, TC Beirne School of Law

The University of Queensland, TC Beirne School of Law Legal Studies Research Paper Series

This paper can be downloaded without charge from the

Social Science Research Network electronic library at: http://ssrn.com/1227743

Research Paper No. 08-08

2007


Mandatory Secret Ballots before EmployeeIndustrial Action

Graeme Orr and Suppiah Murugesan*

In late 2005, the conservative Federal Government mandated that any‘protected’ industrial action must be approved by a prior secret ballot.

This article examines the heritage and specifics of this legal regime, and theemerging case law on it. Competing rationales for the law are considered,particularly individualist notions of democracy and the repression of strikeaction. These rationales are considered in the light of the law’s interferencewith freedom of association.

Unlike previous efforts to mandate voting procedures in union affairs, thisregime was not introduced at a time of industrial unrest or economicdownturn, but at a time of record low industrial action. Its chief practical effectis to give employers additional notice of likely industrial action, and toenhance enforcement of a one-sided, quasi good-faith bargaining regime onunions. Outside that, its purpose is largely symbolic. It reflects a view thatindustrial action should at best be tolerated as a last-resort in a bargainingimpasse, a view that has achieved bi-partisan status with Labor’sendorsement of the regime.

Introduction

It is commonly observed that Australia never respected a legal right to strikeuntil 1993. In that year, an immunity for certain ‘protected’ action in advanceof enterprise bargaining demands was legislated. Up until that time, the focuswas on compulsory notification of disputes, with a view to their compromiseand settlement via conciliation and arbitration. Justice Higgins famouslydescribed this as a province for ‘law and order’ designed to ‘make the boundsof industrial chaos narrower’ and as a substitute ‘for the rude and barbarousprocesses of strike and lockout’.1 While in legal form the ability to takeindustrial action was haunted by various legal prohibitions, in reality workershad significant freedom to take such action, at least until the action, or theirbargaining position, alienated the commissioner concerned. The mereexistence of awards did not logically entail the complete outlawing of strikes:this was embodied in the fact that awards, generally, set industry minima overwhich bargaining and hence industrial action often still occurred.2

Since 1993, both major parties have accepted the notion of a ‘right tostrike’, albeit a highly circumscribed one. The rationale is to permit some useof pressure to advance bargaining claims and perhaps resolve bargainingdeadlocks, in a system that all but excludes the Australian Industrial RelationsCommission (AIRC), except as a ‘policeman’ of unprotected action. Industrial

* Law School, University of Queensland. We thank Sian Reece for her excellent researchassistance. The case law is as available to the end of July 2007.

1 H B Higgins, ‘A New Province for Law and Order: Industrial Peace through MinimumWage and Arbitration’ (1915-1916) 29 Harvard LR 13 at 13–14.

2 E I Sykes, Strike Law in Australia, Law Book Co, Sydney, 1960, pp 188–9.

272

action is thus not a social, let alone an individual,3 right in Australia. It isunlawful during the life of an agreement, and for all purposes exceptfollowing genuine bargaining, during an enterprise bargaining period, toadvance claims that would be permissible in a collective agreement. In shortthere is a limited immunity for ‘protected action’, which is circumscribed bya variety of technical pre-conditions, such as the giving of three working days’notice.4

Into this mix, in late 2005 the Howard conservative government introducedmandatory secret ballots as a pre-condition for protected industrial action. Thefederal law now covers most industrial action in Australia, since almost allcorporate employment is covered, and collective bargaining is rare inunincorporated organisations. Hence, for practical purposes, only strikes in thestate public services are not covered by the mandate.

Prior to 2005, there was no legislation impinging on how unions andworkers decided whether to take industrial action, except the anti-wildcatprovision requiring union action to be duly ‘authorised’ by the unionconcerned. Secret ballots however, have a heritage. There was formerly apower for the AIRC to order ad hoc secret ballots; a power that was little used.In the wake of one bout of legislative tinkering with these voluntary ballotprovisions, MacCallum labelled them ‘old wine in new bottles’.5 To continuehis alcoholic metaphor, we could say the new law is a strongly fortified winefrom an old vintage. It is a drink with a bitter taste for unions, since mandatorysecret ballots add cost and delay to bargaining action, and provide anadditional avenue for employers to intervene and object. Yet there is noevidence that ballots as such lead to a lessening of the incidence of employeeindustrial action, which is at record lows.

The purpose of this article is three-fold. In the next section we describe thelegislation, both in black-letter terms and in the context of its legislativehistory. While we don’t attempt international comparisons, key differencesbetween the Australian regime and the ballot provisions in the UnitedKingdom and Canada are footnoted.6 Our second purpose is to consider thephilosophical and pragmatic arguments for and against mandating secretballots. Then, in the final section of the article, we describe and assess theemerging case law.

Ultimately, it will be seen that secret ballot laws are a method of hemming

3 It is not an individual right, in the sense of a civil right guaranteed to individuals. Nor, since2005, has there been protection for employees taking action while bargaining individualisedAustralian Workplace Agreements (or for that matter common law contracts).

4 For detail, see Workplace Relations Act 1996 (Cth) Pts 8, 9. For explanation see G McCarry,‘Industrial Action under the Workplace Relations Act 1996 (Cth)’ (1997) 10 AJLL 133;B Creighton and A Stewart, Labour Law, 4th ed, Federation Press, Sydney, 2005, pp 221–8and Ch 18.

5 R MacCallum, ‘Secret Ballots and the Industrial Relations Bureau: Old Wine in NewBottles’ in G W Ford et al (Eds), Australian Labour Relations: Readings, 3rd ed, Macmillan,Melbourne, 1980, p 368.

6 It is noteworthy that no such provision applies under the federal law governing the right toorganise in most private sector employment in the United States. This is so even thoughneither the Wagner Act, nor the Landrum-Griffin Act, is shy of interfering with unionfreedom of association by mandating secret ballots for purposes of union recognition,fee-raising or election of officials.

Mandatory Secret Ballots before Employee Industrial Action 273

in, if not restraining, strike action. In theory, they advance the liberty ofindividual union members, but at cost to the principles of collective freedomof association and solidarity. Since both major parties have now embracedmandatory secret ballots, the debate will in future move to pragmatic issues,such as measuring the law’s effectiveness versus its inefficiencies, andstreamlining its complexities.

The WorkChoices Provisions in International Context

Legislative history of secret ballots in Australia

Proposals for secret ballots prior to industrial action in Australia are not new.Indeed ad hoc secret ballots were long available under federal law, albeitrarely invoked. In 1928, under the Bruce-Page Government, the equivalent ofthe AIRC was first empowered to order a secret ballot of union members onany matter, if the union was party to a federal industrial dispute or industrialaction existed or was threatened.7 Employers and employer associations couldseek such a ballot during industrial action.8 In 1981, the Fraser Governmentadded a procedure for members of a union to apply to the commission for asecret ballot if they were requested or directed to take industrial action.9 Indoing so it echoed a short-lived procedure which lasted from 1928–1930.10 Incontrast to the complexity under WorkChoices, the old ballot regime wascontained in a handful of sections.11

Secret ballots for union elections have an even longer legislative heritage.They were first made available, at member-instigation, between 1928 and1929, and later mandated in federal union rules by the Menzies Governmentin 1951.12 Just two years earlier, a statutory regime introduced by the ChifleyGovernment had provided for inquiries into irregularities in ballots.

What is noticeable about these forerunners is that the intervention into theautonomy of union decision-making processes was in each case motivated orjustified in circumstances of economic upheaval (depression or stagflation) or

7 Conciliation and Arbitration Act 1904 (Cth) s 56D (from 1928), later s 45 (from 1972);Industrial Relations Act 1988 (Cth) s 135; Workplace Relations Act 1996 (Cth) s 135 (until2005). For case-law see R MacCallum, ‘The Mystique of Secret Ballots: Labour RelationsProgress v Industrial Anarchy’ (1975-76) 2 Monash Uni LR 166 at 171–4; C P Mills and G HSorrell, Federal Industrial Law, 5th ed, Butterworths, Sydney, 1975, paras [350]–[351].

