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

[2019] FWC 835

[2019] FWC 835

FAIR WORK COMMISSION

DECISION

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

National Union of Workers
v
DHL Supply Chain (Australia) Pty Limited
(B2019/90; B2019/92)

DEPUTY PRESIDENT COLMAN MELBOURNE, 12 FEBRUARY 2019

Proposed protected action ballots of employees of DHL Supply Chain (Australia) Pty Limited – separate applications for two groups – all employees to be covered by one proposed agreement – requirements of the Act met – orders issued.

[1] On 11 February 2019, I issued protected action ballot orders in respect of two applications made by the National Union of Workers (NUW). I indicated to the parties that I would publish my reasons for the decision to make the orders in due course. These are my reasons.

[2] On 6 February 2019, the NUW filed two applications for protected action ballot orders pursuant to s 437 of the Fair Work Act 2009 (Act). One application concerned a proposed ballot of employees of DHL Supply Chain (Australia) Pty Limited (DHL) who are members of the NUW performing work at 26-38 Harcourt Road, Altona in Victoria 1 (‘the Altona application’). The other concerned employees of DHL who are members of the NUW performing work at 20 Park West Drive, Derrimut, 70 Park West Drive, Derrimut, and 3 John Deere Court, Derrimut2 (‘the Derrimut application’). On 7 February 2019, the union filed an amended Derrimut application, correcting a mistake in the address of one of the three Derrimut sites.

[3] The two applications were allocated to my chambers on 7 February 2019. On Friday 8 February DHL confirmed to the Commission that it opposed the applications. Section 441 of the Act provides that the Commission must, as far as practicable, determine an application for a protected action ballot order within 2 working days after the application is made. Accordingly, I listed the two applications for hearing at 10.00am on Monday, 11 February 2019.

[4] Mr Toner, industrial officer of the NUW, appeared for the union in both matters, and Mr Jonathan Dixon, NUW organiser, gave evidence for the union. Mr Wimalaratna, senior employee relations specialist, appeared for DHL. The company did not lead evidence.

[5] Given the common factual setting of the two matters, I have considered it appropriate to issue written reasons that address both applications and orders.

Statutory framework

[6] Section 437 of the Act enables a bargaining representative to apply for a protected action ballot order. Subject to the restrictions in s 437(2A) and s 438 (which are not presently relevant), the Commission must make an order in relation to employees who will be covered by a proposed agreement in the circumstances set out in s 443. This section provides:

“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).”

[7] Whether an applicant has been, and is, genuinely trying to reach an agreement is a question of fact to be decided by reference to all of the circumstances of the bargaining in question. 3 It will involve consideration of the negotiations and the steps taken in order to try to reach agreement.4 There are two temporal components to s 443; the Commission must be satisfied that the applicant has been genuinely trying to reach agreement, and that it is genuinely trying to reach agreement.

[8] The background to the applications is set out the statutory declarations of Mr Dixon that accompanied the filing of the two applications, and was further described in Mr Dixon’s oral evidence. It can be summarised as follows.

[9] On or about 10 December 2018, the NUW served a log of claims on DHL, setting out terms or matters that it sought to be included in a new enterprise agreement. 5 Since that time there have been two bargaining meetings. Mr Dixon said that at the second meeting, the company stated that its wages policy was to afford only a 2.5% wage increase, whereas the union’s log of claims seeks a 7% annual increase. Mr Dixon said that the company rejected most of the other claims in the log, including the claims for the provision of rostered days off and the introduction of a fair heat policy. However, he said that some progress had been made, namely in relation to the union’s meal allowance claim. He also said that it had been agreed that the current enterprise agreement, the DHL Supply Chain (Australia) Pty Limited General Logistics Agreement – Victoria 2015 (2015 Agreement), would be the basis for the new agreement. Mr Dixon said that his objective in the two meetings was to seek agreement with the company in relation to the terms of a new enterprise agreement.

[10] In its submissions, the company characterised the bargaining to date as having involved only two meetings, only one of which was substantive, that a third meeting had been scheduled for 6 February 2019 but was cancelled by the union, and that another meeting will occur on 20 February 2019. It said that bargaining remained at an early stage.

[11] I accept Mr Dixon’s evidence about the two bargaining meetings. It was not factually contentious. The company disputed the genuineness of the union’s efforts to reach agreement. However, the company led no evidence to contradict Mr Dixon’s statement that his purpose in the two meetings was to reach agreement with the company for a new enterprise agreement, and that the union was and has been genuinely trying to reach agreement, nor did the company seek to challenge this evidence in cross-examination.

[12] In support of its objections to the NUW’s applications, the company made the following submissions.

[13] First, DHL said that the union’s applications for protected action ballot orders were premature, because they were made after only two bargaining meetings had taken place. I do not accept this contention. There is no requirement that bargaining must have reached a particular stage of maturity. Section 443 states that the Commission ‘must make a protected action ballot order in relation to a proposed enterprise agreement’ if an application has been made under s 437 and the Commission is 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.’ Here, a log of claims has been served. It has been the subject of negotiations. It is clear that the employer has not agreed to most of the claims but, as Mr Dixon says, some modest progress has been made. I also note that there is no suggestion that the bargaining that has occurred to date has been superficial or perfunctory, or that the applications have been made for any extraneous purpose. These circumstances support a conclusion that the union has been, and is, genuinely trying to reach agreement with the employer.

