| [2024] FWC 1763 |
| 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
(B2024/846)
| DEPUTY PRESIDENT HAMPTON | ADELAIDE, 4 JULY 2024 |
Proposed protected action ballot of employees of Cleanaway Operations Pty Ltd
This is an application by the Australian Workers’ Union (AWU or 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 (Cleanaway or Employer).
On 4 July 2024, the Commission was advised that the Employer, in effect, did not object to the Application.
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 the Employer and that it has been, and is, genuinely trying to reach agreement with it, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.
The ballot is to be conducted by the Australian Electoral Commission.
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 15 August 2024.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.
An Order has been separately issued in PR776712.
This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. That Member will issue an Order requiring the attendance of all bargaining representatives in the proposed enterprise agreement at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.
DEPUTY PRESIDENT
[1] This is, in effect, 30 working days from the making of the Order, which is the period sought in the application and that required by the AEC.
Printed by authority of the Commonwealth Government Printer
<PR776713>
- AGLC
- Australian Workers' Union v Cleanaway Operations Pty Ltd [2024] FWC 1763
- Case
- [2024] FWC 1763
- Decision Date
CaseChat Overview and Summary
The FWC had to determine whether the AWU met the statutory requirements for a protected action ballot, specifically under section 443(1) of the Act. This involved assessing whether a notification time existed in relation to the proposed agreement and if the AWU had genuinely attempted to reach an agreement with Cleanaway. The Commission also needed to set a closing date for the ballot voting, in line with section 443(3)(c) of the Act, which also impacts the duration of the ballot period under section 448A(2) of the Act.
The Deputy President Hampton was satisfied, based on the declaration of Ben Horan, the AWU Organiser, that all requirements for the ballot had been fulfilled. Consequently, the Commission granted the application and ordered that the ballot be conducted by the Australian Electoral Commission. The closing date for voting was set as 15 August 2024, ensuring a ballot period of 30 working days from the issuance of the order. Additionally, the matter was assigned to another FWC member to oversee the compulsory conciliation conference under section 448A, aimed at facilitating meaningful negotiations between the parties.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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