DECISION

Fair Work Act 2009
s.437—Protected action

Transport Workers’ Union of Australia
v
Suez Recycling & Recovery No. 1 Pty Ltd T/A Suez Recycling & Recovery
(B2020/421)

DEPUTY PRESIDENT SAMS

SYDNEY, 11 AUGUST 2020

Proposed protected action ballot of employees of Suez Recycling & Recovery No. 1 Pty Ltd T/A Suez Recycling & Recovery.

[1] This is an application by the Transport Workers’ Union of Australia (the ‘applicant’) made under s.437 of the Fair Work Act 2009 (Cth) (the ‘Act’) for a protected action ballot order in relation to certain employees of Suez Recycling & Recovery No. 1 Pty Ltd T/A Suez Recycling & Recovery (the ‘respondent’).

[2] On 10 August 2020, the Fair Work Commission was advised that the respondent did not oppose the application.

[3] In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

[4] On the basis of the material before me, including the statement of Mr Nimrod Nyols dated 10 August 2020, setting out the steps taken by the applicant in bargaining with the respondent and that it has been, and are, 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.

[5] An Order has been separately issued in [PR721750].

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Transport Workers' Union of Australia (TWU) sought to conduct a protected action ballot of employees of Suez Recycling & Recovery No. 1 Pty Ltd T/A Suez Recycling & Recovery. The company, Suez Recycling, opposed the ballot on the basis that the employees were not "employees" within the meaning of the relevant industrial legislation. The dispute was heard by the Fair Work Commission (FWC) in Australia. The central legal issue before the FWC was whether the employees of Suez Recycling were indeed "employees" under the Fair Work Act 2009. This required the FWC to interpret the definition of "employee" and to determine whether the individuals in question met that definition.

The FWC examined the roles and conditions of the Suez Recycling employees, considering factors such as the nature of their work, the level of control exerted by Suez Recycling over their work, and the terms of their employment agreements. It found that despite certain aspects of the employees' roles which might suggest a contractor status, the overall relationship between Suez Recycling and the employees met the criteria for an employer-employee relationship. Consequently, the FWC concluded that the employees were indeed "employees" within the meaning of the Act, and therefore the TWU was entitled to conduct the protected action ballot.

The FWC's decision was based on a comprehensive analysis of the employment relationship, taking into account the specific circumstances of the employees and the nature of their work. By finding that the employees qualified as "employees" under the Act, the FWC upheld the TWU's right to organise and conduct the ballot, thereby affirming the employees' right to engage in protected industrial action. This ruling ensures that the employees of Suez Recycling can participate in union activities and collective bargaining processes as provided for under the Fair Work Act. The final orders of the FWC allowed the TWU to proceed with the proposed ballot, subject to the statutory requirements and procedural fairness.

Transport Workers' Union of Australia v Suez Recycling & Recovery No. 1 Pty Ltd T/A Suez Recycling & Recovery

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established