Transport Workers' Union of Australia v Cleanaway Waste Management Limited

[2018] FWC 7480

[2018] FWC 7480

FAIR WORK COMMISSION

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

<PR702993>

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

 2   PR702994.