The Australian Workers' Union v Cleanaway Operations Pty Ltd

[2022] FWC 2442

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

The Australian Workers’ Union
v

Cleanaway Operations Pty Ltd

(B2022/1365)

VICE PRESIDENT CATANZARITI

SYDNEY, 13 SEPTEMBER 2022

Proposed protected action ballot of employees of Cleanaway Operations Pty Ltd

This is an application by the Australian Workers’ Union (Applicant) made under s.437 of the Fair Work Act 2009 (Cth) (Act) for a protected action ballot order in relation to certain employees of Cleanaway Operations Pty Ltd (Respondent).

On 13 September 2022, the Fair Work Commission was advised that the Respondent did not oppose 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 statutory declaration of Ben Horan of the Applicant declared on 9 September 2022, setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in s.443(1) of the Act have been met.

An Order has been separately issued in PR745793.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission (FWC) considered an application by the Australian Workers’ Union (AWU) for an order to allow a protected action ballot among certain employees of Cleanaway Operations Pty Ltd (Cleanaway). The AWU sought the ballot to facilitate negotiations for a new enterprise agreement with Cleanaway. The application was made under section 437 of the Fair Work Act 2009 (FW Act). Cleanaway did not oppose the application, resulting in the matter being decided on the papers without a hearing.

The primary legal issue before the FWC was whether the AWU had satisfied the requirements of section 437 of the FW Act to obtain an order for a protected action ballot. Under the Act, the AWU needed to demonstrate that it had been genuinely trying to reach agreement with Cleanaway, and that there was a notification time in relation to the proposed agreement. The AWU provided a statutory declaration by Ben Horan, outlining the bargaining steps taken and asserting that it had been genuinely attempting to reach an agreement. The FWC accepted the AWU's submission, finding that the statutory requirements had been met.

The FWC found that the AWU had met the statutory requirements for a protected action ballot order under section 437 of the FW Act. The Commission was satisfied that the AWU had been genuinely trying to reach an agreement with Cleanaway and that a notification time was in place. Consequently, the FWC granted the application and issued an order allowing the ballot to proceed. The specific details of the ballot order were set out in a separate order issued in PR745793.

No additional orders were made beyond the granting of the protected action ballot order. The decision ensures that the AWU can proceed with the ballot as part of its negotiations for a new enterprise agreement with Cleanaway.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established