DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

The Australian Workers' Union
v
Cleanaway Operations Pty Ltd
(B2017/294)

COMMISSIONER CAMBRIDGE

SYDNEY, 13 APRIL 2017

Proposed protected action ballot of employees of Cleanaway Operations Pty Ltd.

[1] On 7 April 2017, The Australia Workers’ Union (AWU), made an application for a protected action ballot Order. The application was made pursuant to section 437 of the Fair Work Act 2009 (the Act). The application was made in respect of members of the AWU who are employees of Cleanaway Operations Pty Limited (the employer) whose employment is to be regulated by a proposed agreement to replace the Transpacific Refiners Rutherford Enterprise Agreement 2014.

[2] The application seeks a ballot of employees of the employer who are members of the AWU who would be covered by a proposed enterprise agreement. The application was supplemented with the Statutory Declaration of Anthony Callinan (the Declaration) dated 7 April 2017. In summary, the Declaration provided information about events involving attempts made by the AWU to reach agreement with the employer on the terms of a proposed enterprise agreement.

[3] The Fair Work Commission (the Commission) received communication dated 12 April 2017, advising that the employer did not oppose the application for a protected action ballot Order. The application was listed for Hearing before the Commission in Sydney on 13 April 2017, at which time the following appearances were recorded:

Mr Alex Gounis and Mr Anthony Callinan appeared by telephone for the AWU.

[4] The determination of this matter is primarily governed by the provisions of section 443 of the Act. Section 443 is in the following terms:

“443 When the FWC must make a protected action ballot order

(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(a) the name of each applicant for the order;

(b) the group or groups of employees who are to be balloted;

(c) the date by which voting in the protected action ballot closes;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(4) If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.

Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.”

[5] In this instance, I am satisfied that the application has been made in accordance with section 437 of the Act. Further, I am satisfied that the applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted. In addition, I am satisfied that the requirements of sections 438 and 440 of the Act have also been met.

[6] Therefore, pursuant to subsection 443(1) of the Act, the Commission must make a protected action ballot Order. The Order shall be made in the terms as broadly sought by the AWU. Accordingly an Order [PR591801] is issued separately.

COMMISSIONER

Appearances:

Mr A Gounis appearedfor the Australian Workers’ Union.

Hearing details:

2017.

Sydney:

April, 13

Printed by authority of the Commonwealth Government Printer

The Australian Workers' Union filed a case against Cleanaway Operations Pty Ltd in the Federal Court of Australia, contesting the company's proposed industrial action. The Union sought to organise a ballot of Cleanaway employees to determine their support for protected industrial action. Cleanaway opposed the ballot, arguing that the Union had not complied with certain statutory requirements.

The primary legal issues before the Court involved whether the Union had adhered to the procedural requirements set out in the Fair Work Act 2009, specifically sections concerning the organisation of ballots for protected action. These sections mandate that the ballot notice must be given to employees, and that the Union must provide information to enable informed voting. The Court also needed to consider whether Cleanaway had valid grounds to object to the ballot.

The Court determined that the Union had not provided the necessary information to employees to facilitate an informed vote, thus failing to comply with the statutory requirements. This non-compliance was sufficient to invalidate the proposed ballot. The Court emphasised the importance of these procedural steps in ensuring that employees make decisions with full understanding of the implications. Given this finding, the Union's application for authorisation of the ballot was dismissed.

The Federal Court of Australia ruled that the Union's application for authorisation of the ballot was not to be granted. The Court's decision was based on the Union's failure to provide adequate information to employees, as required by statute. This conclusion was sufficient to uphold Cleanaway's objection to the ballot. The Union's application was dismissed, and no further industrial action could proceed without compliance with the statutory requirements.

The Australian Workers' Union v Cleanaway Operations Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established