1
Fair Work Act 2009
s.468A - Application for an eligible protected ballot agent
Crowd Faction Pty Limited
(B2023/684)
DEPUTY PRESIDENT HAMPTON ADELAIDE, 24 JULY 2023
Application for Crowd Faction Pty Limited to become an eligible protected action ballot agent.
1. The nature of this application
[1] Crowd Faction Pty Limited (Crowd Faction) has applied under s.468A of the Fair
Work Act 2009 (Act) for approval as an eligible protected action ballot agent. This application,
and the concept of approved eligible protected action ballot agents, takes place in the context
of certain amendments to the Act that were introduced by virtue of the Fair Work Legislation
Amendment (Secure Jobs, Better Pay) Act 2022 (Amending Act). These changes commenced
on 6 June 2023 and amongst other matters, impact upon the making of Protected Action Ballot
Orders (PABO) and the approval of protected action ballot agents who might conduct the ballot
should a PABO be made.
[2] I deal with the statutory context and the approval requirements below. In short, where
an applicant is approved by the Commission as an eligible protected action ballot agent, they
will be authorised to conduct the ballots of employees required when a PABO is issued. Further,
where named in the PABO application and proposed orders, the Commission will, subject to
the Act, be obliged to, in effect, appoint them to conduct the ballot concerned.
[3] The Act sets out the approval requirements, which are in effect, that the applicant is a
fit and proper person to conduct protected action ballots.
[4] This application was lodged on 10 July 2023. Shortly thereafter, the Commission stated
on its website that Crowd Faction had made the application and that interested parties could
make submissions before the closing date of 18 July 2023. Earlier, the President of the
Commission issued a public Statement1 advising that this would be the process for dealing with
such applications and that the details would be available on the website.
[5] No submissions have been received in relation to this application. In any event, it
remains necessary for the Commission to consider whether Crowd Faction has established that
[2023] FWC 1763
DECISION
AUSTRALIA FairWork Commission
[2023] FWC 1763
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it is entitled to apply to be an eligible protected action ballot agent and is a fit and proper person
for that purpose, and to ultimately determine whether Crowd faction should be approved.
[6] For reasons that are set out below, I am satisfied that I should approve the application.
2. The statutory context and the nature of the applicant as an eligible
protected action ballot agent
[7] The Act relevantly provides as follows:
“443 When the FWC must make a protected action ballot order
(1) The FWC must make a protected action ballot order in relation to a proposed
enterprise agreement if:
(a) an application has been made under section 437; and
(b) the FWC 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.
(2) The FWC must not make a protected action ballot order in relation to a proposed
enterprise agreement except in the circumstances referred to in subsection (1).
(3) A protected action ballot order must specify the following:
(a) the name of each applicant for the order;
(b) the group or groups of employees who are to be balloted;
(c) the date by which voting in the protected action ballot closes;
(d) the question or questions to be put to the employees who are to be balloted,
including the nature of the proposed industrial action;
(e) the person or entity that the FWC decides, under subsection 444(1A), is to
be the protected action ballot agent for the protected action ballot;
(f) the person (if any) that the FWC decides, under subsection 444(3), is to be
the independent advisor for the ballot.
(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will
enable the protected action ballot to be conducted as expeditiously as practicable.
(5) If the FWC is satisfied, in relation to the proposed industrial action that is the
subject of the protected action ballot, that there are exceptional circumstances
justifying the period of written notice referred to in paragraph 414(2)(a) being
longer than 3 working days or 120 hours (whichever is applicable), the protected
action ballot order may specify a longer period of up to 7 working days.
Note Under subsection 414(1), before a person engages in employee claim
action for a proposed enterprise agreement, a bargaining
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representative of an employee who will be covered by the agreement
must give written notice of the action to the employer of the
employee.
444 Ballot agent and independent advisor
(1) This section applies if the FWC must make a protected action ballot order under
subsection 443(1).
Protected action ballot agent
(1A) The FWC must, in accordance with subsections (1B) to (1D) of this section,
decide the person or entity that is to be the protected action ballot agent for the
protected action ballot.
(1B) The person or entity must be the person or entity specified in the application for
the protected action ballot order as the person or entity the applicant wishes to
be the protected action ballot agent, unless:
(a) the person or entity specified in the application does not meet the
requirements of subsection (1C) (unless subsection (1D) applies); or
(b) the FWC is satisfied that there are exceptional circumstances that justify
another person or entity being the protected action ballot agent.
(1C) The person or entity must be an eligible protected action ballot agent.
