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

[2023] FWC 399

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

(B2023/121)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 17 FEBRUARY 2023

Proposed protected action ballot of employees of Cleanaway Operations Pty Ltd Trading As Cleanaway - Cleanaway Solid Waste Services Geelong (Commercial & Industrial) Enterprise Agreement 2020.

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 initially 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. I determined a Mention should be conducted, during which I discussed these concerns with the parties and other matters subsequently raised. During the Mention, the Respondent advised that it did not intend to pursue its objections further.

With the Mention having resolved the various matters raised, 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 PR750698.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Transport Workers' Union of Australia sought a protected action ballot order against Cleanaway Operations Pty Ltd T/A Cleanaway, regarding employees covered under the Cleanaway Solid Waste Services Geelong (Commercial & Industrial) Enterprise Agreement 2020. The case was heard by the Fair Work Commission under section 437 of the Fair Work Act 2009. The union's application was made to facilitate a ballot among the employees for potential industrial action, as part of ongoing negotiations for a new enterprise agreement.

The legal issues before the Commission involved whether the union had genuinely been attempting to negotiate in good faith with Cleanaway and whether the requirements for a protected action ballot, as outlined in section 443(1) of the Act, were met. The Commission had to assess the union's declaration, which detailed the steps taken during the bargaining process, and determine if there was a notification period as required by law. Additionally, the form and content of the proposed ballot needed to be reviewed, particularly the industrial action specified in questions 6 and 7 of the draft order.

The Commission found that the union had indeed been genuinely attempting to reach an agreement with Cleanaway, as evidenced by the declaration of Mr Greg Fleming. The concerns raised by Cleanaway regarding the form and content of the ballot were addressed during a Mention, where it was decided that the union's objections would not be pursued further. Consequently, the Commission proceeded to make its decision on the papers without the need for a hearing. It was concluded that the notification time for the proposed agreement had been met, and all requirements under section 443(1) of the Act were satisfied.

The Commission issued an order for a protected action ballot, as requested by the union. This decision allows the Transport Workers' Union of Australia to proceed with the ballot among the employees of Cleanaway Operations Pty Ltd, provided all legal requirements are met.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established