Transport Workers' Union of Australia v Cleanaway Operations Pty Ltd T/A Cleanaway

[2022] FWC 245

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Transport Workers' Union of Australia

Cleanaway Operations Pty Ltd T/A Cleanaway

(B2022/47)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 7 FEBRUARY 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 (Act) for a protected action ballot order in relation to certain employees of Cleanaway Operations Pty Ltd (Respondent).

On 7 February 2022, my Associate was advised that the Respondent 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 Mr Anthony Goddard of the Applicant 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 PR738108.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved the Transport Workers’ Union of Australia, acting on behalf of its members employed by Cleanaway Operations Pty Ltd (trading as Cleanaway), and Cleanaway Operations Pty Ltd. The dispute centered around a proposed protected action ballot of the employees, as outlined in section 437 of the Fair Work Act 2009. The Union sought an order for a protected action ballot to be held, citing the necessity for such action following the unsuccessful negotiation process between the Union and the Respondent.

The primary legal issue before the Deputy President was whether the requirements for a protected action ballot under the Fair Work Act 2009 were satisfied. This included verifying if the Union had genuinely attempted to reach an agreement with the Respondent and if the requisite notification time had been met. Additionally, the court needed to ensure that all procedural requirements set out in section 443(1) of the Act were adhered to.

Upon examining the declaration by Mr. Anthony Goddard of the Applicant and the evidence of the Union's bargaining efforts, the Deputy President concluded that the conditions for a protected action ballot were fulfilled. The Union had indeed been making genuine attempts to negotiate with Cleanaway, and the notification period required by the Act had been observed. Consequently, the application was approved, and an order for the protected action ballot was issued. The court's decision was made without the necessity of a formal hearing, given that the Respondent did not object to the Union's application.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established