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

[2016] FWC 1053

[2016] FWC 1053

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 Ltd
(B2016/274)

COMMISSIONER GREGORY MELBOURNE, 17 FEBRUARY 2016

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

[1] The National Union of Workers (the NUW) has made an application for a protected action ballot order under s.437 of the Fair Work Act 2009 (Cth) (the Act) in respect of its members employed by DHL Supply Chain (Australia) Pty Ltd (DHL) who work at its Derrimut site in Victoria. The application is supported by an affidavit made by an NUW Organiser, Ms Chloe Holliday. The affidavit indicates that the nominal expiry date of the existing Agreement that now covers the parties is 31 December 2015.

[2] The application is opposed by DHL. It submits it is not appropriate for an order to be made at this time because the NUW is not genuinely trying to reach agreement.

[3] Section 443 of the Act provides that the Commission must make a protected action ballot order if an application has been made under s.437, and the associated requirements of the Act have been satisfied, including that the Applicant is genuinely trying to reach Agreement.

[4] After considering the application and the terms of the affidavit provided by Ms Holliday, together with the submissions of the parties, I am satisfied that the NUW is a bargaining representative for the employees sought to be covered by the proposed Agreement. I am also satisfied that the application specifies the group of employees to be balloted and the questions to be put, including the nature of the proposed protected action. I am also satisfied that the requirements of s.440 of the Act have been satisfied, and within 24 hours of making this application the NUW gave a copy to DHL and to the ballot agent.

[5] I am also satisfied that the NUW is “genuinely trying to reach agreement” with DHL in accordance with the requirements of s.443. The affidavit provided by Ms Holliday indicates the NUW’s log of claims was sent to DHL on 10 December 2015 in regard to a new enterprise agreement for DHL employees employed at its site at Derrimut. The affidavit also indicates there have been five meetings held to date between representatives of the NUW and DHL since that time. It also indicates there have been some changes to the claims as a consequence of the negotiations that have taken place to date, but at this stage no agreement has been concluded. I am satisfied that through these processes the NUW has made known to DHL the nature of its claims and the basis upon which an Agreement is sought to be concluded. I am also satisfied, based on the submissions of both parties, that DHL has in response foreshadowed, at least in general terms, its attitude to the proposed Agreement.

[6] I am satisfied, in conclusion, that the requirements of the Act in respect of an application made under s.437 have been met. I accordingly propose to make an order in the terms sought by the NUW. That order will be issued in conjunction with this decision.

COMMISSIONER

Appearances:

Ms M Segan appeared on behalf of the National Union of Workers.

Mr Wimalaratna appeared on behalf of DHL Supply Chain (Australia) Pty Ltd.

Hearing details:

2015.

Melbourne (video link to Sydney):

17 February.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR577143>