Transport Workers' Union of Australia v Cleanaway Operations Pty Ltd

[2023] FWC 355

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.459—Protected action

Transport Workers' Union of Australia
v

Cleanaway Operations Pty Ltd

(B2023/94)

VICE PRESIDENT CATANZARITI

MELBOURNE, 14 FEBRUARY 2023

Application to extend the 30 day period in relation to B2022/1808

On 8 February 2023, the Transport Workers' Union of Australia (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, PR748863 made on 13 December 2022. The Order applies to certain employees of Cleanaway Operations 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 9 January 2023. 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 expired at midnight on 7 February 2023.

On 9 February 2023, the Respondent advised the Commission via email that it does not oppose the Transport Workers' Union of Australia’s application to extend the 30 day period for protected industrial action. 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 Transport Workers' Union of Australia 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 February 2023, the extension period will operate from 7 February 2023.

An order has been separately issued in PR750565.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Transport Workers' Union of Australia applied to the Fair Work Commission to extend the 30-day period for protected action authorised by a ballot order. The order was issued on 13 December 2022 and applied to certain employees of Cleanaway Operations Pty Ltd. The ballot result was declared on 9 January 2023, and the 30-day period expired on 7 February 2023. The Respondent did not oppose the application, and the Vice President of the Commission determined the matter based on the documentation filed.

The legal issue before the Commission was whether the 30-day period for protected action authorised by a ballot order could be extended. The Commission had to consider whether the relevant requirements of section 459 of the Fair Work Act 2009 (Cth) had been met. The application was made by the Applicant, who was the party for which the ballot order was issued, and the period had not been previously extended. The Commission was satisfied that the requirements of section 459 had been met, and a 30-day extension was appropriate.

The Commission found that the requirements of section 459 of the Fair Work Act 2009 (Cth) had been met, and a 30-day extension was appropriate. The extension period would operate from 7 February 2023, the day the original 30-day period expired. The Commission issued an order in PR750565 to effect the extension. The decision was made on the basis of the documentation filed and the absence of opposition from the Respondent.

In summary, the Fair Work Commission granted the Transport Workers' Union of Australia's application to extend the 30-day period for protected action authorised by a ballot order. The extension was granted because the relevant requirements of section 459 of the Fair Work Act 2009 (Cth) had been met, and the period had not been previously extended. The extension period would operate from 7 February 2023. An order was issued in PR750565 to effect the extension.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established