Cleanaway Operations Pty Ltd v Transport Workers' Union of Australia

[2020] FWC 6226

[2020] FWC 6226

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.418—Industrial action

Cleanaway Operations Pty Ltd
v
Transport Workers’ Union of Australia
(C2020/8431)

COMMISSIONER MCKINNON MELBOURNE, 19 NOVEMBER 2020

Alleged industrial action at Cleanaway Operations Pty Ltd – whether industrial action protected where individual employees stop work for less than period of authorised stoppage of work.

[1] On Wednesday 18 July 2020, Cleanaway Operations Pty Ltd applied under section 418 of the Fair Work Act 2009 (Act) for orders that unprotected industrial action not occur and not be organised. Cleanaway is the employer concerned and is directly affected by the industrial action. The orders sought are directed at the Transport Workers’ Union and employees of Cleanaway who are members of the Union and listed in Annexure A.

[2] The employees are covered by the Cleanaway Moreton Bay Region Enterprise Agreement 2017 1 which has a nominal expiry date of 30 May 2020.

[3] On 25 September 2020, the Commission issued a protected action ballot order covering Cleanaway and affected employees. The Australian Electoral Commission conducted a protected action ballot, the results of which were declared on 9 November 2020. Employees voted to approve protected industrial action of the following kinds:

1. An unlimited number of periodic or indefinite bans on the working of overtime;

2. An unlimited number of periodic or indefinite bans on servicing bins that are overloaded and/or have bin lids open;

3. An unlimited number of periodic or indefinite bans on cleaning/picking up waste around bins;

4. An unlimited number of periodic or indefinite bans on servicing bins that require the driver to move the bin from behind a car or other obstruction;

5. An unlimited number of stoppages of work for two hours;

6. An unlimited number of stoppages of work for 24 hours; and

7. An unlimited number of indefinite stoppages of work.

[4] It is the industrial action listed at item 5. above that is the subject of this application.

[5] On 16 November 2020, the Union notified Cleanaway of two forms of proposed protected industrial action, including “a stoppage of work for two (2) hours commencing at 5.00am on Friday 20 November 2020”.

[6] Cleanaway interprets the notice as meaning that employees will stop work for two hours from 5.00am to 7.00am on Friday 20 November 2020. It submits that employees who have commenced work on or prior to 5.00am on that day will be able to stop work for two hours, meaning that their industrial action will be authorised by the protected action ballot. However, employees who commence work after 5.00am will be unable to stop work for the full two hour period (which ends at 6.59am). Their industrial action will be unprotected on the basis that it is not authorised by the protected action ballot which does not provide for any stoppage of work of less than two hours. Cleanaway seeks orders to restrain employees whose shift commences after 5.00am on 20 November 2020 from taking protected industrial action on that day (being the large majority of employees).

[7] The Union submits that its notice of industrial action is specific and clear in terms. It provides for a stoppage of work for two hours commencing at 5.00 am on 20 November 2020, referring to the period of time during which its members will collectively engage in a stoppage of work. The Union submits that there is no requirement for all affected employees to stop work for the full two hours. If that were the case, separate notices of industrial action would be required for each employee who wished to participate in the industrial action - a suggestion for which there is no precedent. The Union also draws the analogy of a 24 hour stoppage of work, during which employees refuse to work any rostered shifts that fall within the relevant 24 hour period, but individual employees do not actually stop work for 24 hours.

Consideration

[8] On 16 November 2020, the Union sent its notice of industrial action to Cleanaway’s Moreton Bay Depot Manager by email. The notice is in clear terms and while it does not specify the place of work affected by the particular industrial action, it can be read as applying to the Moreton Bay Depot because it identifies the recipient of the notice by organisational position and because of the context in which it is given. The notice confirms that industrial action in the form of a two hour stoppage of work by union members is both impending and probable from 5.00am on Friday, 20 November 2020. The foreshadowed stoppage will be both a ban on the performance of work and a refusal to perform any work by employees who are members of the Union and who are rostered to attend for work in the two hour period from 5.00am to 6.59am on that day.

[9] The employees who are members of the Union and who are rostered to work from the Moreton Bay Depot during those hours on Friday, 20 November 2020 are listed at Annexure A.

[10] The industrial action is not authorised or agreed to by Cleanaway.

[11] The action is not proposed to be taken by employees based on reasonable concerns about imminent risks to their health or safety.

[12] The action is proposed to be taken by the employees in the table above and it is being organised by the Union.

Meaning of ‘stoppages of work’

[13] The effect of Cleanaway’s submission is that “stoppages of work” authorised by the protected action ballot in this case must be read as pertaining individually to the employees concerned, as opposed to collectively. I do not accept the submission. The term “stoppages of work” in the protected action ballot must be given its ordinary meaning and is wide enough to encompass both stoppages of work by individual employees and stoppages of work generally in the relevant workplace or part of the workplace.

[14] In the Union’s notice of industrial action, the term “stoppage of work” is used to refer to a general stoppage of work by Union members “for two hours commencing at 5.00am on Friday 20 November 2020”. This is consistent with a type of industrial action authorised by the protected action ballot. It means that work will stop for two hours commencing at 5.00am and ending immediately prior to 7.00am. During this period, there will be no performance of any rostered work by any affected employee.

[15] In my view, affected employees who refuse to perform rostered work during the period from 5.00am to 6.59am on Friday 20 November 2020 will be taking industrial action that is authorised by the protected action ballot, whether the actual duration of their individual industrial action is two hours or less.

Interaction with prohibition on payment for industrial action

[16] Cleanaway submits that if employees are able to withdraw their labour for less than the authorised two hour stoppage period, unintended consequences will flow from the operation of section 470 of the Act, which prohibits payment for periods of protected industrial action.

[17] It is not necessary to determine the question for present purposes. I would simply observe that section 470 prohibits the making of “a payment to an employee in relation to the total duration of the industrial action on that day”. The prohibition applies to payments that would otherwise be made to the employee in relation to the two hour period affected by the stoppage of work, had they worked during that period. 2 In this case, the effect of section 470 is likely to be different for individual employees, depending on their rostered hours of work during that period.

Conclusion

[18] It does not appear to me that the proposed industrial action by employees who are rostered to commence work between 5.01am and 6.59am on Friday 20 November 2020 will be industrial action of a kind that is not protected industrial action.

[19] The application is dismissed.

COMMISSIONER

Appearances:

S Edwards for the Applicant
M Cerrato for the Respondent

Hearing details:

2020.
Melbourne (video hearing):
November 18, 19.

Printed by authority of the Commonwealth Government Printer

<PR724719>

Annexure A

List of affected employees

1	Bruce Feeney
2	Dallas Weller
3	Craig Jones
4	Jay Mallett
5	Graeme O’Sullivan
6	Richard Stevens
7	Myles Collings
8	Wayne Pearman
9	Brendon Kendall
10	Luke Buckett
11	Noel Hoani
12	Brett Doyle
13	Noel Hughes
14	Peter Lynch
15	Allan Howard
16	Paul Smith
17	Bradley Higgins
18	Adam Gardiner
19	Cassandra Hughes
20	Daryl White
21	Samantha Davis
22	Ross Wright
23	Cory Fearn
24	Owen Seloti
25	Brett Uebergang
26	Mark Taylor
27	Nathan Aylward
28	Mark Hayes
29	Richard Burton
30	Shannon Dunne
31	Wayne Jarvis
32	Barry Vincent
33	Philip Holywell
34	Russell Cook

 1   AE425484

 2   Construction, Forestry, Mining and Energy Union v MammoetAustralia Pty Ltd [2013] HCA 36, (2013) 248 CLR 619