s.437 - Application for a protected action ballot order

Proposed protected action ballot of employees of Cleanaway Operations Pty Ltd

• [1] This is an application by the Transport Workers' Union of Australia acting through its WA branch (TWU or 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 (Cleanaway or Employer).

• [2] I note that The Australian Workers' Union have made a separate application for a protected action ballot order in relation to the same proposed agreement, which was granted.[1]

• [3] On 12 June 2025, the Commission was advised that the Employer did not object to the Application, subject to there being an extended notice period of five (5) working days in relation to the proposed forms of industrial action. The TWU, in effect, accepted that there were the relevant exceptional circumstances and agreed to that amendment. I also observe that Cleanaway did clarify certain aspects of the prior negotiations which do not impact upon compliance with the statutory requirements to make the proposed order.

• [4] In the circumstances, I have decided to grant leave to amend the application and determine the matter on the papers without holding a hearing.

• [5] On the basis of the material before me, including the declaration of Alistair Ernest Gan-Son Outen, Organiser, setting out the steps taken by the TWU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Cleanaway, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.

• [6] The ballot is to be conducted by Vero Engagement & Voting Solutions Pty Ltd (Vero). Vero has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.

• [7] For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 26 June 2025.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

• [8] I am satisfied that there are relevant exceptional circumstances required by s.443(5), justifying an extended period of written notice for the purposes of s.414(2)(b) of the Act when taking industrial action set out in the Order made by the Commission. The extended notice period of five (5) working days applies to the items listed within Clause 5 of the Order.

• [9] An Order has been separately issued in PR788134.

• [10] This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. That Member will issue an Order requiring the attendance of all bargaining representatives in the proposed enterprise agreement at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

[2] This is, in effect, 10 working days from the making of the Order and was the period sought in the application.

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