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

[2013] FWC 5891

[2013] FWC 5891

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 T/A DHL
(B2013/201)

COMMISSIONER BULL SYDNEY, 20 AUGUST 2013

Extempore decision; application for protected action ballot; employer objection; union found to be genuinely trying to reach agreement; protected ballot order issued.

[1] This is an application by the National Union of Workers (NUW) for a protected action ballot pursuant to s.437 of the Fair Work Act 2009 (the Act). This decision is given extemporaneously following the submissions of the Respondent employer in this matter, being DHL Supply Chain (Australia) Pty Limited T/A DHL.

[2] On 13 August 2013 the Applicant, the NUW, made an application under s.437 of the Act, attached to that application was a statement of Mr Terry McQuillan, an organiser employed by the NUW responsible for the negotiation of a replacement agreement for the NUW members at the Respondent’s business.

[3] The NUW is a bargaining representative for its members at the Respondent's business, and its members are said to be covered by the proposed replacement agreement. The existing agreement has a nominal expiry date of 13 June 2013.

[4] According to the statement attached to the application prepared by Mr McQuillan, negotiations commenced face to face with the Respondent on 15 May 2013. There were a total of nine meetings according to the witness statement held with the Respondent to discuss a replacement agreement. In Mr McQuillan's statement he advises that on the 1st and 2nd of August 2013, there were two report back meetings with members which endorsed the NUW making an application with the Commission for a protected action ballot order.

[5] Following the application being filed, the Respondent advised that it opposed the application, and on 14 August 2013, a telephone conference was held between the parties, where the Respondent's objection was discussed. During that conference both parties were asked to submit an outline of submissions and any witness statements they may have to support their various positions.

[6] In particular, the Respondent was advised to consider its submissions in respect to s. 443 of the Act which requires the Commission to issue an order unless it is satisfied that the applicant has not been genuinely trying to reach an agreement with the employer.

[7] At the hearing on 19 August 2013, Ms L Brooks, the General Manager of Human Resources, appeared on behalf of the Respondent, and Mr S Mueller, a Senior Industrial Officer on behalf of the NUW.

Respondent’s submissions

[8] Ms Brooks relies upon her outline of submissions which was tendered and marked as R1. The thrust of those submissions are that the Respondent opposes the issuance of an order on a number of grounds, including that the taking of industrial action by its workforce will have a negative effect on its business to such an extent that their customers will be impacted by the industrial action, and that it will hamper their ability to retain existing customers and possibly renew contracts when those contracts are up for renewal.

[9] Secondly, the Respondent states that the wage increases that they have already offered are consistent with wage increases received by other employees of the Respondent who have negotiated enterprise agreements.

[10] Thirdly, the Respondent states that the taking of protected industrial action will not promote the objects of the Act under s.3(f), which refers to achieving productivity and fairness through an emphasis on enterprise level collective bargaining.

NUW’s submissions

[11] The NUW submitted an amended statement on behalf of Mr McQuillan which is marked as exhibit A1, together with an outline of submissions as to why an order should issue.

Conclusion

[12] In respect to determining this matter, I firstly note that this is simply an application for a ballot order. It is not at this point in time indicative of whether employees will or will not take industrial action. It is simply that prior to taking that action they must obtain a secret ballot order.

[13] To the extent that Ms Brooks says that it pre-empts the taking of industrial action that is a correct statement. However, whether the industrial action is taken or not, is to be determined by the employees who will have the opportunity, if the order issues, to vote on whether they take industrial action. If that vote is successful, whether there actually is industrial action is again another matter to be determined by the NUW and their members.

[14] In the NUW’s witness evidence which was not contested by the Respondent, Mr McQuillan refers, as I have previously mentioned, to a number of meetings held with the employer. He says that during negotiations, agreement was reached on a number of items which were part of a log of claims served on the Respondent on 8 May 2013. He states, which is not disputed by the Respondent that agreement has been reached on 22 of 26 claims, which meant that they had to compromise on a number of claims in an attempt to reach an agreement.

[15] One of the outstanding matters at the moment is the quantum of a wage increase. Mr McQuillan's statement refers to the payment of a shift allowance on personal leave being another issue that is outstanding. He also advises that at report back meetings with his members on the 1st and 2nd of August the company's offer was rejected by his members, and by a show of hands the NUW was instructed to make an application for a protected action ballot, which is what has brought about this application.

[16] As I have stated to Ms Brooks at the hearing and on the telephone conference, I am constrained by s.443 of the Act, which means that unless I am satisfied that the applicant union, being the NUW, is not genuinely trying to reach an agreement I must issue the order as sought.

[17] I accept that the taking of industrial action may have a negative effect on an employer's business, in this case DHL. I also accept that the Respondent has already made a wage offer and that taking of industrial action may not improve the relationship between the employees and the employer. However, they are not the tests that I am required to be satisfied with in respect to the granting or not granting of the application before me.

[18] Ms Brooks, on behalf of DHL, does not take the Commission to any authorities of this Commission or its predecessors that indicate that I am to be concerned whether there is a negative effect on an employers’ business.

[19] There are other sections in the Act which the NUW has pointed out in its outline of submissions that an employer can activate if they think that there is a serious economic impact occurring, but we are not at that stage in respect of this application.

[20] I accept the uncontested evidence of Mr McQuillan that there have been numerous meetings, that there have been concessions made by the union, that there has been substantial agreement on most of the claims and that there remain outstanding issues.

[21] I have no reason to conclude other than the union is genuinely trying to reach an agreement with the employer. That much at least is conceded by Ms Brooks on behalf of the Respondent. On that basis I have no alternative other than to rely and act upon the evidence of Mr McQuillan, there being no witness evidence proffered by the Respondent in objection to that witness evidence of the NUW.

[22] I therefore must make the order as sought by the NUW. The objection made by the Respondent is dismissed and an order [PR540454] based on the draft order provided by the NUW is issued in conjunction with this decision.

COMMISSIONER

Appearances:

Mr S Mueller for the National Union of Workers

Ms L Brooks for the Respondent

Hearing details:

2013.

Sydney.

19 August.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR540452>