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

The National Union of Workers sought a declaration that a proposed protected action ballot of employees of DHL Supply Chain (Australia) Pty Ltd was lawful and enforceable. The Full Bench of the Fair Work Commission heard and dismissed the union's application. The union argued that the ballot was lawful under section 358 of the Fair Work Act 2009 (Cth) as the employer had failed to provide information to the union. The Commission found that the union had not demonstrated that the employer's response to the union's request for information was inadequate, and therefore, the employer was not required to provide further information. The Commission also found that the employer's failure to provide information was not a failure to bargain in good faith. The Commission held that the union's application for a declaration that the proposed protected action ballot was lawful and enforceable was dismissed. The Commission ordered that the union pay the employer's costs of and incidental to the proceeding. The union appealed the decision to the Federal Court. The Court found that the Commission had erred in law by failing to consider whether the employer's failure to provide information was a failure to bargain in good faith. The Court remitted the matter to the Commission for reconsideration. The Court held that the union's appeal was allowed, and the Commission's decision was set aside. The matter was remitted to the Commission for reconsideration in light of the Court's reasons.

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

DECISION

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