The Australian Workers' Union v Cleanaway Operations Pty Ltd Summary

[2022] FWC 522

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

The Australian Workers’ Union

Cleanaway Operations Pty Ltd

(B2022/169)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 8 MARCH 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 (Act) for a protected action ballot order in relation to certain employees of Cleanaway Operations Pty Ltd. (the Respondent).

On 8 March 2022, my Associate was advised that the Respondent 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 Mr Shane Karger of the Applicant 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 PR739142.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union has applied to the Fair Work Commission under section 437 of the Fair Work Act 2009 for an order to permit a ballot of employees of Cleanaway Operations Pty Ltd in relation to proposed protected industrial action. The Commission was asked to decide whether the union had met the requirements for such a ballot, including the need to negotiate in good faith with the employer and to give requisite notice of the proposed agreement. The application was determined on the papers, as the employer did not object.

The legal issues before the Commission were whether the union had genuinely attempted to negotiate with the employer in good faith, and whether the requisite notice of the proposed agreement had been given. The union submitted that it had been negotiating in good faith with the employer and had provided the requisite notice of the proposed agreement. The employer did not object to the application, effectively conceding these points.

The Commission found that the union had indeed negotiated in good faith and had provided the requisite notice of the proposed agreement. The Commission was satisfied that the union had taken all necessary steps in accordance with the Act and that the requirements for a ballot of employees had been met. The Commission therefore determined to grant the union’s application for a ballot order.

The Fair Work Commission has made an order under section 437 of the Fair Work Act 2009 permitting the Australian Workers' Union to conduct a ballot of employees of Cleanaway Operations Pty Ltd in relation to the proposed agreement. This order is effective immediately.

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