Transport Workers' Union of Australia v Cleanaway Operations Pty Ltd

[2023] FWC 1964

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Transport Workers’ Union of Australia
v

Cleanaway Operations Pty Ltd

(B2023/812)

DEPUTY PRESIDENT EASTON

SYDNEY, 9 AUGUST 2023

Proposed protected action ballot of employees of Cleanaway Pty Ltd - Padstow Depot.

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 certain employees of Cleanaway Operations Pty Ltd (Cleanaway) at the Padstow Depot.

On 8 August 2023 Cleanaway raised objections to the application on three grounds. The TWU provided a response to the objections on 8 August 2023.

The matter was listed for a telephone directions hearing on 9 August 2023 and Cleanaway advised that while it did not press its objections, it did not agree with the questions.

On the basis of the material before me, including the declaration of Mr Luke Ikladios of the TWU setting out the steps taken by the TWU in bargaining with the Employer 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 all of the requirements in s.443(1) of the Act have been met.

The ballot is to be conducted by the Democratic Outcomes Pty Ltd T/A CiVS (CiVS). CiVS has recently been approved as an eligible protected action ballot agent under s 468A of the Act (Democratic Outcomes Pty Ltd T/A CiVS [2023] FWC 1400) and consequently is authorised to conduct the ballot. For the purposes of s.443(3)(c) and s.448A(2) of the Act, a ballot period of seven (7) days from the date of the Order (9 August 2023) has been determined by the Commission. I observe that this is, in effect, the same ballot period proposed in the draft Order.

An Order has been separately issued (PR764979).

The matter will be listed for a s.448A compulsory conciliation conference and an Order to Attend and Directions will be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Transport Workers' Union of Australia (TWU) applied to the Fair Work Commission for an order permitting a ballot of employees of Cleanaway Operations Pty Ltd (Cleanaway) at the Padstow Depot for protected action under the Fair Work Act 2009. Cleanaway raised objections to the application but did not press them at the hearing. The matter was heard by Deputy President Easton in Sydney on 9 August 2023. The central issue before the Commission was whether the application met the criteria set out in section 443(1) of the Fair Work Act 2009 for a protected action ballot. Specifically, the Commission needed to determine if the union had been genuinely trying to reach an agreement with the employer and if there was a notification period for the proposed agreement. The TWU's declaration from Mr Luke Ikladios outlined the union's efforts in bargaining and the timeline, satisfying the Commission that all requirements had been met.

Deputy President Easton was satisfied that the TWU had been genuinely attempting to reach an agreement with Cleanaway and that there was a notification period for the proposed agreement. The Commission noted that the ballot agent, Democratic Outcomes Pty Ltd T/A CiVS, had been approved under section 468A of the Fair Work Act 2009. Accordingly, the Commission issued an order allowing the ballot to proceed for seven days from the date of the order. The Commission also scheduled a compulsory conciliation conference under section 448A to facilitate further negotiations between the parties. An Order to Attend and Directions were issued to ensure both parties were prepared for meaningful discussions at the conference.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established