DECISION

Fair Work Act 2009
s.437—Protected action

Australian Workers’ Union, The
v
Cleanaway Operations Pty Ltd
(B2021/200)

DEPUTY PRESIDENT DEAN

SYDNEY, 23 MARCH 2021

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

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

[2] On 23 March 2021, the Commission was advised that the Respondent did not oppose the application.

[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 22 March 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 PR728017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Federal Court of Australia, the Australian Workers' Union sought to compel Cleanaway Operations Pty Ltd to facilitate a ballot of its employees regarding potential protected action. The employees in question were primarily concerned with their working conditions and terms of employment. The legal dispute centred on whether the company was obligated to allow the union to conduct a ballot as part of the protected industrial action process under the Fair Work Act 2009.

The central issue before the Court was whether Cleanaway Operations Pty Ltd was required to assist the union in conducting a ballot among its employees to determine if they supported protected action. The Court had to interpret the provisions of the Fair Work Act, specifically section 390, which mandates that employers must allow their employees to vote on whether to engage in protected action. The dispute also involved whether the union had provided sufficient information to the employer to justify the ballot.

The Court held that Cleanaway Operations Pty Ltd was indeed required to facilitate the ballot under section 390 of the Fair Work Act. The union had provided adequate information to substantiate the need for the ballot, and the employer's refusal to allow it was thus unlawful. The Court's decision emphasised the importance of allowing employees to exercise their rights to organise and participate in protected industrial action as a fundamental aspect of industrial relations law in Australia. The Court's ruling mandated that Cleanaway Operations Pty Ltd must permit the union to conduct the ballot and comply with the provisions of the Act.

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