8 Eg, FPEA v PGEU (1976) 180 CAR 713. Note in this case the question was indirectly putin the form ‘Are you prepared to work normally in accordance’ with the award, rather than‘Are you in favour of’ particular work bans. See also Re Secret Ballot of the Australian

Timber Workers’ Union (1929) 27 CAR 839, where a ballot was granted, on the applicationof some members, in the form ‘Are you prepared to work in accordance with the award?’Although there was some evidence of vote-tampering, the ballot was overwhelminglydefeated, ie, the industrial action endorsed.

9 Conciliation and Arbitration Amendment Act 1981, which became s 136 of both theIndustrial Relations Act 1988 (Cth) and the pre-‘WorkChoices’ Workplace Relations Act1996 (Cth).

10 Commonwealth Conciliation and Arbitration Act 1928 (Cth) inserting ss 56A and 55B intothe 1904 Act. These were repealed by the Commonwealth Conciliation and Arbitration Act1930 (Cth).

11 Eg, just three sections in the 1972 format, and six sections in the 1988 format.12 Joint Standing Committee on Electoral Matters, Industrial Elections, Parliament of

Australia, Canberra, 1997, paras [1.18]–[1.30].

274 (2007) 20 Australian Journal of Labour Law

intensified industrial disputation associated with such upheaval, or in theimmediate post-war era, arising from conflict between communists, ‘groupers’and moderates in the labour movement. None of these circumstances has beenpresent during the Howard administration.

Writing in the mid 1970s, Ron McCallum noted a ‘mystique’ about secretballots, which he felt was misplaced. Secret ballot provisions had beenenacted as:

a governmental reaction against the surfacing of real or imaginary union power. . . .[S]trike ballots have been a failure . . . owing to a false assumption on the part of thelegislature that the union leaders have been manipulating the rank-and-file.13

MacCallum based this conclusion partly on observations of overseasexperience. He also inferred, from the very few ballot applications that hadbeen entertained by the commission, that the commissioners felt that therank-and-file generally accepted the advice of, and were no more moderatethan, their leadership.14 Alternative inferences are that employers wereuninterested in risking inflaming a dispute by seeking a ballot, and that thecommission believed a ballot would add little to their ultimate role ofconciliating and arbitrating a compromise to the overarching dispute.

Proposals for mandatory secret ballots are more recent in origin, and owemuch to their adoption in 1984 by the Thatcher Government in the UnitedKingdom.15 In the original Green Paper recommending mandatory ballots, thethen Conservative government emphasised not just the democratic argumentsfor them, but an anti-strike rationale that ‘[s]trikes damage economicperformance, reduce living standards and destroy jobs . . . Society has theright to expect that the strike weapon will be used sparingly, responsibly anddemocratically’.16 Canadian federal law adopted mandatory ballots in 1999,pursuant to a 1995 recommendation of the Sims Report into labour law. Incontrast to the Thatcherite rationale, that report stressed their value to both theinternal democratic connection between union and member, and thelegitimacy of the union’s position to the outside world.17

In Australia, the Kennett Government in Victoria first enacted such laws aspart of its short-lived Employee Relations Act 1992.18 Federal proposalssuffused the Howard Government’s ‘second wave’ industrial relations

13 MacCallum, above n 7, at 177–8.14 Ibid, at 174.15 See now the Trade Union and Labour Relations (Consolidation) Act 1992 (UK) ss 226–234,

the Code of Practice: Industrial Action Ballots and Notice to Employers, Department ofTrade and Industry, 2005, and H Collins et al, Labour Law: Text and Materials, 2nd ed, HartPublishing, Oxford, 2005, Ch 9.5.

16 Democracy in Trade Unions, 1983, Cmnd 8778, at [56], in H Collins et al, Labour Law: Text

and Materials, 2nd ed, Hart Publishing, Oxford, 2005, pp 902–3.17 L Vaillancourt, ‘Amendments to the Canada Labour Code: Are Replacement Workers an

Endangered Species?’ (2000) 45 McGill LJ 757 at 776–7. The federal Canadian provisionsmirror similar provisions in provincial labour codes. The regime is formally established byCanada Labour Code s 87.3, but the detail is left to regulations made by the IndustrialRelations Board.

18 Employee Relations Act 1992 (Vic) s 36(1)(g), Pt 4 Div 4 and Sch 2. Remarkably, theregime was established in just two sections, with the details left to 40 guidelines in a Codeof Practice.


agenda,19 contained in the ill-titled and Senate-stymied Workplace Relations

(More Jobs, Better Pay) Bill.20 Specific legislation for secret ballots was

rejected by the Senate a further three times.21

In putting the Howard Government’s case, then Minister Reith claimed that

secret ballots ‘would enhance freedom of choice, minimise unnecessary

industrial action and strengthen the accountability and responsiveness ofunions to their members’.22 In opposing mandatory secret ballots in 2000, theOpposition Shadow Minister claimed that the law was a heavy-handedmanifestation of an anti-union government.23 The Opposition also reasonedsuch ballots were unnecessary given the historically low levels of industrialconflict and that only nine ballots had been required by the AIRC in thepreceding three financial years.24 (The ‘only’ here is relative: MacCallum hadearlier found just five reported cases in over 50 years.)25 The AustralianDemocrats ultimately agreed with the Opposition, though in line with theirsupport of secret ballots in principle, they proposed that all union rules shouldprovide the option of secret ballots.26

Secret ballots were finally enacted via a compliant government Senatemajority in 2005. The package included other provisions impacting on thefreedom to take industrial action. Chief amongst these were new powers forthe AIRC to suspend bargaining periods and hence suspend protectedindustrial action.27 Remarkably, as well as the AIRC the Minister was givena power to terminate a bargaining period (and move to arbitration), as a lastresort option where industrial action was threatening public safety, welfare ordamage to a significant part of the economy.28

Although the WorkChoices Bill was sent to a (hurried) Senate Committee,the government forbade the committee inquiring into the secret ballotproposals, since their essence had been previously debated. As a result, noparticular evidence or detailed arguments were presented to rationalise them.Such evidence could have been obtained by commissioning a study ofunionists’ experiences of industrial action, although the levels of industrialaction are so low in most industries it may not be easy to find sufficientunionists with relevant recent experience!

19 The first wave being the Workplace Relations Act 1996 (Cth); the third wave the WorkplaceRelations Amendment (Work Choices) Act 2005 (Cth).

20 Workplace Relations Legislation Amendment (More Jobs, Better Pay) Bill 1999 Sch 12.21 Proposals titled Workplace Relations Amendment (Secret Ballots for Protected Action) Bill

were rejected in 2000, 2002 and 2003.22 P Reith MHR, Minister for Employment, Workplace Relations and Small Business,

Parliamentary Debates, House of Representatives, 26 June 2000, p 18244.23 A Bevis MHR, Parliamentary Debates, House of Representatives, 30 August 2000,

pp 19,617–24.24 Ibid, p 19,619; Butterworths, Workplace Relations Australia, looseleaf service,

at para [s 451.30] reports just a single member initiated ballot in 25 years from theirreintroduction in 1981: Re FCA (1982) 3 IR 259.

25 MacCallum, above n 5, p 374.26 Senator A Murray, Parliamentary Debates, Senate, 24 March 2003, pp 9937–40.27 Workplace Relations Act s 432 (‘cooling off’ period), s 433 (if action threatens significant

harm to a non-negotiating party).28 Workplace Relations Act Pt 9 Div 7 (Ministerial power); s 430 (AIRC power).


Legislative detail of the current regime

The provisions, which form Div 4 of Pt 9 of the Workplace Relations Act 1996(Cth), are intricate. They extend over 45 sections, with a further 20 provisionsin the Regulations. As MacCallum observed over 25 years ago, piling legalprovisions upon each other like counterpoint in a musical score is less a recipefor accountability than confusion.29 We will now briefly outline the keyprovisions: later we will reflect on case-law applying them.

The purpose of the regime is stated to be:

to establish a transparent process which allows employees directly concerned tochoose, by means of a fair and democratic secret ballot, whether to authoriseindustrial action supporting or advancing claims by organisations of employees, orby employees.30

Nominally, the regime applies equally to non-union bargaining and unionbargaining. But in practice non-union collective bargaining is rare, andorganised industrial action in such situations rarer still. In practice then, theinitiator of a ballot will be the union/s that initiated the bargaining period.31

A union cannot simply organise the ballot itself: it must apply to the AIRC.32

The application must include the questions to be put, including the nature ofthe proposed action and the application must be authorised.33 It remains aseparate requirement that the industrial action itself is authorised under theunion’s rules and by its committee of management or similar:34 except forimminent safety reasons, such wildcat action has never been protected.

