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Enterprise Bargaining in NSW: Step 5

Step 5 - Conducting a Secret Ballot

General Information

A secret ballot must be conducted if the enterprise agreement is negotiated between the employer and his or her employees i.e. where a union is not a party to the agreement.

When are secret ballots required?

Secret ballots are required in the following circumstances:

1. To obtain approval for the enterprise agreement from the individual employees.
   The ballot paper will ask the question "Do you approve the provisions in the enterprise agreement?". The ballot paper will then instruct the employee to indicate their wishes by placing a tick (_) in the appropriate box.
   See Ballot Paper No 1 in Appendix 2 of this Guide for an example.
   
   
2. To vary an agreement (for more information about varying an agreement, see Step 8)
   The ballot paper will ask the question "Do you support the attached variation/s to the enterprise agreement?". The ballot paper will then instruct the employee to indicate his/her wishes by placing a tick (_) in the appropriate box.
   See Ballot Paper No 2 in Appendix 3 of this Guide for an example
   
   
3. To terminate an agreement (for more information about terminating an agreement, see Step 8)
   The ballot paper will ask the question "Do you support the termination of the enterprise agreement?". The ballot paper will then instruct the employee to indicate his/her wishes by placing a tick (_) in the appropriate box.
   See Ballot Paper No 3 in Appendix 4 of this Guide for an example.

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Conduct of secret ballot

Section 37 of the Act and the Principles for approving enterprise agreements provide that:

1. the returning officer must be a person who is not the employer or a person selected by the employer;
2. to be eligible to vote, the person must be an employee who is to be covered by the agreement at the time that the ballot is conducted;
3. each eligible employee must vote only once in a ballot;
4. the employees must be able to vote in secret;
5. time/times must be fixed for the ballot which enables all eligible employees the opportunity to vote where practicable;
6. the ballots must be secure until counting commences;
7. the returning officer must count and declare the result of the ballot;
8. ballots must be retained until after the agreement is processed by the Commission.

   The conditions of the ballot should usually include that:

9. each ballot form be initialled by the returning officer;
10. counting not commence until the ballot closes; and,
11. scrutineers may observe the count of the ballot papers.

In addition, the Commission may inspect the ballot papers. (Please see guide for Returning Officers).

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NSW Electoral Office

The Elections Unit of the Electoral Office will conduct secret ballots on behalf of employees at a reasonable cost.

The Electoral Unit is located at: Level 2, 1 Francis Street, Darlinghurst.
Telephone number: 1800 043 188

The postal address of the State Electoral Office is: GPO Box 832, SYDNEY NSW 2001.

Complaints about the Secret Ballot.

Employees who are entitled to vote have the right to complain if they feel that there are irregularities in the conduct of a ballot relating to the making, variation or termination of an enterprise agreement.

The Industrial Registrar must receive complaints in writing within 14 days of the ballot. This time may be extended in special cases. If the Registrar receives a written complaint from at least 20% of those entitled to vote, a further secret ballot may be conducted by an independent person and the result of the ballot supplied to him/her.

The Industrial Relations Commission may adjourn any proceedings relating to an enterprise agreement if a request has been made for a further secret ballot.

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The Essentials for Returning Officers

Below is a guide for returning officers which will assist them in conducting a secret ballot that meets the requirements of the Act and the Principles.

Prior to the poll

1. Prepare or obtain a roll of employees in the trades or occupations concerned in the proposed agreement.
2. Obtain and confirm the information i.e. questions to go on the ballot papers. Ensure that the instructions on how to complete the ballot paper are clear and easily understood.
3. Prepare a sufficient number of ballot papers for the ballot.
4. Initial the back of each ballot. This helps ensure that only papers issued by the Returning Officer are counted in the ballot and that the ballot is not tampered with.
5. Check that there are a sufficient number of suitable ballot boxes.
6. Arrange areas where the ballot will take place. Ensure that the papers can be completed and despatched in private.

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Postal Votes

1. If necessary, the returning officer must issue postal votes or ensure that postal votes are issued. Check off the roll those employees who have been sent a postal vote.
2. Initial the back of each ballot. This helps ensure that only papers issued by the Returning Officer are counted in the ballot and that the ballot is not tampered with. See that an envelope addressed to the Returning Officer is included for the return of the ballot paper.

At the poll

1. Check off each intending voter from the roll and issue them with a ballot paper. Initial the back of each ballot paper.
2. Ensure that the papers can be completed and despatched in private, without intimidation or interference.
3. When the poll is complete ensure the ballot papers are kept in a secure place.

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After the poll

1. With scrutineers present (if applicable), count and sort into categories all votes including postal votes. The ballot papers should not be counted until the ballot is declared closed by the returning officer (i.e. when all votes on the roll are returned).
2. Allow a reasonable time for the return of postal votes (it is suggested that at least 2 weeks be given).
3. Double check the result.
4. Declare the poll and prepare the return (see next section).

The return must contain the following information:

1. Date of Secret Ballot;
2. General description of eligible voters (occupational categories, workplace locations);
3. Number of ballot papers issued;
4. Number of ballot papers returned completed;
5. Number of papers not returned;
6. Number of papers improperly completed;
7. Number and percentage of approving voters;
8. Name and address of returning officer;
9. Brief description of how the ballot was conducted.

In addition to the return, ensure that the original roll marked with those participating in the poll and all the ballot papers are kept in a secure place. They may be needed as evidence if there is any query about the conduct of the ballot.

Option 2- the employees Please proceed to Step 6.