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

[2019] FWC 1634

[2019] FWC 1634

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Transport Workers’ Union of Australia
v
Cleanaway Operations Pty Ltd T/A Cleanaway
(B2019/205)

COMMISSIONER GREGORY MELBOURNE, 13 MARCH 2019

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

Introduction

[1] On 8 March 2019 the Transport Workers’ Union of Australia (“TWU”) made application for a protected action ballot order under s.437 of the Fair Work Act 2009 (Cth) (“the Act”) in respect of its members employed by Cleanaway Operations Pty Ltd T/A Cleanaway (“Cleanaway”). The application applies to those employees who are members of the TWU and who would be subject to the proposed enterprise agreement.

[2] A Statutory Declaration in support of the application, made by Mr Mick Wirrick, Senior Organiser, TWU, was also received on 8 March 2019. It details the steps that have been taken to date in attempting to reach an agreement. This has included no less than eight meetings since August 2018 involving representatives from the TWU and Cleanaway.

[3] Cleanaway initially advised that it objected to the application, and the application was set down for hearing on Thursday, 14 March 2019. However, the TWU subsequently filed an amended draft order to the Commission. Cleanaway responded by advising that it no longer objected to the application based on the terms of the amended draft order. The Commission subsequently sent an email to both parties advising that the matter would accordingly be determined based on the terms of the draft order.

The Legislation

“443 When the FWC must make a protected action ballot order

(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(a) the name of each applicant for the order;

(b) the group or groups of employees who are to be balloted;

(c) the date by which voting in the protected action ballot closes;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.

(4) If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.

Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.” 1

……………………..

“437 Application for a protected action ballot order

…

Matters to be specified in application

(3) The application must specify:

(a) the group or groups of employees who are to be balloted; and

(b) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.” 2

…………………….

“414 Notice requirements for industrial action

Notice requirements - employee claim action

(1) Before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the Employer of the employee.

(2) The period of notice must be at least:

(a) 3 working days; or

(b) if a protected action ballot order for the employee claim action specifies a longer period of notice for the purposes of this paragraph that period of notice.” 3

Consideration

[4] As indicated, s.443(1) makes clear that the Commission must make a protected action ballot order in circumstances where an application has been made under s.437 and the Commission is satisfied that the Applicant has been and is genuinely trying to reach agreement with the employer of the employees to be balloted. I am satisfied that, based on the detail contained in the Statutory Declaration provided by Mr Mick Wirrick, the TWU is genuinely trying to reach an agreement with Cleanaway about the terms of an enterprise agreement to cover the employees to be balloted.

[5] The application also specifies the group of employees to be balloted and the questions to be put in regard to the nature of the proposed action. I accordingly propose to make an Order in terms that reflect the draft order provided by the TWU.

[6] An Order [PR705790] in these terms is issued in conjunction with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR705789>

 1   Fair Work Act 2009 (Cth) s 443.

 2   Fair Work Act 2009 (Cth) s 437(3).

 3   Fair Work Act 2009 (Cth) s 414.