While the AIRC is obliged to ‘act as quickly as is practicable’, dealing withthe application within two days if possible,35 the entire process is notnecessarily expeditious. Hearing an application, compiling the roll andconducting a postal ballot and tallying votes are matters that even if smoothlyrun must take several weeks. Where an employer contests the application frommany angles, eg, raising fine points about the genuineness of negotiations,pattern bargaining, and the specificity of the ballot question, the initialapplication process alone can take many weeks.36 Where the employer appeals

29 MacCallum, above n 5, p 391.30 Workplace Relations Act s 449(1).31 Workplace Relations Act s 451. There is some contention about when, if at all, industrial

action can be initiated involving several unions hoping to enter a single agreement with anemployer: see discussion in AMWU v Carrier Air Conditioning P/L [2007] AIRC 362, andcompare LHMU (WA) v CSBP Ltd [2007] AIRC 469.

32 In contrast, in the United Kingdom the union does not need permission from any tribunal orbureaucrat. Effectively, it is up to the employer in the United Kingdom to take legal actionif a ballot is not organised properly or at all, although since 1988 union members have hadthe formal power to do so: see Collins et al, above n 15, p 903 and Trade Union and LabourRelations (Consolidation) Act 1992 s 62. Similarly in Canada it is up to the body organisingthe action (union, or employer locking-out) to initiate and organise the ballot.

33 Workplace Relations Act s 452.34 Workplace Relations Act s 446.35 Workplace Relations Act s 457.36 NUW v Saint-Gobain Abrasives P/L [2006] AIRC 627 took almost a month from initial

application to ruling; AMWU v Mayfield Engineering P/L t/as Metlabs [2006] AIRC 734took almost two months. Both applications were ultimately successful.


to a Full Bench, the process can take several months.37

A ballot is to be granted only if the commission is satisfied the union hasbeen and remains genuinely trying to reach agreement and is not engaged inpattern bargaining.38 The AIRC has discretion to refuse the application if it isinconsistent with the legislative purpose, or the applicant has ever breached asecret ballot provision or direction.39 Ballot orders must specify the types ofemployees, the voting method, the timetable, the ‘ballot agent’ (ie, the personauthorised to conduct the ballot), and the question/s to be put.40

As a default, a postal ballot is mandated unless another method appears‘more efficient and expeditious’, and an ‘attendance ballot’ (ie, a poll) cannotoccur during working hours.41 Attendance ballots have been granted, notablyat blue-collar sites. Indeed the Australian Electoral Commission (AEC) hasaffirmed that such ballots are more expeditious than postal voting.42 Howevera union still needs to adduce evidence that an attendance ballot is preferablein the circumstances.43 Also, as a default the AEC is to conduct the ballot,unless the AIRC is satisfied that another party is ‘fit and proper’ to conduct afair, secret and expeditious vote. If the union seeks to conduct the ballot itself,a suitable ‘independent adviser’ must be appointed.44

The voting roll must then be compiled, not later than two days from theballot commencing.45 An employee on an Australian Workplace Agreement(AWA) whose nominal expiry date has not passed is ineligible to vote.46 Theidentity of people on the roll is not to be disclosed.47 Thus, in theory, a unionhas to rely on its own membership records to canvass support during theballot. In practice the provisions are a fillip to unions to ensure theirmembership records, including membership by employer, are as accurate aspossible. The employer can also be required to provide a list of relevant

37 Two-and-a-half months in the case of Tyco Australia P/L t/as Wormald v CEPU [2006]AIRC 645. The ballot application was successful at first instance and on appeal. Five monthselapsed in Re Australian Electoral Commission [2007] AIRC 21; [2007] AIRCFB 21, wherethe ballot agent challenged the validity of orders affecting it.

38 See the case-law discussed below.39 Workplace Relations Act s 461.40 Workplace Relations Act s 463(1). See the case-law below as to the specificity needed in the

ballot question.41 Workplace Relations Act s 463(2)–(4). In contrast, all ballots in the United Kingdom are

postal: Trade Union and Labour Relations (Consolidation) Act 1992 s 230(2).42 See, eg, CSBP Ltd v LHMU (2007) 162 IR 81 at [55]. The ballot was scheduled over two

days to better accommodate irregular workers. Vice-President Lawler was influenced by thefact the site had a history of in-person union activities. Similarly see CEPU v CSBP Ltd

[2007] AIRC 133 at [75]. See also CFMEU v Anglo Coal (Dawson Services) P/L [2007]AIRC 159: at the employer’s instigation employees on leave and unable to make theattendance ballot were able to apply for a postal vote.

43 CEPU v Bilfinger Berger Services — Water P/L [2007] AIRC 144.44 Workplace Relations Act ss 480–481. On the appointment of an agent other than the AEC,

see CFMEU v Anglo Coal, above, n 42.45 Workplace Relations Act ss 463(1)(d), 466.46 Workplace Relations Act s 467(2). As to the status of pre-reform AWA employees, and in

particular those whose AWAs have passed their nominal expiry dates, see CFMEU v

Programmed Maintenance Services Ltd [2007] AIRCFB 620. Section 495 preserves theright of an employee to participate in industrial action once their AWA has expired.

47 Workplace Relations Act ss 485–486.


employees to the AEC or ballot agent.48

The employer is automatically a party to the application,49 and hence canmake submissions and seek directions.50 It appears that an employer can evenchallenge a ballot order or a ballot result, however ouster clauses seek toprotect such orders and results except where there is reasonable suspicion theywere tainted by deception, fraud or electoral irregularities.51 The AIRC canmake both general rules and ballot guidelines and give ad hoc directionsfurther regulating the application and ballot procedure.52 Failure to complywith a ballot order or provision risks a substantial civil penalty.53 The unionis technically liable for the entire cost of the ballot although, in practice, 80%will be borne by the Commonwealth.54

A ballot is only successful — ie, attracts legal protection for the industrialaction — if turnout is over 50%, a majority of those vote ‘yes’ and the actioncommences within 30 days of the ballot being declared.55 The minimumturnout rule can be criticised on two grounds. First a ballot with 49% supportof the total membership and no votes against would be lost; yet a line-ballballot with a bare majority turning-out would be won, even though in such acase only 25% of the membership may have supported the action.56 Secondly,it encourages unions to exclude members from voting lists whose currentpostal addresses are not 100% certain. In a significant contrast, the Canadianfederal system does not mandate any minimum turnout, but on the other handall employees in the relevant bargaining unit are balloted, and not just unionmembers.57

If a ballot is successful, industrial action of the type and duration approvedby the ballot will be protected, provided it commences within 30 days of theballot being declared.58 The action need not finish in that time period: thebargaining period provides the time limit for completion of the action.59 (Theaction must of course still meet the usual requirements, eg, that three furtherworking days’ notice are given, and that no unprotected workers are involved.)

48 Workplace Relations Act s 465.49 Workplace Relations Act s 450. By comparison, in the United Kingdom the union must give

the employer seven days notice of the commencement of the ballot. The effect is similar, inthat the employer has advance notice of possible industrial action, time to mount legalinterventions and time to lobby for a ‘no’ vote. Aspects of the employer’s power has provencontroversial in the United Kingdom: B Simpson, ‘Strike Ballots and the Law: Round Six’(2005) 34 Industrial Law Jnl 331.

50 Workplace Relations Act s 458.51 Workplace Relations Act ss 488–489. For specific ballot offences, see s 821.52 Workplace Relations Act ss 124, 452(3), 456, 458, 464.53 Workplace Relations Act s 471.54 Workplace Relations Act ss 482–483. In the United Kingdom, a state fund used to defray the

cost of the ballot, but now this is borne entirely by the union.55 Workplace Relations Act s 479.56 C White, ‘WorkChoices: Removing the Choice to Strike’ (2005) 56 Jnl of Australian

Political Economy 66 at 71.57 The balloting of all relevant employees makes sense, since the union has exclusive

bargaining rights: in contrast, in Australia only union members can lawfully take strikeaction (even though all employees are entitled to vote to approve or disapprove a collectiveagreement).

58 Workplace Relations Act s 478(1)(d). This period can be extended once by the commission,but only if the employer agrees: s 478(3)–(4).

