Mandatory Secret Ballots Before Employee Industrial Action

Abstract

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 the emerging case law on it. Competing rationales for the law are considered, particularly individualist notions of democracy and the repression of strike action. These rationales are considered in the light of the law's interference with freedom of association. Unlike previous efforts to mandate voting procedures in union affairs, this regime was not introduced at a time of industrial unrest or economic downturn, but at a time of record low industrial action. Its chief practical effect is to give employers additional notice of likely industrial action, and to enhance enforcement of a one-sided, quasi good-faith bargaining regime on unions. Outside that, its purpose is largely symbolic. It reflects a view that industrial action should at best be tolerated as a last-resort in a bargaining impasse, a view that has achieved bi-partisan status with Labor's endorsement of the regime.