Transport Workers' Union of Australia v Cleanaway Waste Management Limited T/A Cleanaway Summary

[2022] FWC 1221

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Transport Workers’ Union of Australia
v

Cleanaway Waste Management Limited T/A Cleanaway

(B2022/445)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 19 MAY 2022

Proposed protected action ballot of employees of Cleanaway Waste Management Limited

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 Waste Management Limited T/A Cleanaway (the Respondent).

On 18 May 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 Simon Russell 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 PR741749.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Transport Workers' Union of Australia sought a protected action ballot order against Cleanaway Waste Management Limited T/A Cleanaway under section 437 of the Fair Work Act 2009. The union aimed to conduct a ballot among certain employees to determine their willingness to take protected action. Cleanaway Waste Management Limited did not object to the union's application, resulting in the matter being determined on the papers without a formal hearing.

The primary legal issue before the court was whether the union had satisfied the requirements under the Fair Work Act to conduct a protected action ballot. Specifically, the court had to determine whether the union had genuinely tried to reach an agreement with Cleanaway Waste Management Limited and if the notification time for the proposed agreement was appropriate. These determinations were crucial to establishing the union's eligibility to proceed with the ballot under the Act.

In considering the application, the Deputy President reviewed the declaration provided by Mr. Simon Russell of the Transport Workers' Union of Australia, which detailed the union's bargaining efforts with Cleanaway Waste Management Limited. The declaration included evidence of the union's attempts to reach an agreement and demonstrated that the union had been genuinely trying to resolve the dispute. Additionally, the Deputy President was satisfied that the notification time in relation to the proposed agreement was appropriate, and the requirements under section 443(1) of the Act had been met. Consequently, the court granted the union's application for a protected action ballot order.

The final orders of the court permitted the Transport Workers' Union of Australia to proceed with the ballot among the specified employees of Cleanaway Waste Management Limited. This decision allowed the union to gauge employee sentiment and potentially take protected action if deemed necessary to resolve the ongoing dispute with the employer.

Transport Workers' Union of Australia v Cleanaway Waste Management Limited 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