National Union of Workers NSW Branch v DHL Supply Chain (Australia) Pty Limited

[2019] FWC 965

[2019] FWC 965

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot Order

National Union of Workers NSW Branch
v
DHL Supply Chain (Australia) Pty Limited
(B2019/115)

COMMISSIONER CAMBRIDGE SYDNEY, 20 FEBRUARY 2019

Proposed protected action ballot of employees of DHL Supply Chain (Australia) Pty Limited.

[1] On 13 February 2019, the National Union of Workers NSW Branch (NUW), made an application for a Protected Action Ballot Order. The application was made pursuant to section 437 of the Fair Work Act 2009 (the Act). The application was made in respect of members of the NUW who are employees of DHL Supply Chain (Australia) Pty Limited (the employer) whose employment is to be regulated by a proposed agreement to replace the DHL Supply Chain (Australia) Pty Ltd and National Union of Workers New South Wales Branch Business Services Enterprise Agreement - New South Wales 2015.

[2] The application seeks a ballot of employees of the employer who are members of the NUW who would be covered by a proposed enterprise agreement. The application was supplemented with the Statutory Declaration of Charlie Morgan (the Statutory Declaration) dated 13 February 2019. In summary, the Statutory Declaration provided information about events involving attempts made by the NUW to reach agreement with the employer on the terms of a proposed enterprise agreement.

[3] The Fair Work Commission (the Commission) received communication dated 14 February 2019, advising that the employer opposed the application for a Protected Action Ballot Order. Consequently, the application was listed for Hearing before the Commission in Sydney on 20 February 2019, at which time Mr C Shannon appeared for the NUW and there was no appearance by or on behalf of the employer. The employer provided correspondence to the Commission on 19 February 2019 which advised that the employer did not intend to appear at the Hearing, and instead provide a written submission.

[4] The determination of this matter is primarily governed by the provisions of section 443 of the Act. Section 443 is in the following terms:

“443 When the FWC must make a protected action ballot order

(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(a) the name of each applicant for the order;

(b) the group or groups of employees who are to be balloted;

(c) the date by which voting in the protected action ballot closes;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(4) If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.

Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.”

[5] At the Hearing held today, Mr Shannon from the NUW tendered the Statutory Declaration which became Exhibit 1. The contents of Exhibit 1 were, in the absence of the employer, not the subject of any identified contest.

[6] The Hearing was conducted so as to enable the employer to advance its case in opposition to the application. However, the employer did not provide any evidence to the Commission to support its position. The written submissions of the employer cannot, in the absence of any articulated support, be treated as evidence upon which any opposition to the application could be properly considered.

[7] Consequently, I am satisfied that the application has been made in accordance with section 437 of the Act. Further, I am satisfied that the applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted. In addition, I am satisfied that the requirements of sections 438 and 440 of the Act have also been met.

[8] Therefore, pursuant to subsection 443(1) of the Act, the Commission must make a Protected Action Ballot Order. The Order shall be made in the terms as broadly sought by the NUW. Accordingly an Order [PR704949] is issued separately.

COMMISSIONER

Appearances:

Mr C Shannon appearedfor The National Union of Workers.

Hearing details:

2019.

Sydney:

February, 20

Printed by authority of the Commonwealth Government Printer

<PR704948>