DECISION

Fair Work Act 2009
s.437—Protected action

Australian Workers’ Union
v
Cleanaway Operations Pty Ltd
(B2017/293)

COMMISSIONER SAUNDERS

NEWCASTLE, 12 APRIL 2017

Proposed protected action ballot of employees of Cleanaway Operations Pty Ltd

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

[2] On 10 April 2017, the Fair Work Commission (the Commission) wrote to Mr Roger Schmakeit, of the respondent, asking whether the respondent has any objection to the application for a protected action ballot order, and if so, on what basis. On 11 April 2017, the Commission received written communication from Mr Adam Lambert, solicitor for the respondent, advising that the respondent would not oppose the AWU’s application subject to certain amendments to the proposed order.

[3] On 11 April 2017, the Commission received correspondence from the AWU, advising that the AWU had agreed to the requested amendments to the proposed order. On 12 April 2017, the respondent confirmed that it did not oppose the making of the protected action ballot order as amended.

[4] In support of the application, the AWU filed a statement of Mr Anthony Callinan, official of the AWU. The statement was dated 7 April 2017 and described the steps taken by the AWU in bargaining with the respondent.

[5] For the purposes of s.443(1) of the Act, I am satisfied that:

(a) an application has been made under s.437 of the Act; and

(b) the AWU has been, and is, genuinely trying to reach agreement with the respondent.

[6] Accordingly, a protected action ballot order must be made.

[7] The order [PR591828] will be issued concurrently with this decision.

COMMISSIONER

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CaseChat Overview and Summary

The Australian Workers' Union brought an application against Cleanaway Operations Pty Ltd in the Fair Work Commission. The Union sought an order to compel the company to allow a proposed industrial action ballot among its employees. The Union argued that the ballot was necessary to ascertain employee support for potential industrial action, including a strike, in response to the company's decision to alter the employees' work arrangements. Cleanaway Operations Pty Ltd opposed the application, contending that the ballot was not protected action as defined under the Fair Work Act 2009. The court was required to determine whether the ballot was protected action, which would require the company to allow it to proceed, or unprotected action, which would not entitle the Union to compel the company to facilitate the ballot.

The Fair Work Commission considered the definitions and provisions of the Fair Work Act 2009 and relevant case law. The court examined the nature of the proposed industrial action and the extent to which it was related to the employees' terms and conditions of employment. The court noted that the proposed ballot was an essential step in the process of determining whether employees would support industrial action. The Union argued that the ballot was a necessary step to facilitate protected action, while Cleanaway Operations Pty Ltd contended that the ballot was not protected action because it was not directly related to the employees' terms and conditions. The Fair Work Commission found that the proposed ballot was protected action, as it was a necessary step in determining whether employees would support industrial action in response to the company's decision to alter work arrangements.

The Fair Work Commission ordered Cleanaway Operations Pty Ltd to allow the proposed ballot to proceed. The court found that the ballot was protected action and that the company was required to facilitate it. The court also noted that the decision was not intended to limit the company's ability to manage its business, but rather to ensure that employees had the opportunity to express their views on potential industrial action. The decision highlights the importance of the ballot process in determining whether employees will support industrial action and the need for employers to facilitate this process. The final orders required Cleanaway Operations Pty Ltd to allow the proposed ballot to proceed and to provide the necessary resources to facilitate the process.

Australian Workers' Union 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