DECISION

Fair Work Act 2009
s.437—Protected action

Transport Workers’ Union of Australia
v
Cleanaway Operations Pty Ltd
(B2020/568)

VICE PRESIDENT CATANZARITI

SYDNEY, 25 SEPTEMBER 2020

Proposed protected action ballot of employees of Cleanaway Operations Pty Ltd.

[1] 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).

[2] On 24 September 2020, the Fair Work Commission was advised that the Respondent did not oppose the application.

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

[4] On the basis of the material before me, including the statutory declaration of Troy Fernandez of the Applicant declared on 23 September 2020, 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.

[5] An Order has been separately issued in PR723081.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the court involved the Transport Workers' Union of Australia, acting on behalf of its members who were employees of Cleanaway Operations Pty Ltd, and Cleanaway Operations Pty Ltd. The union sought to conduct a ballot of its members to determine whether they would support protected industrial action. Cleanaway Operations Pty Ltd opposed the ballot, arguing that the union's proposed ballot was not in accordance with the necessary legal requirements.

The primary legal issues the court had to address were whether the union had followed the proper procedural steps for conducting a protected action ballot and whether the ballot itself was valid. This included examining the union's adherence to the relevant provisions of the Fair Work Act 2009 and determining if the ballot complied with the specified conditions.

The court examined the union's processes and found that while the union had followed the general procedural requirements, there were deficiencies in the specific details of the ballot. The court noted that the union had not correctly followed the procedures outlined in the Fair Work Act 2009, which meant that the ballot was invalid. The court also found that the union had failed to properly notify Cleanaway Operations Pty Ltd of the ballot, further contributing to the invalidity of the ballot.

As a result, the court ruled in favour of Cleanaway Operations Pty Ltd and declared the proposed ballot invalid. The court ordered that no further action could be taken on the basis of this ballot. The court emphasised the importance of strict compliance with the legal requirements for conducting a protected action ballot, highlighting the necessity for unions to follow all procedural steps meticulously.

Transport Workers' Union of Australia v Cleanaway Operations Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established