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

[2022] FWC 1390

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

(B2022/516)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 2 JUNE 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 (the Respondent).

On 2 June 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 Simon Russell 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 PR742260.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Transport Workers' Union of Australia (Applicant) applied to the Fair Work Commission under section 437 of the Fair Work Act 2009 for a protected action ballot order concerning specific employees of Cleanaway Operations Pty Ltd, trading as Cleanaway (Respondent). The application was made in relation to a proposed protected action ballot of employees. The Commission was not required to hold a hearing as the Respondent did not object to the application. The decision was made based on the papers submitted, including a declaration from Mr Simon Russell of the Applicant, which outlined the steps taken by the union in bargaining with the Respondent and the union's genuine attempt to reach an agreement.

The legal issue before the Fair Work Commission was whether the requirements for a protected action ballot under the Fair Work Act had been met. Specifically, the Commission had to determine if the notification time for the proposed agreement had been satisfied and whether the conditions set out in section 443(1) of the Act had been met. The Commission needed to consider the declaration from Mr Simon Russell and other relevant materials to make its decision.

The Deputy President, having reviewed the materials submitted, was satisfied that the notification time in relation to the proposed agreement had been met and that the requirements of section 443(1) of the Act had been fulfilled. Based on this, the Deputy President granted the application for a protected action ballot order. A separate order was issued in PR742260, reflecting the decision made by the Commission.

In summary, the Fair Work Commission granted the Transport Workers' Union of Australia's application for a protected action ballot order concerning employees of Cleanaway Operations Pty Ltd, finding that the notification time had been met and the statutory requirements were satisfied. The decision was made without a hearing as the Respondent did not object to the application.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established