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

[2023] FWC 400

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

(B2023/120)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 17 FEBRUARY 2023

Proposed protected action ballot of employees of Cleanaway Operations Pty Ltd T/A Cleanaway – Cleanaway Latrobe, Surf Coast, Golden Plains & Hepburn (Municipal) 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 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, and also asserted that because it had not issued a Notice of Employee Representational Rights to commence bargaining, the application for a protected ballot order ought to be dismissed. I determined a Mention should be conducted, during which I discussed these concerns with the parties and other matters subsequently raised. Following the Mention, the Respondent confirmed it did not intend to pursue its objections further.

In the circumstances, 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 PR750701.

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 with the Fair Work Commission, seeking a protected action ballot order concerning certain employees of Cleanaway Operations Pty Ltd T/A Cleanaway. This application pertained to the Cleanaway Latrobe, Surf Coast, Golden Plains & Hepburn (Municipal) Enterprise Agreement 2017. The main contention arose from the form and content of the order, particularly the industrial action outlined in questions 6 and 7 of the draft order accompanying the application. Furthermore, Cleanaway Operations Pty Ltd T/A Cleanaway contended that the application for a protected ballot order should be dismissed as they had not issued a Notice of Employee Representational Rights to initiate bargaining. These objections were discussed during a Mention, after which the Respondent decided not to pursue them further.

The Fair Work Commission, Deputy President Clancy, assessed the matter based on the available documentation, including a declaration from Mr Greg Fleming of the Applicant. This declaration outlined the steps taken by the Applicant in negotiating with the Respondent and confirmed that they had been, and continued to be, genuinely attempting to reach an agreement with the Respondent. Deputy President Clancy determined that there was a notification period in relation to the proposed agreement and that the requirements in Section 443(1) of the Fair Work Act 2009 were fulfilled. Consequently, the court proceeded to determine the matter without the need for a hearing.

As a result, an order was issued in PR750701, granting the Transport Workers' Union of Australia the protected action ballot order they had sought for certain employees of Cleanaway Operations Pty Ltd T/A Cleanaway. The Respondent's objections regarding the form and content of the order, as well as their assertion that the application should be dismissed due to the lack of a Notice of Employee Representational Rights, were not upheld. This decision signifies the Fair Work Commission's recognition of the Applicant's efforts in negotiating with the Respondent and their commitment to reaching an 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