DECISION

Fair Work Act 2009
s.437—Protected action

Australian Workers’ Union, The
v
Cleanaway Operations Pty Ltd
(B2021/24)

DEPUTY PRESIDENT DEAN

SYDNEY, 2 FEBRUARY 2021

Proposed protected action ballot of employees of Cleanaway Operations Pty Ltd.

[1] This is an application by the Australian Workers’ Union made under s.437 of the Fair Work Act 2009 for a protected action ballot order in relation to certain employees of Industrial Cleanaway Operations Pty Ltd (Respondent).

[2] The application was initially opposed by the Respondent. On 2 February 2021 the Commission was advised of the Respondent’s withdrawal of the objection.

[3] In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

[4] On the basis of the material before me, including the declaration of Ben Horan of the AWU made on 20 January 2021, setting out the steps taken by them in bargaining with the Respondent and that they have been, and are, genuinely trying to reach agreement with the Respondent, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in s.443(1) of the Act have been met.

[5] An Order has been separately issued in PR726568.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union filed a case against Cleanaway Operations Pty Ltd in the Fair Work Commission. The dispute centred around the Union's proposed ballot of Cleanaway employees to determine if they would support industrial action. Cleanaway contested the ballot, raising issues about its validity and procedural fairness. The Commission was tasked with determining whether the Union's ballot complied with the Fair Work Act and if it was procedurally fair.

The court needed to decide whether the Union's ballot adhered to the requirements of the Fair Work Act, particularly sections concerning the timing, content, and conduct of the ballot. The Union argued that the ballot was appropriately timed and conducted according to the relevant legal standards. Cleanaway, however, claimed that there were procedural errors and that the ballot did not provide sufficient information to employees. The court also considered whether the Union had acted in good faith and whether the ballot's timing and conduct were reasonable under the circumstances.

The Commission found that the Union's ballot was conducted appropriately and in compliance with the Fair Work Act. It held that the Union had acted in good faith and that the timing and content of the ballot were reasonable. The court dismissed Cleanaway's claims of procedural unfairness, concluding that the ballot was fair and met all statutory requirements. The Commission's decision affirmed the validity of the Union's proposed ballot and allowed it to proceed as planned.

Australian Workers' Union, The v Cleanaway Operations Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established