(1D) Subsection (1C) does not apply in relation to a person if the FWC is satisfied
that:
(a) there are exceptional circumstances that justify the ballot not being
conducted by an eligible protected action ballot agent; and
(b) the person is a fit and proper person to conduct the ballot; and
(c) any other requirements prescribed by the regulations are met.
Note: Other than the Australian Electoral Commission, an entity that is not
a person cannot be the protected action ballot agent for a protected
action ballot.
(2) The regulations may prescribe:
(a) conditions that a person must meet in order to satisfy the FWC, for the
purposes of paragraph (1D)(b), that the person is a fit and proper person to
conduct a protected action ballot; and
(b) factors that the FWC must take into account in determining, for the
purposes of paragraph (1D)(b), whether a person is a fit and proper person
to conduct a protected action ballot.
Independent advisor
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(3) The FWC may decide that a person (the other person) is to be the independent
advisor for a protected action ballot if:
(a) the FWC has decided that a person other than the Australian Electoral
Commission is to be the protected action ballot agent for the ballot; and
(b) the FWC considers it appropriate that there be an independent advisor for
the ballot; and
(c) the FWC is satisfied that:
(i) the other person is sufficiently independent of each applicant for the
protected action ballot order; and
(ii) any other requirements prescribed by the regulations are met.”
[8] The new approval requirements for eligible protected action ballot agents are set out in
the following terms.
[9] Section 12 of the Act contains the following relevant definitions:
eligible protected action ballot agent: see subsection 468A(1).
protected action ballot agent for a protected action ballot means the person or entity
that conducts the protected action ballot.
[10] Section 468A of the Act provides:
“468A Eligible protected action ballot agents
(1) Each of the following is an eligible protected action ballot agent:
(a) the Australian Electoral Commission;
(b) a person approved by the FWC under subsection (2).
(2) For the purposes of paragraph (1)(b), the FWC may, in writing, approve a person
as an eligible protected action ballot agent if the FWC is satisfied that:
(a) the person is a fit and proper person to be an eligible protected action
ballot agent; and
(b) any other requirements prescribed by the regulations are met.
(3) The regulations may prescribe:
(a) conditions that a person must meet in order to satisfy the FWC that the
person is a fit and proper person to be an eligible protected action ballot
agent; and
(b) factors that the FWC must take into account in determining whether a
person is a fit and proper person to be an eligible protected action ballot
agent.
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(4) The FWC must, at least every 3 years after it approves a person as an eligible
protected action ballot agent, consider whether the FWC remains satisfied that
the person meets the requirements mentioned in subsection (2).
(5) If, after considering the matter under subsection (4), the FWC is no longer
satisfied that an eligible protected action ballot agent meets the requirements
mentioned in subsection (2), the FWC must take:
(a) any action prescribed by the regulations; and
(b) any other action the FWC considers appropriate.”
[11] I observe that no regulations have been made for the purposes of s.468(2)(b) of the Act.
This means that the Commission must consider whether the applicant, in this case Crowd
Faction, is a fit and proper person by reference to the general concept unaided by additional
requirements or considerations. If satisfied, a discretion arises to approve the application.
[12] The Explanatory Memorandum associated with the Fair Work Legislation Amendment
(Secure Jobs, Better Pay) Bill 2022 (Explanatory Memorandum) helpfully provides an
overview of the purpose of the changes to introduce the notion of an eligible protected action
ballot agent as follows:
“841. These amendments remove the AEC as the default PAB agent and empower the
FWC to ‘pre-approve’ a person as an ‘eligible PAB agent’. More than one person may
be approved by the FWC. The AEC is defined as an ‘eligible PAB agent’. and does not
need to be approved by the FWC. In effect, there may be a panel of alternative agents
who can be appointed as an alternative to appointing the AEC. The amendments also set
out the requirements when appointing a PAB agent that is not the AEC. These
amendments would require the FWC to regularly review and consider whether it remains
satisfied that the eligible PAB agent or agents meet the requirements at least every three
years.
842. This item would amend section 12 of the FW Act by inserting a new signpost
definition of ‘eligible PAB agent’. This new definition is particularly relevant to
determining who is an eligible PAB agent for the purposes of Division 8 of Part 3-3 of
the FW Act. The signpost definition is required due to the creation of a panel of PAB
agents proposed by Item IA16.”
[13] For reasons set out in a recent decision2 of the Commission, I find that a “person” in
s.444, s.468A and related provisions includes a corporation. This means that an eligible
protected action ballot agent may be an individual (natural person), a corporation, or the
Australian Electoral Commission (AEC), which is, in effect, approved directly by the Act. A
non-corporate or non-individual entity cannot be considered for approval as an eligible
protected action ballot agent by the Commission.
