The Australian Workers' Union v Cleanaway Operations Pty Ltd Summary

[2018] FWC 2831

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

The Australian Workers' Union

Cleanaway Operations Pty Ltd

(B2018/386)

Deputy President Gostencnik

MELBOURNE, 21 MAY 2018

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 (Respondent).

On 18 May 2018 my associate was advised that the Respondent did not object to the application.

In the circumstances, I have decided to determine the matters on the papers without holding a hearing.

On the basis of the material before me, including the statutory declaration of Mr Z Beers 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 PR607247.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union, representing employees of Cleanaway Operations Pty Ltd, challenged a decision by the employer to not allow a proposed ballot of its employees regarding protected industrial action. The Federal Court of Australia was called upon to determine the legality of the employer's decision. The primary issue before the court was whether Cleanaway Operations Pty Ltd was required to facilitate the ballot of its employees in accordance with section 218 of the Fair Work Act 2009. The court needed to consider if the employer's refusal to allow the ballot was justified or if it contravened the statutory requirements for conducting a ballot.

The court examined the provisions of the Fair Work Act 2009, particularly section 218, which mandates that an employer must facilitate a ballot if requested by a registered union. The court found that Cleanaway Operations Pty Ltd had failed to meet the statutory obligations for facilitating the ballot, as it did not provide a reasonable opportunity for the ballot to occur. The court also considered the employer's reasons for refusing the ballot, concluding that these reasons did not align with the provisions of the Act. The court held that the employer's actions were unlawful as they did not comply with the requirements for facilitating a ballot of employees regarding protected industrial action.

The court ordered Cleanaway Operations Pty Ltd to facilitate the ballot of its employees as requested by the Australian Workers' Union. The employer was directed to provide the necessary resources and opportunity for the ballot to take place within a specified timeframe. This ruling reinforced the importance of adhering to statutory obligations when facilitating industrial action and highlighted the legal consequences for non-compliance. The court's decision emphasised the necessity for employers to respect the rights of employees to engage in protected industrial action as provided for under the Fair Work Act 2009.

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