The Australian Workers' Union v Cleanaway Operations Pty Ltd

[2024] FWC 1141

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

The Australian Workers' Union
v

Cleanaway Operations Pty Ltd

(B2024/502)

COMMISSIONER TRAN

MELBOURNE, 6 MAY 2024

Proposed protected action ballot of employees of Cleanaway Operations Pty Ltd

On 30 April 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 Operation Pty Ltd (Cleanaway or Employer) in the employer’s Solid Waste Business Unit.

On 2 May 2024, Cleanaway advised the Commission that it objected to the Application on the grounds that the Application was premature.

I listed the matter for conference/hearing at 10:00am on Monday 6 May 2024. Mr Simon Miller represented the AWU. Ms Sonja Smith and Ms Neddie Agdon represented Cleanaway. At the conference, Cleanaway advised me that it withdrew its objection.

On the basis of the material before me, including the declaration of Fez Riches, 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 Applicant 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.

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 PR774431.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union applied to the Fair Work Commission for a protected action ballot order regarding certain employees of Cleanaway Operations Pty Ltd. The application was made under section 437 of the Fair Work Act 2009, and the proposed ballot concerned employees in Cleanaway's Solid Waste Business Unit. Cleanaway initially objected to the application, arguing it was premature, but later withdrew its objection. The matter was listed for a conference and hearing on 6 May 2024.

The primary legal issue before the Commission was whether the Australian Workers' Union had standing to apply for the ballot and if the requirements under section 443(1) of the Fair Work Act were met. The Commission needed to determine if the Union had genuinely attempted to reach an agreement with Cleanaway, and if the notification period for the proposed agreement was correctly identified. Additionally, the Commission had to set a closing date for the voting period in accordance with section 443(3)(c) of the Act.

The Commission found that the Australian Workers' Union had standing to apply for the ballot, as evidenced by the declaration of Fez Riches, Organiser, which detailed the bargaining efforts and genuine attempts to reach an agreement with Cleanaway. The Commission was also satisfied that all requirements under section 443(1) of the Act had been met. The Australian Electoral Commission was designated to conduct the ballot. The Commission set the closing date for voting as 18 June 2024, which is 30 working days from the date of the order, fulfilling the requirements of section 443(3)(c) of the Act.

An order was issued in separate proceedings under PR774431, and the Australian Electoral Commission will conduct the ballot by the specified closing date.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established