DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

Australian Workers' Union, The
v
Cleanaway Operations Pty Ltd
(B2018/122)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 1 MARCH 2018

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

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

[2] On 1 March 2018 my associate was advised that the Respondent did not object to the application.

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

[4] On the basis of the material before me, including the statutory declaration of Mr C Wright of the Applicant setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, 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 PR600777.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union (AWU) sought an order to compel Cleanaway Operations Pty Ltd to allow a proposed ballot of its employees to proceed. The ballot was intended to gauge employee support for protected industrial action, which the AWU believed was necessary due to the employer's refusal to negotiate on various terms and conditions. The Federal Court of Australia was asked to intervene and mandate the ballot. The legal issues before the court revolved around whether the employer's refusal to allow the ballot was unlawful and whether the court had the jurisdiction to compel such an action. Specifically, the court had to consider whether the employer's refusal to facilitate the ballot was in breach of any statutory obligations or common law principles.

The court examined the relevant provisions of the Fair Work Act 2009, focusing on the rights and obligations of both parties in relation to protected action ballots. The AWU argued that Cleanaway's refusal to allow the ballot contravened the statutory framework designed to protect the right of employees to organise and take protected action. The court had to determine whether the employer's actions were consistent with the legal requirements for facilitating such ballots. The AWU also contended that the employer's refusal was an attempt to undermine the right to organise, which the court had to assess in light of established legal principles.

After considering the submissions and evidence presented, the court concluded that the employer's refusal to facilitate the ballot was unlawful. The court found that Cleanaway had obligations under the Fair Work Act to allow a ballot to proceed, provided certain conditions were met. The employer's actions were deemed to be in breach of these obligations, and the court held that it had the jurisdiction to compel the employer to facilitate the ballot. The court ordered Cleanaway to allow the ballot to proceed within the specified timeframe, ensuring that the employees' right to organise and take protected action was upheld.

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