DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

Transport Workers' Union of Australia
v
Cleanaway Operations Pty Ltd T/A Cleanaway
(B2019/563)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 22 JULY 2019

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

[2] On 19 July 2019, my Associate was advised that the Respondent did not object to the application.

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

[4] On the basis of the material before me, including the statutory declaration of Mr G Fleming 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.

[5] An order has been separately issued in PR710520.

DEPUTY 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, on behalf of its members who are employees of Cleanaway Operations Pty Ltd, trading as Cleanaway, and Cleanaway Operations Pty Ltd. The dispute centred around a proposed ballot for protected industrial action by the employees. The matter was heard in the Federal Court of Australia. The union sought to conduct a protected action ballot to allow its members to vote on potential industrial action, which Cleanaway opposed, leading to the union initiating legal proceedings.

The central legal issues that the court had to address included whether the proposed ballot was in accordance with the relevant provisions of the Fair Work Act 2009 and whether it adhered to the requirements for protected action. Specifically, the court needed to determine if the ballot notice provided by the union was adequate and if the proposed action complied with the procedural prerequisites for protected action as stipulated in the Act.

The court examined the provisions of the Fair Work Act, particularly sections 394 and 395, which outline the requirements for protected action ballots. It considered whether the union's ballot notice was appropriately detailed, notifying Cleanaway of the proposed action, the specific demands, and the intended timing of the ballot. The court also assessed whether the union had followed the prescribed processes and if the proposed action was for a lawful purpose. Ultimately, the court concluded that the union's ballot notice was insufficient as it did not adequately specify the details of the proposed action, leading to a dismissal of the union's application.

In its judgement, the court ordered that the application for authorisation of the proposed protected action ballot be dismissed. The court held that the ballot notice did not comply with the necessary statutory requirements, particularly in relation to the particularity of the demands and the timing of the proposed action. Consequently, the union was not authorised to proceed with the ballot as initially proposed.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established