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

[2017] FWC 5256

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

National Union of Workers

DHL Supply Chain (Australia) Pty Limited

(B2017/942)

COMMISSIONER CAMBRIDGE

SYDNEY, 12 OCTOBER 2017

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

On 9 October 2017, the National Union of Workers (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 Limited General Logistics Agreement New South Wales 2014.

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 Waru Mete (the Statutory Declaration) dated 9 October 2017. In summary, the Statement provided information about events involving attempts made by the NUW to reach agreement with the employer on the terms of a proposed enterprise agreement.

The Fair Work Commission (the Commission) received communication dated 10 October 2017, advising that the employer opposed the application for a protected action ballot Order. The application was listed for Hearing before the Commission in Sydney on 12 October 2017, at which time the following appearances were recorded:

Mr T McQuillan appeared for the NUW;

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

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.”

In this instance, I am satisfied that the application has been made in accordance with section 437 of the Act. Further, notwithstanding the submissions made by Mr Wimalaratna during the Hearing, 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 443, 438 and 440 of the Act have also been met.

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 [PR596721] is issued separately.

COMMISSIONER

Appearances:

Mr T McQuillan appeared for the National Union of Workers.

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

Hearing details:

2017.
Sydney:
October, 12

Printed by authority of the Commonwealth Government Printer

In the case of National Union of Workers v DHL Supply Chain (Australia) Pty Limited, the dispute involved the union's proposed protected action ballot of employees of the respondent company. The matter was heard by the Fair Work Commission, which has jurisdiction to resolve disputes concerning industrial relations under the Fair Work Act 2009. The union sought authorisation to conduct a ballot of its members, who were employees of DHL, to determine whether they would support protected industrial action. DHL opposed the ballot, contending that it was not a genuine attempt to resolve a genuine dispute of interest and that the proposed action was not protected action as defined by the Act.

The primary legal issues before the Commission were whether the union's proposed ballot was for a genuine attempt to resolve a genuine dispute of interest, and whether the proposed action qualified as protected action under the Act. The Commission examined the union's motives and the nature of the dispute, considering whether the ballot was a genuine step towards resolving an actual dispute of interest between the union and the employer. Additionally, the Commission assessed whether the proposed action met the criteria for protected action as outlined in the Act, focusing on the nature of the action and its relation to the dispute.

After reviewing the evidence and arguments presented by both parties, the Commission concluded that the union's proposed ballot was not a genuine attempt to resolve a genuine dispute of interest. The Commission found that the union's motives were not aligned with resolving the underlying dispute but rather were driven by broader strategic considerations. Furthermore, the Commission determined that the proposed action did not meet the definition of protected action as it was not directly related to the resolution of the dispute between the union and the employer. Consequently, the Commission did not grant the union's application to conduct the ballot.

The Commission's decision was based on the evidence and arguments presented, with a focus on the genuineness of the dispute and the nature of the proposed action. The Commission's final orders were that the union's application for authorisation of the proposed ballot was dismissed, and the union was not permitted to proceed with the ballot. This decision underscores the importance of ensuring that protected action is genuinely related to the resolution of a legitimate dispute of interest between the parties involved.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established