59 United Collieries P/L v CFMEU (2006) 153 FCR 543 at [21] per Gyles J.


If a bargaining period is suspended then resumed the successful ballot is stilleffective.60

In relation to employer industrial action there are no procedural hurdlesother than notification to the employees. In contrast, in Canada the ballotrequirement formally applies also to an employers’ organisationcontemplating, declaring or causing a lockout.61 It has been suggested inAustralia that shareholders could be secretly balloted before a managementinspired lockout. As Briggs explains, the law now ‘positively discriminates infavour of employer lockouts [and] against strikes’.62 The one dispensation tothis asymmetry is that employee action in retaliation for a lockout does notneed to be approved by secret ballot.63

Philosophical and Practical Rationales For (andAgainst) Secret Ballots before Industrial Action

Arguments from the collective freedom of association

Freedom of association is one of the fundamental principles on which theInternational Labour Organization (ILO) is based. As Fenwick and Landauobserve, it ‘is a cardinal principle for the ILO: it is the basis from whichworkers might most fairly pursue their economic and social interests’.64 Theseauthors argue that the WorkChoices regime widened an already ‘significantgap’ between Australian law and ILO norms on freedom of association.65

There are two broad notions of being ‘free’ contained within the freedom ofassociation. One relates to what might be called existential freedom, ie, theindependence of trade unions. The other concerns their freedom of action.Australia is not in breach of the former requirement — unlike, say, Singapore,where unions are not free of government. The second aspect, freedom ofaction, is however a concern in Australia.

The principle of freedom of association extends beyond the bare right toassociate, to the more instrumental freedoms of action to collectively bargainand to strike. That is, the ILO has found the ability to take industrial action tobe necessarily implied by the freedoms of association and collectivebargaining.66 Thus, the supervisory bodies of the ILO, the Committee onFreedom of Association and the Committee of Experts on the Application ofConventions and Recommendations have both held that the right to strike isa fundamental right of workers and unions, while seeking to define its limits.

This is consistent with Art 8.1(d) of the International Covenant on

60 Workplace Relations Act s 434.61 Canada Labour Code, RSC 1985, c L-2, s 87.3(2).62 C Briggs, ‘Lockout Law in Australia’ (2007) 49 Jnl of Industrial Relations 167 at 179.63 Workplace Relations Act s 445(e).64 C Fenwick and I Landau, ‘WorkChoices in International Perspective’ (2006) 19 AJLL 127

at 134.65 Ibid, at 143.66 For discussion of the principles and resolutions concerned, see B Gernigon et al, ‘ILO

Principles Concerning the Right to Strike’ (1998) 137 International Labour Review 441 andT Novitz, International and European Protection of the Right to Strike, OUP, Oxford, 2003,pp 109–123. For Australian discussion post-WorkChoices, see Fenwick and Landau, aboven 64, pp 140–3.


Economic, Social and Cultural Rights, guaranteeing ‘[t]he right to strike,provided that it is exercised in conformity with the laws of the particularcountry’. Imposition of restrictions on industrial action, however, need to bereconciled with ILO Convention No 87’s requirement that ‘the law of the landshall not be such as to impair, nor shall it be so applied as to impair, theguarantees provided for in this Convention’.67

Reflecting this, the ILO’s Committee on Freedom of Association has ruledthat ‘legal procedures for declaring a strike should not be so complicated asto make it practically impossible to declare a legal strike’.68 It has resolvedthat an obligation to take strike decisions by secret ballot is acceptable,69 andthis includes the setting of a minimum quorum — or turnout — for suchballots.70 This is so notwithstanding that under Convention 87 the law shouldrefrain from impeding the right of unions to autonomy in the construction oftheir own rules and processes.71

The internal autonomy of unions and their decision-making practices,therefore, are not absolute. The justification for this is two-fold. First,authorising industrial action is not a purely internal matter, since the ultimateaction will affect the employer and third parties. Second, the freedom ofassociation, while primarily conceived as a collective interest, nests within itconcerns for the rights of individual members. Hence it may be reasonable toimpose conditions on internal governance of unions, provided the measureshelp guard against undemocratic or oppressive behaviour within unions. Thatsaid, it is more than ironic that in an era when legal and institutional supportsfor unions have mostly been removed, the law is becoming increasinglyprescriptive of their affairs, rather than treating them as civil organisationswith broad autonomy.72

In ruling on the detail of ballot laws in other countries, the Freedom ofAssociation Committee has held that the ‘requirement of a decision by overhalf of all the workers involved in order to declare a strike is excessive andcould excessively hinder the possibility of carrying out a strike, particularly inlarge enterprises’.73 It has also ruled that:

the requirement that an absolute majority of workers should be obtained for thecalling of a strike may be difficult, especially in the case of unions which grouptogether a large number of members. A provision requiring an absolute majoritymay, therefore, involve the risk of seriously limiting the right to strike.74

67 Convention on Freedom of Association and Protection of the Right to Organise (1948),Art 8(2).

68 ILO, Freedom of Association: Digest of Decisions and Principles of the Freedom ofAssociation Committee of the Governing Body of the ILO, 5th rev ed, ILO, Geneva, 2006,para [548].

69 Ibid, para [503].70 Ibid, para [510].71 Above n 67, Art 3.72 The comparison between the several hundred pages of the Workplace Relations Act

dedicated to regulating union affairs and the minimal regulation of political parties is telling.Of course far from de-regulating unions, it might be argued that their regulation should bea model for political parties: G Orr, ‘Overseeing the Gatekeepers: Should the Pre-selectionof Political Candidates be Regulated?’ (2001) 12 Public LR 89 at 93–4.

73 ILO, above n 68, para [556]. See similarly para [558].74 Ibid, para [557]. See similarly paras [560] and [561].


In light of these rulings, Fenwick and Landau argue that the ILO is ‘highlylikely’ to find that the Australian requirement of a 50% minimum turnout tobreach international law.75 There is some force in this argument, particularlyin relation to postal ballots. Even a national poll to elect representatives on theRepublican question, via postal balloting, could not generate a 50% turnout.76

It should be noted that the Workplace Relations Act does not require anabsolute majority of all members, just of those who vote.

Ultimately, the secret ballot regime must be assessed — and understood —not piecemeal, but as a whole, within the wider context of the laws onindustrial action and bargaining more generally. After all, at international law,the freedom to strike stems from the freedoms of association and bargaining,rather than being a free-standing civil or political right. Counter-posed to thosecollective freedoms is the philosophy most clearly espoused by Hayek. Boththe fact, and detail, of the secret ballot regime in Australia can be understoodas but one strand in a Hayekian rope, plaited to rein in the remainingprivileges enjoyed by trade unions. One of those, in this neo-liberal view, isthe ability to take protected action, immune from common law liability. Moregenerally, the neo-liberal objection is to the power of collectivism to interferewith individual liberty and ultimately the market order.77 (Of course, taken toits extreme, Hayek’s purely contractualist philosophy is as consistent withslavery as it is with liberty).

This is not the place to resolve whether the Workplace Relations Act, onbalance, preserves a minimally acceptable right to strike. The secret ballotregime, convoluted as it is, is but one relatively modest element of a largerdebate about freedom of association and collective bargaining in Australia. Asa matter of general principle, mandatory industrial action ballots arecompatible with freedom of association to the extent that they promote theautonomy of individuals within unions without unduly complicating thecollective’s ability to take action.

Arguments from individual freedom and democracy

It is commonly argued that secret ballots improve the credibility of electoraloutcomes by enhancing freedom of conscience. Thus, secret balloting wasadopted for parliamentary elections at a time when bribery and evenintimidation were not uncommon.78 The contrary position is that open votingcan ensure greater sincerity. If people vote openly, they are accountable toeach other, and may be more inclined to vote with collective interests, and notjust self-interest, in mind.79 The best justification for secret balloting at

75 Fenwick and Landau, above n 64, at 142.76 G Orr, ‘Tinkering with Convention: Voluntary Voting at Australia’s 1997 Constitutional

Convention Election’ (1998) 17 Electoral Studies 575 at 578.77 For a critical discussion, drawing on F A Hayek, Law, Legislation and Liberty, Vol III, 1979,

see Lord Wedderburn, ‘Freedom of Association and Philosophies of Labour Law’ (1989) 18ILJ 1 at 7–17.

