Fair Work Act 2009
s.604—Appeal of decision

Transport Workers’ Union of Australia
v
Cleanaway Operations Pty Ltd
(C2022/7913)

Appeal against decision [2022] FWC 3136 of Deputy President Dean at Canberra on 30 November 2022 in matter number B2022/1705.

[1] On 1 December 2022, the Transport Workers’ Union of Australia (TWU) lodged an appeal, for which permission is required, against a decision of Deputy President Dean dated 30 November 2022. 1 The decision concerned an application for a protected action ballot made by the TWU pursuant to s 437 of the Fair Work Act 2009 (FW Act). The order sought by the TWU was for a ballot of employees of Cleanaway Operations Pty Ltd (Cleanaway) who are members of the TWU and represented by the TWU for a proposed enterprise agreement to replace the Cleanaway Health Services Silverwater NSW Operations Enterprise Agreement 2019. The proposed agreement, like the existing agreement, would cover truck drivers and plant operators employed by Cleanaway at its site in Silverwater, NSW. Cleanaway operates a business which removes and disposes of health-related waste at that site.

[2] Section 437(3)(a) of the FW Act requires an application for a protected action ballot order to specify the group(s) of employees to be balloted, and s 437(5) provides, relevantly, that the specified group of employees may only include employees who will be covered by the proposed agreement and are represented by a bargaining representative who is an applicant for the order. Section 176(3) provides that an employee organisation (such as the TWU) cannot be a bargaining representative of an employee unless the organisation is entitled to represent the industrial interests of the employee in relation to work that will be performed under the agreement.

[3] Before the Deputy President, Cleanaway contended that the TWU could not be the bargaining representative of the plant operators which it employed at the Silverwater site because it is not entitled to represent their industrial interests and, consequently, such employees could not be included in the group of employees to be balloted in the protected action ballot order which the TWU sought. The Deputy President upheld this contention, although the exclusion of plant operators from the group of employees to be balloted was not expressly specified in the protected action ballot order which she made in conjunction with the decision. 2

[4] In its appeal, the TWU contends that the Deputy President erred in concluding that it is not entitled to represent the industrial interests of the plant operators. The TWU sought, and was granted, an expedited hearing of its appeal because the Deputy President’s order made on 30 November 2022 requires that voting in the ballot is to conclude no later that 30 days from the date of the order (that is, by 30 December 2022). The hearing before us took place on 15 December 2022.

[5] Because of the same consideration of urgency which caused the appeal to be heard on an expedited basis, we have determined that the appropriate course is to deliver our decision on the appeal now and publish our full reasons for this decision at a later time.

[6] We have concluded that the Deputy President’s finding that the TWU is not entitled to represent the industrial interests of the plant operators at the Silverwater site was in error, and that such employees should have been included in the group of employees to be balloted specified in the order which the Deputy President made. Accordingly, we make the following orders:

1. Permission to appeal is granted.

2. The appeal is upheld.

3. The decision of Deputy President Dean of 30 November 2022 ([2022] FWC 3136) is quashed to the extent the Deputy President determined that the TWU was not the bargaining representative for plant operators employed at the Silverwater site and that such plant operators were not to be included in the group of employees to be balloted under s 443(3)(b) of the FW Act.

4. Clause 3 of the protected action ballot order issued on 30 November 2022 (PR748318) is varied to provide as follows:

In accordance with s.437(5) of the Act, the employees to be balloted are those who will be covered by the proposed enterprise agreement and are represented by the bargaining representative who is the applicant for this protected action ballot order. This will include truck drivers and plant operators.

ACTING PRESIDENT

Appearances:

M Gibian SC with P Boncardo of counsel for the appellant.
M Follett of counsel with M Garozzo of counsel for the respondent.

Hearing details:

2022.
Sydney, Melbourne and Brisbane by video link using Microsoft Teams:
15 December.

Printed by authority of the Commonwealth Government Printer

<PR749008>

 1   [2022] FWC 3136

 2   PR748318