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

[2023] FWC 396

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

(B2023/116)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 17 FEBRUARY 2023

Proposed protected action ballot of employees of Cleanaway Operations Pty Ltd T/A Cleanaway - Cleanaway SEMTS & MRL Enterprise Agreement 2017.

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 PR750690.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case of Transport Workers’ Union of Australia v Cleanaway Operations Pty Ltd T/A Cleanaway was heard by the Fair Work Commission under section 437 of the Fair Work Act 2009. The Transport Workers’ Union of Australia sought a protected action ballot order concerning certain employees of Cleanaway Operations Pty Ltd, relating to the Cleanaway SEMTS & MRL Enterprise Agreement 2017. The application was made by the Union to facilitate a ballot for potential industrial action, which Cleanaway contested initially over the form and content of the ballot.

The primary legal issue before the Fair Work Commission was whether the Union had met the prerequisites for a protected action ballot as stipulated in the Fair Work Act. This included determining if the Union had genuinely attempted to reach an agreement with Cleanaway and if the notification period for the proposed agreement had been appropriately observed. The Commission also needed to consider whether the proposed industrial action was valid under the Act.

The Deputy President of the Fair Work Commission, Clancy, resolved the matter based on the documentation submitted, including a declaration by Mr. Greg Fleming of the Union. The declaration outlined the steps taken by the Union in its bargaining efforts with Cleanaway, confirming that it had been genuinely attempting to reach an agreement. The Deputy President concluded that the requirements of section 443(1) of the Fair Work Act were satisfied and that there was a valid notification period for the proposed agreement. Consequently, the objections raised by Cleanaway were deemed no longer relevant, and the Commission proceeded to grant the Union's application for a protected action ballot.

In summary, the Fair Work Commission granted the Transport Workers’ Union of Australia's application for a protected action ballot concerning the employees of Cleanaway Operations Pty Ltd. The Commission found that the Union had fulfilled the necessary conditions under the Fair Work Act, including demonstrating genuine bargaining efforts and adhering to the notification period for the proposed agreement.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established