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

[2023] FWC 398

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

(B2023/119)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 17 FEBRUARY 2023

Proposed protected action ballot of employees of Cleanaway Operations Pty Ltd T/A Cleanaway – Cleanaway Solid Waste Services Geelong Depot (Municipal) Enterprise Agreement 2018.

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 T/A Cleanaway (the Respondent).

The Respondent raised concerns in relation to the form and content of the order, specifically the industrial action identified in questions 6 and 7 of the draft order accompanying the application, and also asserted that because it had not issued a Notice of Employee Representational Rights to commence bargaining, the application for a protected ballot order ought to be dismissed. I determined a Mention should be conducted, during which I discussed these concerns with the parties and other matters subsequently raised. Following the Mention, the Respondent confirmed it did not intend to pursue its objections further.

In the circumstances, I have proceeded to determine the matter on the papers without holding a hearing.

On the basis of the material before me, including the declaration of Mr Greg 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.

An order has been separately issued in PR750697.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Transport Workers' Union of Australia applied to the Fair Work Commission for a protected action ballot order in relation to certain employees of Cleanaway Operations Pty Ltd T/A Cleanaway. The application was made under section 437 of the Fair Work Act 2009, seeking permission for the proposed ballot of employees to take protected action. The dispute centred around the Cleanaway Solid Waste Services Geelong Depot (Municipal) Enterprise Agreement 2018.

The legal issues before the court included whether the union had genuinely tried to reach an agreement with the employer, and whether the form and content of the ballot order were appropriate. Additionally, the employer argued that as it had not issued a Notice of Employee Representational Rights to commence bargaining, the application should be dismissed. These arguments were addressed during a Mention conducted by the Deputy President, where it was clarified that the employer would not pursue its objections further.

The Deputy President found that the union had genuinely tried to reach an agreement with the employer and that the requirements in section 443(1) of the Act had been met. Consequently, the court was satisfied that there was a notification time in relation to the proposed agreement. The court proceeded to determine the matter on the papers without holding a hearing. An order has been separately issued in PR750697.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established