Pre-strike ballots and enterprise bargaining dynamics: an empirical analysis

Alice Orchiston, Breen Creighton, Catrina Denvir, Richard Johnstone, Shae McCrystal

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Under the model of enterprise bargaining enshrined in the Fair Work Act 2009 (Cth), the primary mechanism for employees to exercise industrial power during negotiations in respect of future wages and conditions is protected industrial action. Access to protected industrial action is contingent upon the employees and their bargaining representatives having complied with a series of statutory prerequisites. The most significant of these is the requirement to hold a pre-strike ballot of the relevant employees to authorise the proposed action. Without approval in a ballot, any industrial action undertaken will be unprotected, leaving the union open to liability under common law and statute, and its members potentially subject to dismissal from employment. This article explores the effect of pre-strike ballots on union decision-making and enterprise bargaining. Drawing on statistical analysis of a cross section of protected industrial action ballot applications made to the Fair Work Commission over a period of 12 months, and grounded theory analysis of interviews with ballot applicants, employer respondents and key stakeholders, this article evaluates whether the protected action ballot order regime in practice provides a 'fair, effective and simple' mechanism for ascertaining employee support for industrial action, as suggested when the provisions were first introduced. The discussion explores how the introduction of pre-strike ballots has created new opportunities for unions to exert pressure in collective bargaining but at a considerable cost in terms of the use of union resources and in providing opportunities for employers to delay access to industrial action. It also considers whether there is a better process for allowing union members to indicate their support for industrial action, in order to remove the administrative burden imposed on the Fair Work Commission, employers and unions by the existing model of pre-strike ballot regulation.
Original languageEnglish
Pages (from-to)593-631
Number of pages39
JournalMelbourne University Law Review
Issue number2
Publication statusPublished - 2019
Externally publishedYes


  • labour law
  • strike ballots
  • industrial action
  • unions
  • Fair Work Act 2009

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