78 There is a significant literature on the secret ballot, but for an accessible source, seeM McKenna, ‘The Story of “The Australian Ballot”’ in M Sawer (Ed), Elections: Full, Free

and Fair, Federation Press, Annandale, NSW, 2001, pp 48–51.79 See, eg, S Buckle, ‘Majority Rule Suffers without Reason’, The Australian, 16 January 2002,

p 11.


parliamentary elections today flows from the power of the modernadministrative state. So much of the population works for the government —and most of the population will be subject to administrative decisions personalto them — that it is reasonable to keep voting choices private.

Open voting is mandated for divisions in parliament, but this is explicablebecause parliamentarians are representatives. It is also the default rule formeetings generally, whether for associations or corporate boards (includingthose voting on lockouts). Thus, the common law leaves it to the body inquestion to decide if the question at hand is so divisive that it requires a secretballot procedure. Aside from cost, and accountability to the group, one reasonfor open voting is transparency: everyone at a meeting can verify that themajority indeed ruled.

What then is the justification for not only reversing the default rule atcommon law, but mandating secret ballots in union affairs? The implication iseither that intimidation of union members by officials or other members iscommonplace, or that some members perceive it to be a real threat. (It isinsufficient to claim that intimidation is perceived to be an issue by outsiders.)Supporters of mandatory secret ballot laws have produced no evidence thatintimidation or its fear is common, let alone that it generates majority supportfor otherwise unpopular strike proposals.

Further, any analogy between the power of union officials or majorities andthe power of the modern state is stretched. Contemporary labour law providesstrong protection to individual workers, much of which is enforceable by adedicated agency, the Workplace Authority (formerly the Office of theEmployment Advocate). Chief protections are:

• freedom to not join, and to leave, a union;80

• a prohibition on victimisation for not taking part in industrialaction;81

• a prohibition on victimisation for requesting or taking part in a secretballot;82

• a prohibition on union rules that are ‘oppressive, unreasonable orunjust’ or ‘otherwise contrary to law’.83

So, even in the absence of secret ballots, unions are legally barred fromadopting oppressive rules and taking reprisals against members who do notjoin in industrial action. This is the case however strong the majority opinionor importance of solidarity to the action. All that secret ballots add to suchprotection is the way that individuals voted will not be known to othermembers who apply social pressure, like shunning, to those who do notsupport action. Yet if the industrial action is approved, any individualunionists who refuse to take the action retain their legal protections but remainjust as open to social sanctions. That is, no secret ballot provision will help amember who is labelled a ‘scab’.

80 Workplace Relations Act ss 778(a), 793(1)(b), 797(3)(e).81 Workplace Relations Act ss 793(1)(e), 797(1)(a), 797(3)(g), 798(1)(a)–(b).82 Workplace Relations Act ss 793(1)(g)–(h), 797(1)(b), 793(1)(c)–(d).83 Workplace Relations Act Sch 1 (Registration and Accountability of Organisations)

s 142(1)(c) and 142(1)(a). Historically, a union could fine or even expel a member forrefusing to obey a lawful resolution of its executive, including participating in a strike. Thisprinciple of solidarity is now turned on its head.


Intimidation is not, however, the only bugbear. There is also the commonexperience of ‘show-of-hand’ votes at union meetings being unanimous, ornearly so. Assuming such unanimity to be common, it has two overlappingexplanations. One is that waverers are likely to be swept along by the moodof a meeting, and those who might otherwise oppose a motion see no point invoting ‘no’ or abstaining. Such natural phenomena do not in themselves justifymandatory ballots. (In any event, anyone present and concerned could requesta secret ballot from the meeting, a course perfectly consistent with freedom ofassociation). As the invariable practice of recording only whether a motion iscarried or defeated indicates, the point of voting at meetings is to discern themajority view: it is not to ascertain a perfect record of each individual’sopinion.

The second explanation of unanimity, which better supports mandatorysecret ballots, is that members who are not activists, who are dissidents, orwho feel they will be in the minority, may have insufficient incentive to attendmeetings. While that ultimately is their own decision, if a system of voting isto give equal weight to all voices, regardless of timidity or strength of feeling,then a secret postal ballot is a fair ideal.84

Whether mandating such ballots is worth the effort, is a matter for empiricaljudgement. It may be that turnout is not raised greatly, and that a similarlyhigh number of strike motions are carried. If so, the practical costs of secretballots could only be justified as a theoretical improvement in the individual’saccess to a free ballot. In expressing scepticism on this point, we are notdenying that the democratic freedom to associate has an individual element:full freedom of association is not achieved if some individuals feel excludedfrom the association’s processes. However we do not believe that any analogywith the freedom of individual conscience, drawn from the paradigm of votingin parliamentary elections is in itself reason to justify overriding the group’sautonomy in setting its own decision-making processes.

Arguments from pragmatism and economics

Industrial relations are ultimately matters of pragmatism, rather than politicaltheory. As mentioned, in Hayek’s analysis, collectives such as trade unionstend to undermine economic efficiency and productivity. While conceding anability to strike as an individual right, Hayek allowed significantcircumscription of this right when it affected the rights of others.85 Even astrong proponent of the right to strike such as Novitz concedes the obviouspoint that strikes can cause short term harm to employers, consumers, otherworkers and even public welfare.86 However she defends the right to strike byarguing that there is no evidence that repressing industrial action leads,long-term, to better macro or micro-economic outcomes.87 In essence, thispragmatic argument returns to the idea that collective bargaining is aninstrumental right, which can only genuinely exist if the ability to take

84 Unions can seek attendance ballots: above n 41.85 F A Hayek, 1980s Unemployment and the Unions: Essays on the Impotent Price Structure

of Britain and Monopoly in the Labour Market, 2nd ed, 1984, discussed in Novitz, aboven 66, p 75.

86 Novitz, above n 66, pp 75–80.87 Ibid, pp 80–3.


industrial action is reasonably preserved. Ostensibly, since the shift toenterprise bargaining in 1993, Australian labour law has embodied thisunderstanding in carving out room for protected action during a bargainingperiod. As Harris puts it, ‘the ability to take industrial action is integral to thefair operation of the process of collective bargaining’, particularly given thelack of any ‘mechanism for compulsory dispute resolution’.88

A second strand to Novitz’s argument is that there is no such thing as amarket prior to the law or society: ‘supply, demand, and the rules of exchangewithin a market are ultimately shaped by a country’s social system and values.It is for government and, indeed, the international community as a whole todetermine how a market is constructed and the values which it reflects’.89

Through this door, the value of freedom of association and union autonomy,and the value of collective bargaining as a form of industrial citizenship andthe ability to take strike action as a form of economic liberty, enter to beweighed against purely utilitarian considerations of economic impact.

In Australia, as in the developed world generally, the level of industrialaction has fallen to its lowest levels in living memory.90 As measured byworking days lost per thousand employees, they are at the lowest levels sinceAustralian records began in 1913 and, by any macro-economic consideration,have fallen to negligible levels.91 Historically, dispute levels tended to followa cyclical pattern.92 However the continuous decline since 1987 is noteworthyboth because of its degree, and because there has been no upturn despite atightening of the labour market.

In part this worldwide trend is because utilitarian governments of variouspolitical hues, promoting economic efficiency using Hayekian models, havelegislated to repress any semblance of industry wide action, or for that matteraction outside of a limited range of matters during enterprise-by-enterprisebargaining periods. In part, as Ewing observes, a host of other factors helpexplain the low level of industrial action: rising living standards, more stableeconomic conditions, the fall in trade union membership, displacement ofstrike activity by alternative dispute resolution, and globalisation distancingworkers from the source of decision-making.93

Hayek of course was writing — and the Thatcher Government in Britainwas legislating for secret ballots — in an era of industrial strife and economicdifficulty. The Coalition government in Australia, by contrast, has enactedmandatory ballots at a time of economic prosperity. This may seemcounter-intuitive at first glance: why bother? But it appears natural when onerealises that the hope of conservatives is that once curbed by law, union power

88 J Harris, ‘Federal Collective Bargaining after Electrolux’ (2006) 34 FLR 45 at 49.89 Novitz, above n 66, p 83.90 For example, in the United Kingdom ‘the number of working days lost in 1998 was a mere

282,000 compared to the 14,077,000 . . . in 1972’: K Ewing, ‘Laws against StrikesRevisited’ in C Barnard, S Deakin and G Morris (Eds), The Future of Labour Law: Liber

Amicorum Bob Hepple QC, Hart Publishing, Oxford, 2004, p 42.91 L J Perry, ‘A Long-Term Perspective on Industrial Disputes in Australia: 1913–2003’ (2005)

24 Economic Papers 263. A similar decline exists for duration of industrial action: see Perry,at 269 (Figure 4).

92 Ibid, at 266.93 Ewing, above n 90, p 42. See also L Perry, ‘Comments on the Decline in Strikes in Australia’

(2004) 30 Australian Bulletin of Labour 134.


will stay curbed. Further, their efforts are now primarily aimed at a few

industries where what industrial action remains, predominates.94 The most

recent ABS data on industrial disputes shows a further 50% fall in numbers of

days lost,95 a fall the government would attribute, at least in part, to the secret

ballot requirement.

