The Australian Workers' Union v Cleanaway Pty Ltd

[2022] FWC 3093

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

The Australian Workers’ Union
v

Cleanaway Pty Ltd

(B2022/1727)

VICE PRESIDENT CATANZARITI

SYDNEY, 22 NOVEMBER 2022

Proposed protected action ballot of employees of Cleanaway Pty Ltd

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 Pty Ltd (Respondent).

On 21 November 2022, the Fair Work Commission was advised that the Respondent did not oppose 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 statutory declaration of Darren Lee of the Applicant declared on 11 November 2022, 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 PR748166.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union filed an application under section 437 of the Fair Work Act 2009 against Cleanaway Pty Ltd, seeking a protected action ballot order in relation to specific employees. The application was made in light of the union's assertion that it had been genuinely attempting to reach an agreement with the company but had been unable to do so. Cleanaway Pty Ltd did not oppose the application, prompting the Fair Work Commission to decide the matter on the basis of the documents submitted without a hearing.

The legal issues before the court included whether the union had fulfilled its obligations under section 443(1) of the Act and whether the notification period for the proposed agreement was appropriate. The union had to demonstrate that it had been genuinely attempting to reach an agreement with the company, and that it had provided the required notification period. The court had to assess whether these conditions were met based on the evidence presented.

The court found that the union had provided sufficient evidence to demonstrate that it had genuinely been attempting to reach an agreement with the company and that it had provided the required notification period. The court noted that the union's statutory declaration, along with other documents, provided enough evidence to satisfy the requirements of section 443(1) of the Act. The court also found that the notification period was appropriate and that the union had met the necessary conditions.

The Fair Work Commission ordered that a protected action ballot be held in relation to the employees of Cleanaway Pty Ltd. This order was made under section 437 of the Fair Work Act 2009, which allows for the protection of employees engaged in protected industrial action. The order was issued separately in PR748166.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established