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

[2024] FWC 2296

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

(B2024/1093)

COMMISSIONER RIORDAN

SYDNEY, 28 AUGUST 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 (the Act) for a protected action ballot order in relation to certain employees of Cleanaway Operations Pty Ltd (Cleanaway or Employer).

On 27 August 2024, the Commission was advised that the Employer, in effect, did not object to an amended form of the Application. However, the Respondent sought an extended period of written notice of four (4) working days. The Applicant maintained that three (3) working days’ notice was sufficient.

I conducted a Telephone Conference on 28 August 2024, at which both parties came to an agreement that the period of written notice would be extended to four (4) working days.

On the basis of the material before me, including the declaration of William Cheffirs, Industrial Officer, 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.

I am satisfied that there are relevant exceptional circumstances required by s.443(5), justifying an extended period of written notice of four (4) working days for the purposes of s.414(2)(b) of the Act when taking industrial action set out in the Order made by the Commission.

The ballot is to be conducted by Vero Engagement and Voting Solutions Pty Ltd (Vero). Vero 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 11 September 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 PR778705.

This matter will be scheduled for a s.448A compulsory conciliation conference in due course. An Order will be issued 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.

COMMISSIONER

[1] This is, in effect, 14 calendar days from the making of the Order and was the date sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Transport Workers’ Union of Australia lodged an application under section 437 of the Fair Work Act 2009 for a protected action ballot order in relation to employees of Cleanaway Operations Pty Ltd. The Union sought to conduct a ballot to authorize industrial action due to ongoing disputes with Cleanaway over an enterprise agreement. The Fair Work Commission was tasked with determining whether the application met the statutory requirements and if the Union had genuinely attempted to reach an agreement with Cleanaway.

The primary legal issue before the Commission was whether the Union had satisfied the conditions set out in section 443(1) of the Act, which includes proving that it had genuinely tried to reach an agreement with the employer and that there was a notification period for the proposed agreement. Additionally, the Union needed to demonstrate that there were exceptional circumstances to justify an extended period of notice for the ballot, as per section 443(5) of the Act.

The Commission found that the Union had genuinely attempted to negotiate with Cleanaway and that a notification period for the proposed agreement was in place. The Union's declaration and the steps taken in the bargaining process were deemed sufficient to meet the requirements of section 443(1). The Commission also determined that there were relevant exceptional circumstances justifying an extended period of notice for the ballot, extending the notice period to four working days. The Commission set the closing date for the ballot as 11 September 2024 and authorised Vero Engagement and Voting Solutions Pty Ltd to conduct the ballot.

The Commission issued an Order approving the ballot and scheduled a compulsory conciliation conference under section 448A of the Act. The Order required all bargaining representatives to attend and participate in meaningful negotiations to resolve the dispute over the enterprise agreement.

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