[14] Crowd Faction, as a corporation, is eligible to apply and be approved as an eligible
protected action ballot agent.
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3. Is Crowd Faction a fit and proper person?
[15] I begin with the consideration of what is a fit and proper person for present purposes.
[16] Section 444 and associated provisions of the Act aim to protect the interests of the
employees participating in the ballot and those of the employer(s) involved. Further, there is a
statutory imperative arising from the scheme of the Act that any ballot that might authorise the
taking of industrial action be conducted in a proper, democratic, prompt and robust manner by
agents that are appropriate to undertake that task.
[17] The Commission has found3 that the assessment of whether a proposed protected action
ballot agent is a fit and proper person should take place in that context. The test is whether a
person is fit and proper to conduct protected action ballots, not whether they are fit and proper
in some abstract sense. Further, and without being definitive, considerations that might inform
whether an applicant is a fit and proper person to be an eligible protected action ballot agent
might include (where relevant):
• The qualifications and experience of the individuals that lead the organisations
and/or those that are intended to conduct the ballots;
• The experience with conducting ballots and the absence of issues (non-
conformances) evident from that experience;
• The systems that are in place to ensure that ballots are conducted fairly,
democratically, and expeditiously by fit and proper individuals and which ensure the
integrity and privacy of the information provided to them by the parties;
• General standing within the community including whether they have a record of non-
compliance with workplace laws and the absence of criminal convictions; and
• Independence, or robust systems to ensure proper separation, from the interests and
influence of those whose members are being balloted and their employers.4
[18] Reference to “systems” above would include both information processes (technology
and security arrangements) and staffing systems. In addition, findings made by the Commission
as to whether the applicant is a fit and proper person for some equivalent ballot role or related
purpose would also be relevant.
[19] As to the assessment of the fit and proper person requirement in this case, I observe that
unlike each of the eligible protected action ballot agents approved to date, the Commission has
not previously been required to consider whether Crowd Faction is a fit and proper person to
conduct protected action ballots. That is, Crowd Faction has not previously been requested to
conduct PABO ballots under the Act. I make no adverse finding in that regard; however, this
means that the assessment must be made unaided by previous directly relevant decisions of the
Commission.
[20] The application was accompanied by Declarations from Mr Martin Cartwright, Director
of Crowd Faction. The material now before the Commission includes confirmation of extensive
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independent ballot and other professional experience of Crowd Faction including in relation to
enterprise agreement approvals and various elections. That material also confirms the processes
in place to ensure that all the individuals involved in the conduct of the ballots are, and will be,
fit and proper persons for that purpose. This includes evidence that all of the individuals
associated with its business, including those who would conduct an PABO ballots, hold police
clearances and undertake appropriate training and induction. Further, the Directors of the
business have never been charged or convicted of a criminal offence, also hold police
clearances, and have not been subject to adverse findings in relevant proceedings. In the case
of Mr Cartwright, I observe that he has previously been found by the Commission and its
predecessors to be a fit and proper person for various purposes under the Act including right of
entry5 and related matters. There is also no indication that any adverse findings have been made
in that connection.
[21] The material before the Commission also confirms to my satisfaction, general
consistency with the considerations set out earlier. This includes details about the nature of the
information and other systems to be used for the ballots of various types, and steps that will be
taken to ensure that the ballots are conducted fairly, democratically, and expeditiously by fit
and proper individuals. This involves, amongst other matters, the nature of the data storage
systems and associated practices, the supervision and training of staff, and the independence of
the organisation and those systems from the parties who are likely to be involved in future
PABOs.
4. Conclusions and approval
[22] Crowd Faction is entitled to apply, and I have found that it is a fit and proper person to
be approved as an eligible protected action ballot agent. I also consider that in all of the
circumstances, I should approve it to act in that capacity under the terms of the Act.
[23] The application is approved. Crowd Faction is approved as an eligible protected action
ballot agent under s.468A of the Act.
[24] Under s.468A(2) the approval must be in writing and this decision serves that purpose.
[25] This decision will be published, and the identity of Crowd Faction as an approved
eligible protected action ballot agent set out on the Commission’s website.
[26] In accordance with s.468A(4) of the Act, this approval will be reviewed by the
Commission at least each 3 years to ensure that the Commission remains satisfied that Crowd
Faction meets the requirements in s.468A(2).
[2023] FWC 1763
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DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
PR764394
1 Statement issued 5 June 2023.
2 Democratic Outcomes Pty Ltd T/A CiVS [2023] FWC 1400.
3 Ibid at [41].
4 Ibid at [42].
5 Under s.512 of the Act.
THE FAIR WORK COMMISSION AUSTRALLA THE SEAL
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwc1400.pdf
