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

[2022] FWC 2508

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Transport Workers’ Union of Australia

Cleanaway Operations Pty Ltd T/A Cleanaway

(B2022/1402)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 19 SEPTEMBER 2022

Proposed protected action ballot of employees of Cleanaway Operations Pty Ltd T/A Cleanaway.

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 (Respondent).

On 19 September 2022, my Associate was advised that the Respondent did not object to the application.

In the circumstances, I have decided 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 PR746000.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Transport Workers' Union of Australia filed an application under section 437 of the Fair Work Act 2009 for a protected action ballot order concerning certain employees of Cleanaway Operations Pty Ltd. The application was made in response to the union's efforts to reach an agreement with the respondent regarding certain terms and conditions of employment. The Fair Work Commission was tasked with determining the matter on the basis of the information provided, as the respondent did not object to the application and no hearing was deemed necessary.

The legal issues at the heart of this case revolved around whether the union had genuinely attempted to negotiate in good faith with Cleanaway Operations and whether the statutory notification period had been properly observed. The union submitted a declaration from Mr Greg Fleming, outlining the steps taken in bargaining and asserting that the union had been genuinely trying to reach an agreement with the respondent. The Commission needed to assess the validity of the union's claim and whether the requirements of section 443(1) of the Fair Work Act had been satisfied.

The Deputy President, Clancy, found that the union had indeed been making genuine efforts to reach an agreement with the respondent, as evidenced by the declaration and the steps taken in bargaining. Furthermore, the notification period was observed, and the requirements of section 443(1) of the Act were met. Consequently, the Deputy President was satisfied that the union had met the necessary criteria for a protected action ballot order. An order was subsequently issued in PR746000, granting the union the right to proceed with the ballot.

In conclusion, the Fair Work Commission granted the Transport Workers' Union of Australia's application for a protected action ballot order in relation to certain employees of Cleanaway Operations Pty Ltd. The decision was based on the union's genuine efforts in bargaining and the compliance with the statutory notification period. The union is now authorised to proceed with the ballot, as per the order issued in PR746000.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established