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

[2022] FWC 898

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

(B2022/326)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 19 APRIL 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 19 April 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 Anthony Goddard 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 PR740469.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Transport Workers’ Union of Australia (the Applicant) filed an application under section 437 of the Fair Work Act 2009 seeking a protected action ballot order for certain employees of Cleanaway Operations Pty Ltd, trading as Cleanaway (the Respondent). The dispute revolves around the proposed protected action ballot by the employees. The matter was heard by Deputy President Clancy of the Fair Work Commission on 19 April 2022 in Melbourne. Given the Respondent's lack of objection, the Deputy President opted to proceed with the decision based on the submitted documents without the need for a hearing.

The primary legal issue before the court was whether the requirements for a protected action ballot, as stipulated in section 443(1) of the Act, had been fulfilled. This involved assessing the validity of the notification time and the genuine efforts made by the Applicant in bargaining with the Respondent. The Applicant's declaration, provided by Mr Anthony Goddard, detailed the bargaining process and the union's efforts to reach an agreement with the Respondent. The court had to determine if these efforts met the legal criteria for granting the ballot order.

Upon reviewing the evidence, Deputy President Clancy was satisfied that the notification period for the proposed agreement was valid and that the Applicant had genuinely tried to reach an agreement with the Respondent. Consequently, the requirements for the protected action ballot order were met. The court's decision was influenced by the Applicant's declaration and the absence of objections from the Respondent. As a result, the court granted the application for the ballot order.

In conclusion, the Fair Work Commission, under Deputy President Clancy, determined that the conditions for a protected action ballot were satisfied. The court issued an order for the ballot, reflecting the union's genuine bargaining efforts and the validity of the notification period. This decision was documented in PR740469 and was made without the necessity of a hearing due to the Respondent's non-objection.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established