Australian Workers' Union v Cleanaway Operations Pty Ltd

[2022] FWC 385

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Workers’ Union
v

Cleanaway Operations Pty Ltd

(B2022/100)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 23 FEBRUARY 2022

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

This is an application by the Australian Workers’ Union (Applicant) made 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 (Respondent).

On 22 February 2022, my Associate was advised that the Respondent objected to the application. The matter was listed for Mention before me at 3:30pm on 24 February 2022. The Respondent advised it would be willing to consent to the Application being granted if the Applicant would be willing to consent to the removal of the proposed industrial action outlined in question 6 of clause 5 of the proposed draft order. The Applicant subsequently consented to the removal of the question. As such, the parties were able to reach a consent position at the Mention.

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 Mr Michael Shane Hopgood 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.

An order has been separately issued in PR738673.

DEPUTY PRESIDENT

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 in relation to certain employees of Cleanaway Operations Pty Ltd (Cleanaway). The application was made under section 437 of the Fair Work Act 2009 (FW Act). The AWU sought to ballot its members in Cleanaway for protected action, potentially leading to a strike, due to ongoing disputes with the employer over workplace issues. Cleanaway objected to the application, but later agreed to consent to the granting of the application if the AWU removed a specific proposed industrial action from the ballot.

The legal issues the court needed to decide included whether the AWU had complied with the notification requirements and whether it had genuinely tried to reach an agreement with Cleanaway before applying for the ballot. The court examined the declaration of Mr Michael Shane Hopgood of the AWU, which outlined the steps taken by the AWU in bargaining with Cleanaway and confirmed that the AWU had genuinely tried to reach an agreement. The court also considered whether the FW Act’s requirements for a protected action ballot had been satisfied, particularly focusing on section 443(1) of the FW Act.

The Deputy President determined that the AWU had met the notification time and the requirements of section 443(1) of the FW Act. Given the consent reached between the AWU and Cleanaway at the Mention, the Deputy President decided to determine the matter on the papers without holding a hearing. Consequently, the application was granted with the condition that the specific proposed industrial action be removed from the ballot.

An order was issued in PR738673, allowing the AWU to proceed with the protected action ballot, subject to the removal of the specified industrial action as per the agreement between the parties.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established