Transport Workers' Union of Australia v Cleanaway Operations Pty Ltd

[2022] FWC 3359

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.459—Protected action

Transport Workers’ Union of Australia
v

Cleanaway Operations Pty Ltd

(B2022/1849)

VICE PRESIDENT CATANZARITI

SYDNEY, 22 DECEMBER 2022

Application to extend the 30 day period in relation to B2022/1664

On 21 December 2022, 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, PR747713 made on 8 November 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 24 November 2022. 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 expires at midnight on 23 December 2022.

On 22 December 2022, 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 23 December 2022, the extension period will operate from 23 December 2022.

An order has been separately issued in PR749215.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was presented with an application from the Transport Workers' Union of Australia to extend the period within which protected action could be taken, as authorised by a ballot order, PR747713. This order applied to certain employees of Cleanaway Operations Pty Ltd. The Union sought an extension of the 30 day period for protected action, which was set to expire on 23 December 2022. The protected action ballot order was made on 8 November 2022, and the ballot results, indicating a majority endorsement of the proposed forms of protected industrial action, were declared on 24 November 2022. Pursuant to section 459(1)(d)(i) of the Fair Work Act 2009, the 30 day period for protected action began on the date of the ballot result declaration.

The primary legal issue before the Commission was whether the 30 day period for protected action could be extended under section 459(3) of the Fair Work Act 2009. The Transport Workers' Union of Australia, as the applicant, needed to demonstrate that the relevant requirements of the Act were met to warrant an extension. Furthermore, the period had not been previously extended. The Commission needed to consider whether the application was made within the correct timeframe and if it satisfied the statutory criteria for an extension. Cleanaway Operations Pty Ltd did not oppose the application, which facilitated the decision-making process.

The Commission, after reviewing the application and the relevant statutory provisions, determined that the application met all the necessary requirements for an extension. The period for protected action had not been previously extended, and the application was made within the appropriate timeframe. The Commission was satisfied that the extension of the 30 day period was appropriate. Consequently, the 30 day period for protected action was extended, beginning from midnight on 23 December 2022. An order was issued in PR749215 to reflect the decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established