v Cleanaway Operations Pty Ltd T/A Cleanaway

[2024] FWC 2829

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.459 - Application to extend the 30 day period in which industrial action is authorised by protected action ballot

Transport Workers' Union of Australia

Cleanaway Operations Pty Ltd T/A Cleanaway

(B2024/1322)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 10 OCTOBER 2024

Application to extend the 30 day period in relation to B2024/1093.

This matter concerns the declaration of the result of a protected action ballot PR778705 held in matter B2024/1093 and declared on 11 September 2024.

The Transport Workers' Union of Australia has made an application pursuant to s.459(3) of the Fair Work Act 2009 (Act) to extend the 30 day period in which industrial action is authorised by the relevant protected action ballot.

Section 459(3) of the Act provides as follows:

“(3) The FWC may extend the 30-day period referred to in subparagraph (1)(d)(i) by up to 30 days if:

(a) an applicant for the protected action ballot order applies to the FWC for the period to be extended; and

(b) the period has not previously been extended.”

The application contends that each of the relevant requirements have been met and that the period should be extended by a further 30 days.

Cleanaway Operations Pty Ltd trading as Cleanaway has advised the Commission it has no objection to this application.

I am satisfied that the relevant requirements of the Act have been met and that the application should be granted.

Accordingly, pursuant to section 459(3) of the Act, I order that the 30 day period for the commencement of protected industrial action for eligible employees who were subject to the ballot and are employed by the Employer be extended by a further 30 days.

This order will operate on and from 10 October 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by the Transport Workers' Union of Australia to extend the 30-day period during which industrial action was authorised by a protected action ballot. The application was made under section 459(3) of the Fair Work Act 2009. The union sought an extension in relation to ballot PR778705, which had been declared on 11 September 2024 in matter B2024/1093. The application was heard by Deputy President Hampton in Adelaide on 10 October 2024.

The primary legal issue for the court was whether the requirements of section 459(3) of the Act had been met to justify an extension of the 30-day period. The union argued that they had satisfied all necessary conditions, including that the period had not previously been extended. Cleanaway Operations Pty Ltd, the employer, did not object to the application. The court needed to determine whether the application met the statutory criteria and whether there were any other considerations that should affect the decision.

After considering the application, the Deputy President found that the union had indeed met the requirements set out in section 459(3) of the Act. The court was satisfied that no prior extension had been granted and that Cleanaway had no objections. Therefore, the court ruled in favour of the union’s application. The Deputy President ordered that the 30-day period for the commencement of protected industrial action be extended by a further 30 days from 10 October 2024.

This decision ensures that eligible employees who were subject to the ballot can continue to be protected under the extended period, allowing for potential industrial action if necessary. The order is effective from 10 October 2024, providing clarity and legal standing for the union's actions in relation to the ballot.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Legal Principle Established