Transport Workers' Union of Australia v Cleanaway Operations Pty Ltd

[2023] FWC 752

[2023] FWC 752

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Transport Workers’ Union of Australia
v

Cleanaway Operations Pty Ltd

(B2023/273)

COMMISSIONER HUNT BRISBANE, 29 MARCH 2023

Proposed protected action ballot of employees of Cleanaway Operations Pty Ltd

1. The Transport Workers’ Union of Australia (TWU) has made an application under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to certain employees of Cleanaway Operations Pty Ltd (the Respondent). The application was accompanied by a statutory declaration of Mr Stephen Hurndell, TWU Organiser.

1. The Respondent notified two objections to the application pertaining to one of the questions within the proposed ballot. A hearing by video was listed for 29 March 2023. Noting the objections of the Respondent, and having reviewed similar questions permitted in protected action ballot orders made by the Fair Work Commission (the Commission) on earlier occasions, I caused my chambers to inquire of the parties if the following question within the ballot could be agreed between the parties:

“A ban on the performance of work unless wearing badges and/or hats and/or face masks with TWU branding and/or TWU EBA campaign messages and or [Pink] Hi Visibility clothing instead of, or in addition to the employer’s uniform either periodically or indefinitely, so long as this does not contravene site safety and personal protective equipment requirements?”

1. The Respondent wrote to my chambers shortly thereafter advising that the parties would consent to Question 8 being drafted as follows: 

“A ban on the performance of work unless wearing badges and/or hats and/or face masks with TWU branding and/or TWU EBA campaign messages and/or Hi Visibility clothing in addition to the employer's uniform either periodically or indefinitely, so long as this does not contravene site safety and personal protective equipment requirements?”

1. As a result of the consent position, the Respondent no longer pressed its objection, however advised that it is done so on a ‘no precedent’ basis and it reserves all of its rights in respect of any industrial action that might arise from this question because the Respondent does not concede, for the reasons set out in its submissions, that any such industrial action could be lawful. In the circumstances, I have decided to determine the matter on the papers.

1. On the basis of the material before me, including the declaration of Mr Hurndell setting out the steps taken by the TWU in bargaining with the Respondent and confirming that the Respondent has been, and is, genuinely trying to reach agreement with the Respondent, I am also satisfied there is a notification time in relation to the proposed agreement and the requirement in section 443(1) of the Act have been met.

1. I am satisfied that the TWU has given notice in accordance with s.440 of the Act.

1. The TWU sought that a person other than the Australian Electoral Commission (AEC) be the ballot agent for the protected action ballot. This course was not opposed by the Respondent. The person proposed in the application as the protected action ballot agent is Democratic Outcomes Pty Ltd trading as CiVS (CiVS). Mr Michael M. Michael, the Managing Director of CiVS has provided a statutory declaration setting out that he would carry out the functions of the protected ballot agent for CiVS, and that he has relevant experience in conducting protection action ballots.

1. I am satisfied that CiVS is a fit and proper person to conduct the ballot. I am also satisfied that Mr Michael and CiVS are capable of ensuring the secrecy and security of the votes and of conducting the ballot expeditiously. CiVS has agreed to be the protected action ballot agent and Mr Michael and CiVS are bound to comply with the Privacy Act 1988 with respect to the handling of the information relating to the protected action ballot.

1. Therefore, I appoint CiVS as the protected action ballot agent.

1. The Order [PR760694] will be issued concurrently with this Decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

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