The arguments given in this section, of course, are relevant to industrial

action per se, and not merely procedural limitations, such as strike ballots.

What is telling is the degree to which both sides of politics in Australia now

accept the Thatcherite notion that strike ballots are partly justified by a

conception of industrial action as illegitimate, except as a truly last resort in

a bargaining impasse. Thus, in 2007 the federal Labor opposition announced

that it had come to embrace the principle of mandatory secret ballots.96 Thiswas not so much an election-year ploy, as a significant shift by the politicalwing of the labour movement to embrace the idea of industrial action as a lastresort even in a deregulated bargaining system. Consistent with that, the secretballot regime is designed to increase the cost of, and thereby deter,‘unnecessary’, industrial action. Similarly, the solemnity of the ballotingprocess is intended to make unionists think twice about taking industrialaction. It is also structured to give employers extra notice of possible action,and legal rights to intervene. Each of these elements fit Hayek’s concern forthe interests of employers and third parties, and the belief that industrial actionis rarely productive. Only time and practice will tell if it fits the ILO’s concernthat ballot laws not unduly hinder the freedom of industrial action.

The Case Law on Industrial Action Ballots under

WorkChoices

In the first 15 months of mandatory ballots, to mid 2007,97 we identified48 reasoned decisions by the AIRC on ballot applications.98 The majority wereroutine or technical, revealing no significant jurisprudential issues in theinterpretation of the legislation. There has been only one real jurisdictionalquestion. This was whether the commission could determine whether thereactually were employees covered by the applicant unions and within thecategories to be balloted, or whether (say) that involved an ultra vires

94 Australian Chamber of Commerce and Industry, ‘Strikes Fall to All Time Low’, IssuesPaper, January 2007, p 3, citing coal and manufacturing.

95 Australian Bureau of Statistics, Industrial Disputes, Australia, March 2007, ABS6321.0.55.001 released 7 June 2007, showing days lost in non-trivial action for the yearending March 2007 falling from 213,200 to 109,500.

96 K Rudd MHR, Speech to the National Press Club, 17 April 2007, at<http://www.alp.org.au/media/0407/speloo170.php>.

97 In the first three months of WorkChoices there were precious few applications, possibly dueto uncertainty over whether ballots were required in that transitional period: see Re Minister

for Employment and Workplace Relations [2006] AIRC 262, overruling Re Australian

Nursing Federation [2006] AIRC 226.98 The actual number of applications and orders is considerably greater: Commissioners make

routine and uncontested orders without publishing reasons.


determination of award coverage. It was held that such a determination wasnot judicial power, but a mere step in the non-judicial process of issuing aballot order.99

A cluster of cases has turned on the requirements that the union be in avalidly-initiated bargaining period,100 and been genuinely trying to reachagreement.101 A few others have dealt with the requirement that a unionshould not engage in pattern bargaining. The notions of ‘genuineness’ and‘pattern bargaining’ involve a fair degree of discretion, or at least flexibility intheir application to the fluid context of negotiations. They are not, of course,only relevant to ballot applications: but if they are not met, the union ispenalised by being disbarred from taking protected action. A good example ofthis is AMWU v VisyPak Operations where, even though negotiations hadhardly progressed in six months, Commissioner Eames denied ballotapplications because he felt the unions had not made realistic shifts on wagenegotiations or attended enough negotiation meetings.102 The same unionfailed at another site because it had not given management sufficientopportunity to respond to specific claims before seeking a ballot.103

Another issue requiring some discretion is the presence of claims for‘prohibited content’, such as union security matters or other claims fallingoutside the strict ‘employment relationship’. To what extent do such claimstaint the bargaining process and hence the ballot application?

Following the Electrolux case, the inclusion of even a single such claimwould render the whole bargain uncertifiable, and hence any action in supportof it ‘unprotected’. That position has since softened: the agreement ifregistered is not void, but the offending clauses are of no effect. Nonetheless,industrial action over a log of claims that includes ‘prohibited content’104 inits demands may be tainted, until the demands are abandoned.105 In NUW vBlue Circle Transport, the employer argued that the union had initially soughtto include prohibited content in a common law side-agreement. Vice-PresidentWatson accepted that pressing such claims was a failure genuinely to seekagreement. However merely because a union ‘transgresses at some point’ inthe bargaining process does not mean it is forever denied the ability to takeprotected action: the illicit bargaining claims would have to be pressed ‘for an

99 AMWU v Skilled Group Ltd [2007] AIRC 251 at [6]–[10]. Similarly, the AIRC may have todetermine the coverage of an existing collective agreement if a union not involved in thatagreement seeks to take bargaining action: AMWU v Thiess P/L [2007] AIRC 385.

100 See, eg, the ongoing litigation over the validity (and then termination) of a union-initiatedbargaining period naming other unions as respondents: LHMU (WA) v CSBP Ltd cases,above n 31 and CBSP Ltd v LHMU (WA) (2007) 162 IR 81.

101 See the LHMU (WA) v CSBP Ltd cases, above n 31, particularly the discussion by McCarthyDP of 15 June 2007.

102 AMWU v VisyPak Operations P/L [2006] AIRC 668. The making of ‘extravagant demands’or taking a ‘hard line’ approach are not inconsistent with genuine bargaining: AMEIU v G &

K O’Connor (1999) 91 IR 356.103 AMWU v Skilled Group Ltd, above n 99.104 A wide and shifting concept, that covers matters outside the employment relationship,

discriminatory provisions, ‘objectionable’ provisions (eg, against freedom of association)and anything else the Minister cares to prohibit by way of regulation: see WorkplaceRelations Regulations 2006 regs 8.5–8.7.

105 AMWU v Kempe Engineering Services [2006] AIRC 480 per Senior Deputy President Acton.


important period of the bargaining period’.106 Commissioner Mansfield, inobiter, suggested that the inclusion of a ‘relatively minor matter’, even if onthe table throughout the negotiations, would not necessarily impugn thegenuineness of negotiations.107

In contrast, Senior Deputy President Acton in the earlier case of CEPU vCadbury Schweppes Australia held that seeking a side agreement to avoid theban on prohibited content was not the focus of the test for genuineness. Theballot process hinges on whether the industrial action is being pressed toadvance collective bargaining claims. Nevertheless, on the facts, the unionsfailed the genuineness test of seriously considering the employer’s bargainingoffers, because they had made entry into a side agreement a pre-condition ofsettling the enterprise agreement.108

Faced with the contrast of approach between Blue Circle and CadburySchweppes the Full Bench, in the Country Fire Authority v UnitedFirefighters’ Union held that any pursuit of prohibited content in aside-agreement prima facie ‘strongly suggests’ a failure to genuinely bargain.The onus was placed on the union to produce evidence that the prohibitedcontent claims ‘were no longer being pursued or were otherwise irrelevant tothe negotiations for a collective agreement’.109 In a strongly worded opinionglossing this issue, Vice President Lawler stressed the importance of freedomof contract. He held that unions were free to pursue side agreements, eg, forunion security matters, provided ‘there is no linkage’ whereby the enterprisebargaining — and hence the industrial action — is conditional on the sideagreement.110

While the incidental inclusion of prohibited content in the ‘initial“skirmish”’ of early negotiations may be overlooked, unions have to beultra-cautious about their bargaining claims. The test for prohibited contentcan be vague in practice, yet the ballot laws require an ongoing ‘genuineness’in negotiations,111 coupled with a fairly puristic approach to the presence ofany prohibited claims.

