Transport Workers' Union of Australia v Cleanaway Operations Pty Ltd

[2022] FWC 3307

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Transport Workers’ Union of Australia
v

Cleanaway Operations Pty Ltd

(B2022/1828)

VICE PRESIDENT CATANZARITI

SYDNEY, 15 DECEMBER 2022

Proposed protected action ballot of employees of Cleanaway Operations Pty Ltd

This is an application by the Transport Workers’ Union of Australia (Applicant) made under s.437 of the Fair Work Act 2009 (Cth) (Act) for a protected action ballot order in relation to certain employees of Cleanaway Operations Pty Ltd (Respondent).

The Respondent neither opposed nor consented to the application.

In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

On the basis of the material before me, including the statutory declaration of Ho Lau of the Applicant declared on 12 December 2022, setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in s.443(1) of the Act have been met.

An Order has been separately issued in PR748964.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case of Transport Workers' Union of Australia v Cleanaway Operations Pty Ltd was heard by Vice President Catanzariti of the Fair Work Commission. The Transport Workers' Union of Australia had applied under section 437 of the Fair Work Act 2009 for an order permitting a ballot of its members, who were employees of Cleanaway Operations Pty Ltd, to authorise protected action. Cleanaway Operations Pty Ltd neither opposed nor consented to the application.

The central legal issue before the Vice President was whether the Union had satisfied the statutory requirements to hold the ballot. Specifically, the Vice President needed to determine if the Union had genuinely attempted to negotiate with Cleanaway Operations Pty Ltd and if the requisite notification period had been met. The Vice President reviewed the material submitted, including a statutory declaration by Ho Lau of the Union, which detailed the bargaining process and asserted that the Union had genuinely tried to reach an agreement.

In issuing the decision, the Vice President found that the statutory declaration and other material demonstrated the Union's genuine efforts to negotiate with Cleanaway Operations Pty Ltd. The Vice President also concluded that the notification period under section 443(1) of the Fair Work Act had been fulfilled. Consequently, the Vice President determined that the Union had met the necessary criteria to proceed with the ballot. An order was subsequently issued in PR748964, permitting the ballot to go ahead.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established