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

[2023] FWC 862

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 Operations Pty Ltd

(B2023/324)

VICE PRESIDENT CATANZARITI

SYDNEY, 11 APRIL 2023

Proposed protected action ballot of employees of Cleanaway Operations Pty Ltd

This is an application by the Transport Workers’ Union of Australia (Applicant) made under s.437 of the Fair Work Act 2009 (Cth) (Act) for a protected action ballot order in relation to certain employees of Cleanaway Operations Pty Ltd (Respondent).

On 6 April 2023, the Fair Work Commission was advised that the Respondent did not oppose 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 statutory declaration of Ryan Smith of the Applicant declared on 5 April 2023, 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 PR760994.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was presented with an application by the Transport Workers' Union of Australia (Applicant) under section 437 of the Fair Work Act 2009 (Cth) for a protected action ballot order concerning certain employees of Cleanaway Operations Pty Ltd (Respondent). The union sought to conduct a ballot for protected action in relation to its employees. Notably, the Respondent did not oppose the application, and the matter was determined by the Commission on the submitted documentation without the need for a hearing. The application was based on the statutory declaration of Ryan Smith of the Applicant, which detailed the union's efforts in bargaining with the Respondent and affirmed that the union had been genuinely attempting to reach an agreement.

The central legal issue before the Commission was whether the conditions for a protected action ballot, as stipulated in section 443(1) of the Fair Work Act, were satisfied. This required a determination of whether the union had genuinely been attempting to negotiate in good faith with the employer and whether the statutory notification period for protected action had been met. The Commission considered the evidence provided by the union, which included the statutory declaration outlining the bargaining process and the union's efforts to reach an agreement with the Respondent.

After reviewing the material, Vice President Catanzariti concluded that the union had indeed met the requirements for a protected action ballot. The union's declaration and the absence of opposition from the Respondent provided sufficient evidence that the union had been genuinely attempting to negotiate in good faith and that the notification period had been adhered to. Therefore, the application was successful, and the Commission issued an order permitting the union to proceed with the ballot.

The final orders were issued in PR760994, allowing the Transport Workers' Union of Australia to conduct the proposed protected action ballot for its employees at Cleanaway Operations Pty Ltd. The decision underscores the Commission's role in facilitating fair and lawful industrial action when the statutory 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