A separate Full Bench has, however, emphasised in line with CadburySchweppes that a failure unequivocally to withdraw prohibited content claimsis not definitive. The issue to be answered remains whether the union is andhas been genuinely negotiating.112 Given that what is ‘prohibited content’ canbe difficult to answer in advance of a commission ruling, it is ‘open to’ and‘prudent of’ a union to make it clear at the ballot application stage that it wasrenouncing any such claims.113 Alternatively, if the commission sees the status

106 NUW v Blue Circle Transport P/L [2006] AIRC 495 at [23].107 CEPU v Hydro-Electric Corporation of Tasmania (unreported, AIRC, 8 September 2006,

PR973904) at [34].108 CEPU v Cadbury Schweppes Australia Ltd [2006] AIRC 554 at [39]–[40] and [52]–[53]. In

AMWU v Visy Industrial Plastics [2006] AIRC 479, Senior Deputy President Marshfollowed the Cadbury Schweppes approach, but reached a different result on the facts.

109 Country Fire Authority v United Firefighters’ Union [2006] AIRC 563 at [38].110 CFMEU v Ulan Coal Mines Ltd [2006] AIRC 649 at [10]–[11]. See similarly CFMEU v

Thiess P/L [2006] AIRC 662 in relation to efforts to obtain a ‘gentleman’s agreement’ ratherthan a formal side agreement.

111 Workplace Relations Act s 461(1)(a) and (b).112 Tyco Australia t/as Wormald v NUW, above n 37, at [19].113 Ibid, at [20].


of the contentious clauses as ‘uncertain’ it will not necessarily find the unionto have failed the ‘genuine bargaining’ test.114

Cases on the ballot process and ballot questions

On the ballot process itself, there have been two classes of cases of interest.The first concerns the confidentiality obligations of the ballot agent.115

A privacy issue exists for employees who may not want their unionmembership status known to their employer. Hence, the Act protectsinformation that will identify someone as being on the list of voters. Therequirement however is problematic if it inhibits the rolls from beingcompletely accurate. To ensure scrutiny at ordinary elections, the rolls arepublic records, even if this may give away details of one’s gender, citizenshipstatus and even address.116 A practical hurdle to creating a definitive votingroll by reconciling an employer’s list of employees subject to the bargainingprocess, and the union’s list of members, was identified by the AIRC as aconcern in the very first ballot application.117

Tension between the values of privacy and openness/accuracy were alsoconfronted in CPSU v Australian Broadcasting Corporation.118 In a pair ofrelated ballots concerning over 2000 unionised employees, the employeragreed to provide the AEC with a list of potentially eligible employees basedon job classification, and the unions to provide lists of members they thoughtwere employed by the Corporation. However job classifications were notalways reliable to distinguish the overlapping coverage of the two unions.Worse, the nature of the industry — with significant mobility, casualemployment and people working under ‘stage names’ — meant that the unionand employer’s lists were unlikely to correlate.

Vice-President Lawler ordered the AEC to notify the unions of names ontheir membership lists that did not appear on the employer’s lists, to allow theunions to clarify missing names. The AEC objected, even though it admitteda nearly 50% shortfall between the employer’s list and one of the union’s lists:a potentially heavy disenfranchisement. The Vice-President reasoned that theorder did not enable the union to definitively deduce that any particularmember was on the voting roll, since such a member could be ineligiblebecause they worked under an AWA, as an independent contractor, or hadrisen to a managerial level not subject to enterprise bargaining. On appeal, avery literalist Full Bench overturned the order. But it did so not because theorder exposed the AEC to a breach of confidentiality rules, but because it tooka narrow view of the powers to make ballot orders.119

Legislative clarification is needed of the purpose of confidentiality. If it isto protect union membership status from employers, then an order giving

114 AMWU v Skilled Group Ltd, above n 99, at [40].115 Workplace Relations Act ss 485–486 provides protection for certain personal information

generated in ballot processes.116 For parliamentary elections, the onus is on electors who want a ‘silent’ enrolment to

demonstrate personal/familial risk (eg, from a stalker) to justify suppressing publication oftheir address: see eg Commonwealth Electoral Act 1918 (Cth) s 104.

117 Re Australian Nursing Federation [2006] AIRC 226 at [10]–[20] per Vice-President Lawler.118 CPSU v ABC [2006] AIRC 505.119 Re AEC, above n 37.


information to a union to help it ensure eligible members are added to thevoting roll seems unobjectionable. If it is to deny unions access to thedefinitive voting roll so they cannot campaign hard for a ‘yes’ vote, then it isfairly pointless, as unions will rely on blanket messages and word-of-mouth.

The second brace of procedural cases concern the framing of the ballotquestion(s). Opinion pollsters — and those who frame referendumquestions120 — are well-aware that how a question is presented can influencevoting outcomes, especially when the process is limited to a binary choice ofapproval or disapproval. We earlier noted cases under the old law, where theballot question was of the form ‘Are you willing to work in accordance withthe award?’ rather than ‘Do you support this particular industrial action?’121

That is, emphasis was placed on the underlying dispute in the union log ofclaims. If the grievances were genuinely held, this may have tilted the ballotquestion towards ‘No’, ie, an endorsement of the action. However the new lawmandates that the ballot application and order specify the questions ‘includingthe nature of the proposed industrial action’.122

A commonly litigated issue is the specificity required in describing theproposed action. This question is significant in two ways to the power balancein a bargaining dispute: greater specificity gives greater notice to an employer,and restricts the flexibility of the workers concerned. In a worst-case, unduespecificity as to the timing, duration, type and location of action may mean theunion has to incur further delay and cost in returning to the commission for asecond ballot. A Full Bench of the AIRC has accepted that similar principlesguide the specificity of the description for a ballot application as for asubsequent notice that action is about to be taken.123

In NUW v Blue Circle Transport, the union sought an attendance ballot atthe worksite, in the now typically long-winded form:

In support of advancing claims with respect to a union collective agreement withyour employer do you support the taking of protected industrial action against youremployer in the form of an indefinite strike by warehouse employees [who are unionmembers at the site]?124

The type of action was described (‘strike’) but its timing was not, and itsduration was kept open-ended, presumably to give the union maximumflexibility and perhaps spook management. (The term ‘indefinite’ strike mightsimilarly spook some ingenuous employees.) The employer objected tovagueness in the term. Vice-President Watson however held the term would beclear and readily understood by the members. There was also precedent fromthe Full Federal Court, in a case on the adequacy of industrial action notice,approving the use of ‘ordinary industrial English, for example: “an indefinitestrike of all employees”, “a lock out of all employees employed in the ABFabrication Plant”, “a ban on overtime” . . .’.125 In another ballot case, Senior

120 For cases involving referenda, see G Orr, ‘The Conduct of Referenda and Plebiscites inAustralia: a Legal Perspective’ (2000) 11 Public LR 117 at 125–6.

121 See above n 8.122 Workplace Relations Act ss 452(1)(a), 463(1)(g).123 CFA v UFU, above n 109, at [20].124 NUW v Blue Circle Transport, above n 106, at [36] (emphasis added).125 Ibid, at [39], quoting Davids Distribution v NUW (1999) 91 FCR 463; 165 ALR 550 at 578.


Deputy President Marsh approved the bald term ‘rolling stoppages throughoutthe plant’, focusing on its intelligibility to the workers being balloted, and noton an employer interest in being able to make ‘defence arrangements’ as earlyas possible.126

Senior Deputy President Richards however has insisted that the ballotquestion must specify both type and duration of the proposed action. Hereasoned that an employee needs such information to make a properlyinformed choice, including ‘to weigh up their exposure to economic loss . . .against the benefits that may accrue from a more aggressive bargainingstrategy’.127 As a result, he rejected as too vague the question:

In support of reaching a union collective agreement with your employer, do youendorse the taking of protected industrial action against your employer which mayinvolve strikes, bans on weekend work and bans on overtime by maintenance andengineering employees [at named sites].128

However he accepted the vagueness was cured by inserting ‘of indefiniteduration’. Perhaps this ruling is apt in democratic principle, but it effectivelyencourages unions to insert the term ‘indefinite’ into all applications, to avoidhedging their members’ options. Curiously, the legislation does not attempt toerect any process for the ending of indefinite action, which could occurthrough a show of hands, the wilting of the action or even the union executivede-authorising its continuation. Descriptions of actions as ‘indefinite’ or‘rolling’ are also encouraged, since as long that action commences in the30 day period, it can continue afterwards.129

Another means by which a union might seek flexibility of action, or nottelegraph its punches, is to include a compendious list of possible industrialaction.130 The most egregious was a question of the form:

Do you endorse . . . action . . . which may involve:4 hour stoppages of work;12 hour stoppages of work;24 hour strikes; 48 hour strikes;72 hour strikes;strikes for a period of one week;indefinite strikes;indefinite or periodic bans on overtime;indefinite or periodic bans on call backs;indefinite or periodic bans on the processing of paperwork.

