The Australian Workers' Union v Cleanaway Pty Ltd

[2023] FWC 64

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.459—Protected action

The Australian Workers’ Union
v

Cleanaway Pty Ltd

(B2023/13)

VICE PRESIDENT CATANZARITI

SYDNEY, 10 JANUARY 2023

Application to extend the 30 day period in relation to B2022/1727

On 6 January 2023, the Australian Workers’ Union (Applicant) made an application to the Fair Work Commission (the Commission) pursuant to s.459(3) of the Fair Work Act 2009 (Cth) (the Act) to extend the 30 day period for protected action authorised by a protected action ballot order, PR748166 made on 22 November 2022. The Order applies to certain employees of Cleanaway Pty Ltd (the Respondent).

The ballot result, by which a majority of the relevant employees endorsed the proposed forms of protected industrial action, was declared on 8 December 2022. Pursuant to s.459(1)(d)(i) of the Act, the 30 day period for protected action commenced on the date of the declaration of the results of the ballot and therefore expires at midnight on 7 January 2023.

On 9 January 2023, the Commission sought the Respondent’s views via email as to whether or not it opposed the application to extend the 30 day period for protected industrial action. To date, no response has been received from the Respondent. Accordingly, I have determined the matter on the basis of the documentation filed.

In addressing s.459(3) of the Act, this application is made by the Australian Workers’ Union who is the Applicant for which the protected action ballot order was issued. Furthermore, the period specified in s.459(1)(d)(i) has not been previously extended.

On that basis and on the material before me, I am satisfied that each of the relevant requirements of s.459 of the Act have been met and that a 30 day extension is appropriate. As the 30 day period expires at midnight on 7 January 2023, the extension period will operate from 7 January 2023.

An order has been separately issued in PR749527.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers’ Union sought an extension of the 30-day period for protected action, which was authorised by a protected action ballot order made by the Fair Work Commission. The respondents to this application were Cleanaway Pty Ltd, to whom the ballot order applied. The Commission was asked to determine whether it was appropriate to extend the 30-day period for protected action under s.459(3) of the Fair Work Act 2009. The Commission was required to consider whether the application met the requirements of s.459 of the Act, including whether the 30-day period had not been previously extended. The Commission also had to consider any other relevant factors in determining whether an extension was appropriate.

The Commission found that the application met the requirements of s.459 of the Act and that an extension was appropriate. The Commission noted that the 30-day period had not been previously extended and that the application was made by the Applicant, who was the union that had obtained the protected action ballot order. The Commission also considered that the extension was sought in good faith and that there were no other factors that would make an extension inappropriate. Accordingly, the Commission determined that a 30-day extension was appropriate and made an order to that effect. The extension period will operate from 7 January 2023.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established