Transport Workers' Union of Australia v Cleanaway Operations Pty Ltd Summary

[2024] FWC 3347

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Transport Workers' Union of Australia
v

Cleanaway Operations Pty Ltd

(B2024/1575)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 2 DECEMBER 2024

Proposed protected action ballot of employees of Cleanaway Operations Pty Ltd

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

On 2 December 2024, the Commission was advised that the Employer, in effect, did not object 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 declaration of Russell Vieritz, Organiser, setting out the steps taken by the TWU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Cleanaway, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.

The ballot is to be conducted by Democratic Outcomes Pty Ltd (CiVS). CiVS has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.

For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 16 December 2024.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR781929.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. That Member will issue an Order requiring the attendance of all bargaining representatives in the proposed enterprise agreement at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

DEPUTY PRESIDENT

[1] This is, in effect, 7 working days from the anticipated commencement of the ballot and was the period sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission (FWC) recently considered an application from the Transport Workers' Union of Australia (TWU) for a protected action ballot order concerning employees of Cleanaway Operations Pty Ltd (Cleanaway). The application was made under section 437 of the Fair Work Act 2009. The union sought permission to conduct a ballot for potential protected action, given the ongoing negotiations with Cleanaway. Cleanaway did not object to the application, leading the Deputy President to determine the matter based on the submitted documents.

The key legal issue before the Commission was whether the TWU had fulfilled all the necessary conditions under the Fair Work Act to hold a protected action ballot. Specifically, the Commission had to ascertain if the union had genuinely tried to reach an agreement with Cleanaway, as required by section 443(1) of the Act, and whether all procedural requirements had been satisfied. The union provided a declaration from its organiser, Russell Vieritz, detailing the steps taken during the bargaining process and affirming the union's genuine efforts to reach an agreement.

After reviewing the evidence, Deputy President Hampton concluded that the union had met all the necessary requirements for the ballot. The declaration from the union organiser sufficiently demonstrated that the union had genuinely attempted to negotiate with Cleanaway. Given that Cleanaway did not oppose the application and considering the union's compliance with the statutory requirements, the Deputy President was satisfied that the conditions for a protected action ballot were met. Consequently, the Deputy President ordered that the ballot be conducted by Democratic Outcomes Pty Ltd, an approved ballot agent. The voting period was set to close on 16 December 2024, which aligns with the seven working days from the anticipated commencement of the ballot as requested by the union. The Commission also scheduled a compulsory conciliation conference under section 448A of the Act to be conducted by another member of the Commission, ensuring that all bargaining representatives attended and were prepared to engage in meaningful negotiations.

The decision finalised the procedural aspects of the ballot, setting the date for the close of voting and authorising the ballot agent. This matter will now proceed to the compulsory conciliation conference stage, with further orders and directions to be issued to facilitate effective negotiations between the union and Cleanaway.

Transport Workers' Union of Australia v Cleanaway Operations Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established