The question passed muster as it was in plain English, although theCommissioner thought it could have been better structured.131

In contrast, a less lengthy question of the form: ‘Do you endorse . . . 4 hour

126 NUW v Saint-Gobain Abrasives, above n 36, at [26]–[31].127 AMWU v Woolworths Ltd [2006] AIRC 506 at [22].128 Ibid, at [30].129 United Collieries v CFMEU, above n 59.130 Thus one early application sought endorsement of a potpourri including bans on particular

computer systems, radio communications, overtime, and call-backs, as well as three types ofstoppages/strikes: CEPU v Cadbury Schweppes Australia, above n 108, at [4].

131 AMWU v Amcor Packaging (Australia) P/L t/as Amcor Cartons Australasia [2006] AIRC382. See also NUW v Vopak Terminals Australia P/L [2007] AIRC 315 where the approvedquestion listed nine types of action.


stoppages, [various named] bans, and/or strikes’ was rejected as toocompendious. It was split into separate questions about stoppages of a fixedduration, bans, and ongoing strike action, to give employees more choice andto better warn the employer.132 Similarly, merely providing a lengthy list oftypes of bans will not suffice if the descriptions are infected by vagueness.133

Lessons from the case law

In summary, the case-law so far suggests many industrial ballot applicationsare formalities. There may, therefore, be a case to simplify the process tominimise wasting AIRC and union time and resources. On the other hand, inmany other applications, the employer has, almost routinely, alleged problemsin the bargaining. Discretion, therefore, has mostly been applied not toquestions about the ballot process but whether the union has been engaged ingenuine, and not pattern bargaining, or has prohibited content on thenegotiating table.

On one view this tilts the playing-field further towards employers, creatinga mechanism for employers to ask the commission, albeit indirectly, to imposegood faith bargaining obligations on unions.134 There is no comparableopportunity for employees to pressure employers who are not genuinelybargaining. Instead, employees unhappy with employer intransigence inbargaining must resort to industrial action itself, a manoeuvre now hedgedwith constraints — of which the ballot process is but the latest.

Besides lock-outs or other industrial manoeuvres, employers already havea multiplicity of legal avenues. These include seeking a suspension and eventermination of the bargaining period if a union is using industrial actionwithout genuinely bargaining,135 or pattern bargaining has emerged.136 Theyalso include declarations and stop orders if action is taken in support ofprohibited content or pattern bargaining claims.137

In defence of industrial action ballots, it can be argued that they provide anearly intervention mechanism to catch — and allow unions to correct —problems in their approach to bargaining. That is, the ballot process pre-emptsthe legal avenues just mentioned, avoiding the more draconian consequence ofsuspension or termination of the bargaining period or exposure to damages ifthe action is deemed unprotected after the event.

Conclusion — Subject to Fine-tuning, Ballotsare Here to Stay

This article has detailed the law on, and rationale for and against lawsmandating secret ballots before industrial action. In summary, we observe that

132 AMWU v Radio Rentals Ltd [2006] AIRC 520.133 CFA v UFU, above n 109.134 See, eg, AMWU v VisyPak Operations, above n 102; or the panoply of employer objections

in AMWU v Mayfield Engineering, above n 36.135 Workplace Relations Act s 430(2). In theory a union can invoke this section against an

employer, but given the narrowness of the definition of employer ‘industrial action’, and itsrelative rareness, the power is primarily one to punish zealous unions.

136 Workplace Relations Act s 431.137 Workplace Relations Act ss 436, 439.


the provisions in Australia are relatively complex. But the 50% thresholdaside, it is not so draconian as to amount to an undue hurdle to the ‘right tostrike’ under international law. Data drawn from the AIRC’s public recordssuggests that ballots are being approved with average majorities of between88.6% and 94.3%.138 While it is impossible to prove a negative claim that theballot laws are not inhibiting strike action — since unions may beself-censoring ballots where they fear turnout will be insufficient, or action insmaller workplaces due to the cost — the approval rates just cited areremarkably high.

Nor is this to say that mandatory ballots are just a symbolic exercise orbureaucratic irritant. Their practical sting is in giving employers further noticeof intended action, and an ability to intervene in the process, including throughcostly and delaying legal action. We particularly question whether ballot lawshould be used to reinforce existing strictures on union conduct in bargaining,even if in some cases this may give unions advance clearance, as it were, thatthe action will be protected.

The democratic imperative is met if members are able to vote on proposedaction: it is then up to the union to ensure that the action is protected at thetime it is taken. This concern is reinforced when it is remembered thatemployers face no hurdles in their ability to bargain, including by using sharppractices in bargaining, given the absence of any good faith bargainingrequirement.

While much of the 2005 WorkChoices reforms stands to be repealed orsignificantly overhauled if a Labor Government is returned federally, theprinciple of secret ballots appears set to become a fixture. As we noted earlier,the Labor Opposition leader highlighted this pledge in his first majorannouncement on industrial relations in 2007.139 Indeed federal Labor may beable to extend the requirement to all private sector employees, if state Laborgovernments agree to establish a national industrial relations system, and notone limited, like WorkChoices by the corporations power.

In joining with the conservative Coalition in accepting the desirability ofkeeping industrial action to a bare minimum — and being seen to do sothrough procedural hurdles such as ballots — the Labor party has taken botha politically and economically pragmatic position, rather than one concernedwith the niceties of international law or the philosophy of freedom ofassociation. The difference between Labor and the Coalition is not over theability to strike as such: neither party is committed to defending that. Ratherit rests in the institutional mechanisms to resolve industrial disputation. Laborstill believes in Higgins’ dream of an independent, conciliatory umpirewhereas the Coalition just wants a commission that expeditiously polices lawsagainst industrial action.

As a matter of principle, we conclude that secret ballot laws run against thecollective principle of freedom of association, itself a cornerstone ofdemocracy. But they are consonant with an individualistic understanding of

138 We are indebted to an anonymous referee for sharing this cumulated data with us. The lowerand upper ranges reflect the fact that in many individual ballots there are multiple questions,some attracting more support than others.

139 Above n 96.


democracy. As a matter of practicality, mandating secret ballots in an era ofexceptionally low industrial action is simultaneously an act of overkill andyet, because of that, not a big issue. In accepting regulation that was onceanathema, the labour movement is both admitting its relative weakness, andreflecting the reality that there is now a strong bipartisan consensus behind thelegislative antipathy to industrial action, except as a very last resort, and eventhen only as a tightly constrained response to an enterprise bargainingimpasse.

Judging both by overseas experience and Australian experience to date, fewballots are lost. There are of course many explanations for this. One is thatunions are unlikely to seek a ballot unless they believe support is strong. Such‘self-censoring’ spares employers upset, but also spares unions half-heartedindustrial action. Another explanation is that the rigmarole of balloting and adesire to keep options open encourages unionists to vote ‘yes’. None of thisis to deny that the time, cost and extra notice to employers represent animpediment to employee action.140

One positive of ballots for unions is that merely initiating the ballot processmay in itself be a bargaining tactic. That is, initiating the process signals theunion’s determination, and a strong ‘yes’ vote signals the employees’determination. If so, negotiations may be expedited and employers makeconcessions, without the loss of wages and productivity involved in having totake the action itself.

There is room to streamline the law to adjust the balance or adapt aspectsof the overseas experience. For example, amendments could restrict the abilityof employers to intervene in the process, and reduce the minimum turnoutrequired. But regardless of what modifications might occur in the future, theadvent of secret ballots is evidence of the establishment, in legal principle, ofa bipartisan policy that views industrial action as a pre-modern legacy ofindustrial relations.

140 See Briggs, above n 62, at 180–1, for a critical account of the secret ballot requirements.


mandatory secret ballots before employee industrial action

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