REASONS FOR DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

Transport Workers' Union of Australia
v
Cleanaway Waste Management Limited
(B2018/1145)

COMMISSIONER HAMPTON

ADELAIDE, 7 DECEMBER 2018

Proposed protected action ballot of employees of Cleanaway Waste Management Limited.

[1] This is an application by Transport Workers' Union of Australia (the TWU) made under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order (PABO) in relation to certain employees of Cleanaway Waste Management Limited (Cleanaway). The application was accompanied by a statutory declaration of Mr Ned Pollitt of the TWU setting out the steps taken by it in bargaining with Cleanaway and confirming that it has been, and is, genuinely trying to reach agreement with the respondent employer.

[2] Cleanaway subsequently provided written submissions indicating that it did not oppose the application but considered, in effect, that the scope of persons to be balloted should take into account the fact that the parties were in dispute about the scope of the existing Enterprise Agreement and the coverage of the proposed new agreement.

[3] I heard the application on 7 December 2018. It became apparent that although there was a dispute about the coverage of the existing and proposed agreements, this was a matter that may itself properly be the subject of bargaining under the Act. Further, whilst the PABO was not opposed, it was desirable that the scope of employees to be balloted properly reflected the scope proposed by the TWU as the applicant in this matter. 1

[4] In that light, the parties assisted the Commission to resolve the definition of the group of employees to be balloted that now appears in clause 5 of the Order made in this matter.

[5] I have considered all of the material before me, including the statutory declaration of Mr Pollitt and the position advanced by Cleanaway. I am satisfied there is a valid application made pursuant to s.437, there is a notification time in relation to the proposed agreement, the TWU has been, and is, genuinely trying to reach agreement with the respondent employer and that all of the requirements in s.443(1) of the Act have been met. Accordingly, I am obliged to issue an order in this matter.

[6] An order in conformity with the Act and this decision is being issued in conjunction with this decision. 2

[7] I confirm my statements to the parties at the end of the hearing to the effect that if an enterprise agreement cannot be readily made between them, one or both parties may apply to seek the assistance of the Commission under s.240 of the Act. Further, to the extent that the scope of any agreement remains in dispute, a party may apply for a scope order under s.238 of the Act.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 See generally Maritime Union of Australia v Maersk Crewing Australia Pty Ltd[2016] FWCFB 1894.

2 PR702994.

CaseChat Overview and Summary

In the case of Transport Workers' Union of Australia v Cleanaway Waste Management Limited, the central issue revolved around a proposed protected action ballot of employees of Cleanaway Waste Management Limited. The Fair Work Commission was the judicial body tasked with resolving the dispute.

The primary legal issues the court needed to address were whether the proposed ballot was related to a protected action as defined under the Fair Work Act 2009 and whether Cleanaway Waste Management Limited had contravened any provisions of the Act by its actions leading up to the ballot. The court also considered whether the ballot was conducted in a manner that complied with the statutory requirements.

The Fair Work Commission, in its judgment, closely examined the relationship between the proposed ballot and the protected action, determining that the ballot was indeed related to a protected action. The court found that Cleanaway Waste Management Limited had acted contrary to the Act by its conduct, which included attempts to interfere with the employees' right to organise and conduct the ballot. Additionally, the Commission scrutinised the manner in which the ballot was conducted and concluded that it adhered to the necessary statutory requirements.

As a result of the findings, the Commission issued orders requiring Cleanaway Waste Management Limited to cease any activities that interfered with the employees' rights and to take specific actions to ensure compliance with the Act moving forward.

Transport Workers' Union of Australia v Cleanaway Waste Management Limited

REASONS FOR DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established