Transport Workers' Union of Australia v Cleanaway Operations Pty Ltd

[2023] FWC 263

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Transport Workers’ Union of Australia
v

Cleanaway Operations Pty Ltd

(B2023/56)

COMMISSIONER HUNT

BRISBANE, 31 JANUARY 2023

Proposed protected action ballot of employees of Cleanaway Operations Pty Ltd

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 Shane Pierpoint, TWU Organiser.

The Respondent notified two objections to the application pertaining to one of the questions within the proposed ballot. The TWU corresponded on 30 January 2023, agreeing to remove the objectional question. The Respondent no longer objects to the application. In the circumstances, I have decided to determine the matter on the papers.

On the basis of the material before me, including the declaration of Mr Pierpoint 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 requirements in section 443(1) of the Act have been met.

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

The TWU also 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 protected action ballots.

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 1998 with respect to the handling of the information relating to the protected action ballot.

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

The Order [PR750082] will be issued concurrently with this Decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission considered an application by the Transport Workers' Union of Australia (TWU) for a protected action ballot order concerning certain employees of Cleanaway Operations Pty Ltd (Cleanaway). The TWU sought to conduct a ballot under section 437 of the Fair Work Act 2009. Cleanaway raised objections to one question in the proposed ballot, but subsequently withdrew its objections after the TWU agreed to remove the contentious question. Consequently, the Commission decided to proceed with the matter based on the provided documents. The TWU had demonstrated that it had engaged in good-faith negotiations with Cleanaway and had provided adequate notice of the proposed agreement, fulfilling the requirements of section 443(1) of the Act. Additionally, the TWU requested that Democratic Outcomes Pty Ltd trading as CiVS (CiVS) act as the ballot agent, a request that Cleanaway did not oppose.

The central legal issue before the Commission was whether the TWU had fulfilled the necessary conditions to conduct a protected action ballot. This involved verifying whether the TWU had engaged in genuine bargaining efforts, provided adequate notice of the proposed agreement, and identified a suitable ballot agent. The Commission had to determine if CiVS was a fit and proper person to conduct the ballot, ensuring the secrecy and security of the votes and the expeditious conduct of the ballot. Furthermore, the Commission needed to confirm that CiVS was capable of complying with the Privacy Act 1998 in handling the information related to the protected action ballot.

The Commission concluded that the TWU had sufficiently demonstrated its efforts in good-faith bargaining with Cleanaway, met the notification requirements under the Act, and identified a suitable ballot agent in CiVS. CiVS, with its Managing Director, Mr Michael M. Michael, had provided the necessary assurances regarding their capability to conduct the ballot and maintain the confidentiality of the voting process. The Commission appointed CiVS as the protected action ballot agent, finding them to be a fit and proper person for the role. The decision was made to issue the Order concurrently with the Decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established