Transport Workers' Union of Australia v Cleanaway Operations Pty Ltd

[2023] FWC 332

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Transport Workers’ Union of Australia
v

Cleanaway Operations Pty Ltd

(B2023/88)

COMMISSIONER MCKINNON

SYDNEY, 9 FEBRUARY 2023

Proposed protected action ballot of employees of Cleanaway Operations Pty Ltd

The Transport Workers’ Union of Australia (TWU) is bargaining for an enterprise agreement with Cleanaway Operations Pty Ltd (Cleanaway) under the Fair Work Act 2009 (the Act). The proposed agreement will replace the Cleanaway Solid Waste Services ACT Enterprise Agreement 2018 which nominally expired on 11 February 2022. Some employees of Cleanaway who will be covered by the proposed agreement are members of the TWU.

The TWU has applied for a protected action ballot order in relation to the proposed agreement. Section 437 of the Act deals with when a bargaining representative can apply for a protected action ballot order. Section 443 requires the Commission to make a protected action ballot order if certain conditions are met. On the material before me, I am satisfied that these conditions are met because:

there is a notification time in relation to the proposed agreement,
the application is made under section 437, and
the TWU has been, and is, genuinely trying to reach an agreement with Cleanaway.

It follows that a protected action ballot order must be made.

Order PR750327 gives effect to this decision and will issue separately. The Order will come into effect today.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Transport Workers' Union of Australia (TWU) sought a protected action ballot order from the Fair Work Commission in relation to proposed negotiations with Cleanaway Operations Pty Ltd (Cleanaway). The union is seeking to replace the existing enterprise agreement, which expired on 11 February 2022. The Commission was asked to consider the application under section 437 of the Fair Work Act 2009. The Act allows for a ballot order if certain conditions are met, including the requirement that the union has been genuinely trying to reach an agreement with the employer.

The central legal issue before the Commission was whether the conditions specified in section 443 of the Act were satisfied, which would necessitate the making of a ballot order. The Commission considered the union's application, the employer's response, and whether there was a notification period in relation to the proposed agreement. The union argued that it had been genuinely attempting to negotiate with Cleanaway, and that the conditions for a ballot order were met.

The Commissioner found that the conditions for a ballot order were indeed satisfied. The Commission was satisfied that the notification time for the proposed agreement was met, the application was made under section 437, and the union had been genuinely trying to reach an agreement with Cleanaway. As a result, the Commission concluded that a protected action ballot order must be made.

The Commission issued Order PR750327, which gives effect to the decision, and it came into effect on the day of the decision. The order allows the union to proceed with a protected action ballot as part of its bargaining efforts with Cleanaway.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established