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

[2015] FWC 8799

[2015] FWC 8799

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
(B2015/1603)

COMMISSIONER ROE MELBOURNE, 18 DECEMBER 2015

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

[1] This is an application for a protected action ballot order by members of the National Union of Workers (NUW) employed by DHL Supply Chain (Australia) Pty Limited (the employer). The application is made pursuant to Section 437 of the Fair Work Act 2009 (the Act).

[2] When the Application originally came on for hearing it was apparent that there may be some issues concerning compliance with Section 438(1). The parties agreed to defer the matter for a period of time and to my waiving necessary procedural rules to treat the application as being made afresh if the matter was not resolved in the meantime. The matter was not resolved and as a result I determine that the application was made on the date that the NUW advised that the matter was not resolved and sought for the matter to be relisted (16 December 2015).

[3] The applicant seeks to ballot employees of the employer who are members of the NUW and who would be covered by the proposed enterprise agreement.

[4] In considering this matter I must apply Section 443 of the Act which 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).

(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.

(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.

(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.”

[5] To begin, I am satisfied that the Application has been made in accordance with Section 437 of the Act. I am satisfied that the Application was not made earlier than 30 days prior to the nominal expiry date of the current agreement, DHL Supply Chain (Australia) Pty Limited General Logistics Agreement – Victoria and Australian Capital Territory (ACT) 2011, as required by Section 438 of the Act. I am satisfied that the employer received the Application as required by Section 440 of the Act. The employer advised that they objected to the Order being issued and the matter was listed for an attendance hearing.

[6] The next matter to which attention must be given is whether or not the applicant has been, and is, genuinely trying to reach an agreement with the employer on behalf of the employees who are to be balloted. The employer raised concerns that the NUW was not generally trying to reach an agreement and therefore objected to the Order being issued. Mr Mujkic from the NUW provided a statutory declaration that satisfies me that the NUW is genuinely trying to reach an agreement.

[7] I am satisfied that the proposed order meets the requirements of Section 443 of the Act. The questions adequately specify the nature of the proposed industrial action and meet the requirements of Section 443(3)(d). The draft order therefore adequately describes the group of employees to be balloted as required by Section 443(3)(b). The AEC will be the ballot agent.

[8] Having decided that Section 443(1)(a) and (b) have been complied with, I must make a protected action ballot order, as sought by the NUW.

COMMISSIONER

Appearances:

Ms H Miflin and Mr D Mujkic appeared for the NUW.

Mr J Wimalaratna and Mr S Robson appeared for the employer.

Hearing details:

2015

Melbourne by video to Sydney

December 18

Printed by authority of the Commonwealth Government Printer

<Price code A, PR575259>