The Australian Workers' Union v Cleanaway Operations Pty Ltd Summary

[2022] FWC 3101

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.459—Protected action

The Australian Workers’ Union
v

Cleanaway Operations Pty Ltd

(B2022/1739)

VICE PRESIDENT CATANZARITI

SYDNEY, 22 NOVEMBER 2022

Application to extend the 30 day period in relation to B2022/1365

On 17 November 2022, the Australian Workers’ Union (Applicant) made an application to the Fair Work Commission (the Commission) pursuant to s.459(3) of the Fair Work Act 2009 (Cth) (the Act) to extend the 30 day period for protected action authorised by a protected action ballot order, PR745793 made on 13 September 2022. The Order applies to certain employees of Cleanaway Operations Pty Ltd (the Respondent).

The ballot result, by which a majority of the relevant employees endorsed the proposed forms of protected industrial action, was declared on 19 October 2022. Pursuant to s.459(1)(d)(i) of the Act, the 30 day period for protected action commenced on the date of the declaration of the results of the ballot and therefore expired at midnight on 17 November 2022.

On 21 November 2022, the Respondent advised the Commission via email that it does not oppose the Australian Workers’ Union’s application to extend the 30 day period for protected industrial action. Accordingly, I have determined the matter on the basis of the documentation filed.

In addressing s.459(3) of the Act, this application is made by the Australian Workers’ Union who is the Applicant for which the protected action ballot order was issued. Furthermore, the period specified in s.459(1)(d)(i) has not been previously extended.

On that basis and on the material before me, I am satisfied that each of the relevant requirements of s.459 of the Act have been met and that a 30 day extension is appropriate. As the 30 day period expires at midnight on 17 November 2022, the extension period will operate from 17 November 2022.

An order has been separately issued in PR748189.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers’ Union sought to extend the 30 day period for protected action authorised by a ballot order issued against Cleanaway Operations Pty Ltd. The Fair Work Commission was asked to determine whether the extension was appropriate under the Fair Work Act 2009. The key issue was whether the requirements of section 459(3) of the Act were satisfied, specifically whether the 30 day period had not been previously extended and whether the application was made by the union that had obtained the ballot order. The Commission found that the requirements had been met, and granted the application to extend the period.

In reaching its decision, the Commission noted that the 30 day period for protected action commenced on the date the ballot results were declared, which was 19 October 2022. As a result, the period expired at midnight on 17 November 2022. The Respondent did not oppose the application to extend the period. The Commission then considered section 459(3) of the Act and concluded that the requirements for an extension had been satisfied. The extension period would therefore operate from 17 November 2022.

The Commission ordered that the 30 day period for protected action authorised by the ballot order would be extended for an additional 30 days from 17 November 2022. The extension was granted on the basis that the requirements of section 459(3) of the Act had been met. The Respondent did not oppose the application and the Commission was satisfied that each of the relevant requirements had been satisfied. This decision allows the union to take protected action for an additional 30 days beyond the original period.

The Australian Workers' Union v Cleanaway Operations Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established