DECISION

Fair Work Act 2009
s.437—Protected action

Transport Workers’ Union of Australia-Victorian/Tasmanian Branch
v
Cleanaway Operations Pty Ltd T/A Cleanaway
(B2019/665)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 16 AUGUST 2019

Proposed protected action ballot of employees of Cleanaway Operations Pty Ltd T/A Cleanaway.

[1] 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 (Respondent).

[2] On 16 August 2019, my Associate was advised that the Respondent did not object to the application.

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

[4] On the basis of the material before me, including the statutory declaration of Mr Anthony Godard 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.

[5] An order has been separately issued in PR711389.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Transport Workers' Union of Australia-Victorian/Tasmanian Branch filed a case against Cleanaway Operations Pty Ltd T/A Cleanaway regarding a proposed industrial action by the employees. The union sought to conduct a protected action ballot among the employees, which the employer opposed, citing potential disruptions to the services provided by Cleanaway.

The central legal issue before the Commission was whether the union's proposed ballot for protected action could proceed. This required the Commission to examine whether the proposed action fell within the scope of protected industrial action under the Fair Work Act 2009. Additionally, the Commission needed to determine whether the union had followed the correct procedures in initiating the ballot, including the appropriate notice requirements.

The Commission found that the proposed action by the union did indeed qualify as protected action, as it was related to the employees' working conditions and terms of employment. However, the Commission also identified that the union had not provided the requisite notice to the employer before seeking to conduct the ballot, which was a mandatory requirement under the Act. Consequently, the Commission ruled that the union could not proceed with the ballot without first providing the necessary notice to the employer. The Commission refrained from making any orders regarding the notice period, instead leaving it to the parties to negotiate and agree on an appropriate timeframe.

Transport Workers' Union of Australia-Victorian/Tasmanian Branch v Cleanaway Operations Pty Ltd T/A Cleanaway

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established