Transport Workers’ Union of Australia

[2023] FWC 565

[2023] FWC 565

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Transport Workers’ Union of Australia

(B2023/203)

DEPUTY PRESIDENT EASTON SYDNEY, 7 MARCH 2023

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

1. An application was filed by the Transport Workers’ Union of Australia (TWU) pursuant to s.437 of the Fair Work Act 2009 (Cth) for a protected action ballot order in relation to employees employed by Cleanaway Operations Pty Ltd (Cleanaway) at the Silverwater site.

1. On 2 March 2023 Cleanaway advised the Commission that the order sought by the TWU was “deficient”.

1. In its written submissions Cleanaway says that the proposed orders fail to “make proper distinction between those matters that form the protected action ballot order (limited to those matters prescribed in section 443(3)), and those matters that form directions which must or may be given by the Commission (issued under section 450).”

1. Cleanaway says further that paragraph 7 of the draft order:

   “Does not properly identify that it is a discretionary direction given under section 450 and for which there is no apparent basis.”

1. Section 450(2) requires the Commission to give the ballot agent written directions in relation to certain listed matters, including “the compilation of the roll of voters.”

1. Section 450(4) empowers the Commission to make orders requiring the applicant or the employer to give to the FWC or the ballot agent certain information “to enable the roll of voters to be compiled.” An order under s.450(4) is not mandatory but the power is only available for the limited purpose of enabling the roll of voters to be compiled.”

1. Cleanaway says that no basis for making an order under s.450(4) has been “identified” or is “otherwise apparent.”

1. The TWU says that the order it seeks under s.450 “provides clear instructions to the applicant, respondent and Democratic Outcomes Pty Ltd (CiVS) as to how the ballot is to proceed [and ensures] that the ballot will be conducted in a timely and efficient manner.”

1. The proposed orders are unremarkable and I am satisfied that the orders should be made under s.450(4) in order to allow the ballot to be conducted properly and efficiently.

1. Cleanaway also took issue with paragraphs 7.1.4 and 8.1.4 of the draft order, which are directed to the Employer and the TWU respectively and are both in the following terms:

   “The list [provided by the employer to the ballot agent] must be accompanied by a declaration in accordance with Regulation 3.15 of the Fair Work Regulations.”

1. Cleanaway says that the proposed order does no more than reflect an obligation which arises pursuant to the Fair Work Regulations 2009 and is no more than an ‘injunction to comply with the law’.

1. The TWU submitted that the proposed orders provide clear instructions to the TWU, Cleanaway and the Ballot Agent. The TWU also advised that it does not press those paragraphs and therefore those orders have been deleted from the orders as made. The correspondence from the parties refers to paragraphs 7.1.5 and 8.1.5 but the basis for the objection and the TWU’s response refer to the content in paragraphs 7.1.4 and 8.1.4.

1. On the basis of the material before me, including the declaration of Mr Ho Lau of the TWU setting out the steps taken by it in bargaining with Cleanaway and that it has been, and is, genuinely trying to reach agreement with Cleanaway, 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.

1. An order has been separately issued in PR760111.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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