[14] Secondly, the company says that the union is not genuinely trying to reach agreement because it has made applications for two separate protected action ballot orders in respect of Altona and the Derrimut sites, but has at no time indicated to the company that it seeks separate agreements for those sites. However, during the hearing, the union said that it is seeking only one enterprise agreement to replace the 2015 Agreement, not separate agreements at the two sites. This is consistent with the position that it has held during the bargaining to date. I do not consider these circumstances to cast any doubt on the union’s position that it is, and has been, genuinely trying to reach an agreement with the company.

[15] Thirdly, the company contended that the protected action ballot provisions in Division 8 of Part 3-3 should not be read in a way that would allow a union to make separate protected action ballot applications in respect of different groups of employees who would be covered by the same proposed agreement. It said that this would allow a union to group employees in such a way as to suit its industrial purposes, for example, to enhance the prospect of support for protected action at particular sites. The company said that this was contrary to the object of the division, which is to establish a fair, simple and democratic process to allow bargaining representatives to determine whether employees wish to engage in particular protected industrial action for a proposed enterprise agreement (s 436).

[16] I reject this contention. I cannot identify any requirement in Division 8 of Part 3-3 that a bargaining representative make a single ballot order application in respect of the proposed agreement. Section 437(1) states that ‘a bargaining representative of an employee who will be covered by a proposed agreement’ may apply to the Commission for an order ‘to determine whether employees wish to engage in protected action ‘for the agreement.’ There is no restriction on the number of applications that can be made. In fact, s 442 provides that the Commission may deal with two or more applications for protected action ballot orders at the same time, if the applications relate to action by employees of the same employer or employees at the same workplace. This most obviously contemplates multiple applications by different bargaining representatives, but it is also consistent with a framework that permits a single bargaining representative to make multiple applications in respect of employees who will be covered by a proposed agreement.

[17] Further, s 443(3)(b) provides that the application must specify the ‘group or groups of employees who are to be balloted’. The fact that the ‘group or groups’ must be specified suggests that the applicant for the ballot order might not seek all persons it represents to be balloted; otherwise, the group would be self-evident, namely the employees who are represented by the bargaining representative and will be covered by the proposed agreement. If it is possible to ballot some but not other relevant employees, it is also possible to ballot different groups separately. I note that the NUW in these matters has specified the relevant group in each application. DHL sought to argue that the groups were not specified, in the sense that the two groups were not differentiated from one another. But this is not the case. Each group is clearly identified by reference to the place where the relevant employees work. The Altona application seeks to ballot DHL employees at Altona who would be covered by the proposed agreement and are represented by the NUW. The Derrimut agreement does the same, mutatis mutandis, in respect of the Derrimut sites. They are geographically-specific ballot applications.

[18] Save for the matters in s 437(5), there is no express qualification on who might comprise the group or groups of employees. A bargaining representative might choose to ballot only some of its members, perhaps those performing a particular function or those at particular sites. The company said that in this case, there is no operational difference between duties performed by employees at Altona and those at the Derrimut sites. It also notes that the question to be put to employees pursuant to each application is the same, namely whether employees support protected action for a new enterprise agreement in the form of indefinite stoppages. But I do not consider that these circumstances have any bearing on whether the applications should be approved. I note that, unlike other parts of the Act, there is no requirement in Division 8 of Part 3-3 for the group of employees to be ‘fairly chosen’. By this I do not imply that the present groups are not fairly chosen. Rather, I contrast the general reference to ‘group or groups’ in s 443 with groups that elsewhere in the Act must be chosen in a particular way (e.g. s 237(2)(c)).

[19] I do not accept the company’s contention that, if the Commission granted the two applications, it would undermine the democratic process contemplated by s 436. This dimension of the object of the Division is intended to provide for industrial democracy in respect of the group of employees which is asked to support protected industrial action. In the present case, employees at Altona and employees at the Derrimut sites will be asked if they support protected industrial action. Employees in each group will be free to cast their ballot. If employees in either group are not happy about being balloted as two groups, they can vote no. As to the argument that the union is or may be seeking to structure its ballot applications to increase the potential effectiveness of industrial action, I note that the Act contemplates the application of economic and industrial pressure in pursuit of enterprise bargaining claims. Provided this occurs within the framework of the Act, it is legitimate for a bargaining representative to seek to maximise the efficacy of any protected industrial action that is taken.

[20] In any event, the Act does not vest in the Commission a general discretion as to whether a ballot order should be issued. Rather, s 443 requires the Commission to make the protected action ballot order if it is satisfied of the matters set out in that section.

Conclusion

[21] Having regard to all of the circumstances of the bargaining in the two present matters, I am satisfied that the NUW, the applicant for protected action ballot orders in the Altona and Derrimut applicants, has been, and is, genuinely trying to reach agreement with DHL.

[22] I am also satisfied that the restrictions on the making of an application under section 437(2A) and 438(1) are not applicable in the circumstances of either application, and that the other statutory criteria for the granting of protected action ballot orders in each application have been met.

[23] I was satisfied of the above matters at the time of making the orders referred to in paragraph [1] above.

[24] Protected action ballot orders were issued in PR704780 and PR704782.

DEPUTY PRESIDENT

Appearances:

M. Toner for the NUW

J. Wimalaratna for DHL Supply Chain (Australia) Pty Limited

Hearing details:

2019

Melbourne

11 February.

Printed by authority of the Commonwealth Government Printer

<PR704779>

 1   B2019/90

 2   B2019/92

 3   Esso Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Unionand others (2015) 257 IR 5 at 69; [2015] FWCFB 210 at 57

 4   Total Marine Services Pty Ltd v Maritime Union of Australia[2009] FWAFB 368; Application by NUW [2016] FWC 6262 at 25

 5   Exhibit A3