Australian Workers' Union v Cleanaway Operations Pty Ltd

[2024] FWC 1170

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Workers' Union
v

Cleanaway Operations Pty Ltd

(B2024/506)

COMMISSIONER TRAN

MELBOURNE, 6 MAY 2024

Proposed protected action ballot of employees of Cleanaway Operations Pty Ltd

On 2 May 2024, the Australian Workers’ Union (AWU or Applicant) applied under s 437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Cleanaway Operations Pty Ltd (Cleanaway or Employer).

Also on 2 May 2024, Cleanaway advised the Commission that it objected to the application on the grounds that the AWU was prematurely seeking to take industrial action. However, on 6 May 2024, following correspondence from the Commission, Cleanaway advised that it would not press its objection.

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

On the basis of the material before me, including the declaration of Ben Horan, Organiser, setting out the steps taken by the AWU in bargaining with Cleanaway and that it has been, and is, genuinely trying to reach agreement with Cleanaway, I am satisfied that the AWU has standing to make the application and that there is a notification time in relation to the proposed agreement. I am also satisfied that all the requirements in s 443(1) of the Act have been met.

In ascertaining whether an applicant is genuinely trying to reach agreement, the Full Bench in Esso Australia Pty Ltd v AMWU, CEPU and AWU[1] agreed with an earlier Full Bench[2] that it is not appropriate to establish rigid rules for a required point of negotiations to be reached. Indeed, in the decision of the Full Federal Court in J.J. Richards Sons Pty Ltd and Another v Fair Work Australia and Another, there is no requirement in s 443 for bargaining to have commenced.[3]

In this matter, bargaining has commenced and at least 6 meetings have been held, and future bargaining meetings are scheduled. I am thus satisfied that the pre-conditions for making the order have been met.

The ballot is to be conducted by the Australian Electoral Commission (AEC).

For the purposes of s 443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 18 June 2024, which is 30 working days from the date of the Order, as sought in the application. This also establishes the ballot period for the purpose of s 448A(2) of the Act.

An Order has been separately issued in PR774543.

COMMISSIONER

[1] [2015] FWCFB 210 at [35].

[2] Total Marine Services Pty Ltd v Maritime Union of Australia[2009] FWAFB 368; (2009) 189 IR 40 at [32].

[3] (2012) 201 FCR 297 at [30]-[31].

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union (AWU) applied to the Fair Work Commission for a protected action ballot order under section 437 of the Fair Work Act 2009 in relation to certain employees of Cleanaway Operations Pty Ltd (Cleanaway). Cleanaway initially objected to the application, arguing that the AWU was prematurely seeking to take industrial action. However, following correspondence from the Commission, Cleanaway decided not to press its objection, allowing the Commissioner to determine the matter on the papers without a hearing. The AWU sought the order on the basis that it had been genuinely trying to reach an agreement with Cleanaway through bargaining, and that there was a notification time in relation to the proposed agreement.

The central legal issue for the Commissioner was to determine whether the AWU genuinely sought to reach an agreement with Cleanaway and whether the pre-conditions for the making of the order were met. The Commissioner considered that it was not necessary for rigid rules to govern the point at which negotiations should reach a certain stage, referencing the decision in Esso Australia Pty Ltd v AMWU, CEPU and AWU. The Commissioner was satisfied that the AWU had been genuinely trying to reach an agreement, evidenced by at least six meetings and scheduled future meetings. The Commissioner noted that the commencement of bargaining was sufficient and that there was no requirement for bargaining to have commenced under section 443.

Given the evidence of genuine bargaining efforts and the satisfaction of the statutory requirements, the Commissioner decided to grant the AWU's application. The ballot was to be conducted by the Australian Electoral Commission (AEC), with voting to close on 18 June 2024, which is 30 working days from the date of the Order as sought in the application. This date also establishes the ballot period for the purpose of section 448A(2) of the Act. An Order was subsequently issued in PR774543.

The Commissioner's decision was based on the demonstrated efforts of the AWU to engage in good faith negotiations with Cleanaway, and the absence of any valid objection from Cleanaway after initially raising concerns. The Commissioner concluded that all the necessary conditions for a protected action ballot order had been met, and granted the application accordingly.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established