1
Fair Work Act 2009
s.468A - Application for an eligible protected ballot agent
IR Balloting Pty Ltd t/as IR BLOTS
(B2023/1217)
DEPUTY PRESIDENT HAMPTON ADELAIDE, 24 NOVEMBER 2023
Application for IR Balloting Pty Ltd t/as IR BLOTS to become an eligible protected action
ballot agent.
1. The nature of this application
[1] IR Balloting Pty Ltd t/as IR BLOTS (IR Blots or Applicant) 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 in effect,
subject to the Act and the capacity for another (non-eligible) agent to be approved in exceptional
circumstances, be obliged to 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 6 November 2023. Shortly thereafter, the Commission
stated on its website that IR Blots had made the application and that interested parties could
make submissions before the closing date of 14 November 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. An advice to
subscribers of the Commission’s updates on bargaining matters was also issued in relation to
this application.
[2023] FWC 3067
DECISION
AUSTRALIA FairWork Commission
[2023] FWC 3067
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[5] No additional submissions have been received in relation to this application. In any
event, it remains necessary for the Commission to consider whether IR Blots has established
that 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 IR Blots 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 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.
[2023] FWC 3067
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Note Under subsection 414(1), before a person engages in employee claim
action for a proposed enterprise agreement, a bargaining
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.
[2023] FWC 3067
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Independent advisor
(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 relevant 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.
[2023] FWC 3067
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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 IR Blots, 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 an earlier 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] IR Blots, as a corporation, is eligible to apply and be approved as an eligible protected
action ballot agent.
[2023] FWC 3067
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3. Is IR Blots 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 most of the eligible protected action ballot agents approved to date, the Commission has
not previously been required to consider whether IR Blots is a fit and proper person to conduct
protected action ballots. That is, IR Blots 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 largely unaided by previous directly relevant decisions of the
Commission.
[20] The application was accompanied by a Declaration from Ms Rebecca Pezzuti, Director
of IR Blots. I observe that Ms Pezzuti is an admitted solicitor with a current principal practicing
[2023] FWC 3067
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certified issued by the Queensland Law Society. Ms Pezzuti has responsibility for the
management of the Applicant and supervision of the ballot services and has extensive
experience in the conduct of industrial relations ballots.
[21] IR Blots owns proprietary software that has been purpose built for conducting industrial
relations ballots. The system is known as BLOTS. BLOTS has been utilised for many years as
part of another entity IRIQ Pty Ltd (IRIQ) and has been transferred to the Applicant. I observe
that, at least by implication, the BLOTS software has been accepted by the Commission as
forming part of a ‘fit and proper person’ for many earlier approved PABO applications.5
[22] The conduct of the ballots will be undertaken by a dedicated balloting officer (Anantha
Anu).
[23] The material now before the Commission includes confirmation of independent ballot
and other professional experience within IR Blots including in relation to enterprise agreement
employee approvals and PABOs. 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 and staff 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 Anantha Anu,
I observe that the Commission has expressly previously found6 satisfaction with the fit and
proper person test for the conduct of PABOs.
[24] 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 recruitment, supervision and training of staff – including
any new staff, and the independence of the organisation and those systems from the parties who
are likely to be involved in future PABOs.
[25] Further, the personal information of eligible voters and other parties is managed in
accordance with the Applicant’s obligations under the Privacy Act 1998 (Cth) and the
Australian Privacy Principles, and its own compliant privacy policy.
4. Conclusions and approval
[26] IR Blots 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.
[27] The application is approved. IR Balloting Pty Ltd is approved as an eligible protected
action ballot agent under s.468A of the Act.
[28] Under s.468A(2) the approval must be in writing and this decision serves that purpose.
[2023] FWC 3067
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[29] This decision will be published, and the identity of IR Blots as an approved eligible
protected action ballot agent set out on the Commission’s website.
[30] 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 IR Blots
meets the requirements in s.468A(2).
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
PR768532
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 IRIQ has on many occasions been approved as an agent to conduct PABOs under the former fit and proper person test that
applied prior to the Amending Act.
6 “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing
Workers’ Union (AMWU) v Visy Board Pty Ltd [2022] FWC 3053 at [5].
THE FAIR WORK COMMISSION AUSTRALLA THE SEAL
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwc1400.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2022fwc3053.htm
