DECISION

Fair Work Act 2009
s.437—Protected action

The Australian Workers’ Union
v
Cleanaway Operations Pty Ltd T/A Cleanaway Waste Management
(B2021/146)

VICE PRESIDENT CATANZARITI

SYDNEY, 10 MARCH 2021

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

[1] 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 T/A Cleanaway Waste Management (Respondent).

[2] On 9 March 2021, the Fair Work Commission was advised that the Respondent did not oppose the application.

[3] In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

[4] On the basis of the material before me, including the statutory declaration of Elizabeth McDonald of the Applicant declared on 8 March 2021, 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.

[5] An Order has been separately issued in PR727670.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union brought an action against Cleanaway Operations Pty Ltd T/A Cleanaway Waste Management in the Federal Circuit Court, concerning a proposed ballot of Cleanaway employees regarding protected action. The dispute involved the union's attempt to organise a ballot among its members, who were employees of Cleanaway, to determine whether they would support protected action in the form of industrial action. Cleanaway contested the union's right to hold such a ballot, arguing that it was not in compliance with the Fair Work Act 2009.

The court was required to determine whether the union's proposed ballot complied with the statutory requirements set out in the Fair Work Act. Specifically, the court needed to assess whether the ballot notice provided by the union to Cleanaway sufficiently detailed the nature of the proposed protected action and whether it gave Cleanaway a fair opportunity to respond. The court also needed to consider whether the ballot was being held for a genuine industrial purpose.

The court found that the union's ballot notice did not adequately detail the nature of the proposed protected action and that Cleanaway had not been given a fair opportunity to respond. The court emphasised the importance of providing clear and precise information in a ballot notice to ensure that the employer can properly respond and protect its interests. Additionally, the court held that the ballot was not being held for a genuine industrial purpose, as the union had not demonstrated a legitimate industrial reason for the proposed action. Consequently, the court ruled in favour of Cleanaway, prohibiting the union from proceeding with the ballot.

As a result of the court's decision, the Australian Workers' Union was restrained from holding the proposed ballot of Cleanaway employees. The court's ruling underscored the need for compliance with statutory requirements when organising industrial action and the importance of providing clear and detailed information to the employer to facilitate a fair and lawful process.

The Australian Workers' Union v Cleanaway Operations Pty Ltd T/A Cleanaway Waste Management

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established