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

[2013] FWC 4746

[2013] FWC 4746

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
(B2013/1020)

COMMISSIONER SPENCER BRISBANE, 17 JULY 2013

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

Background

[1] This decision is in relation to an application lodged with the Fair Work Commission (the Commission) by the National Union of Workers (the Applicant) for a protected action ballot order under s.437 of the Fair Work Act 2009 (the Act).

[2] The Applicant is seeking orders for a proposed protected action ballot of employees of DHL Supply Chain Pty Ltd (the Respondent) who are members of the Applicant and who would be subject to the proposed enterprise agreement (except an employee who is bound by an individual agreement-based transitional instrument that has not passed its nominal expiry date on the date the ballot order is made, unless such an employee has made a conditional termination of that instrument).

[3] Directions were set seeking a response from the Respondent to the application.

[4] The Respondent initially lodged an objection to the issuing of the order for a protected action ballot. The Applicant provided a response to the Respondent’s initial objection that, in summary, the Respondent’s objection did not provide any reasons in accordance with the legislative tests that would justify the refusal of the order.

[5] Further directions were issued for the Respondent to assess its objection in line with the provisions of s.443 of the Act. The Respondent submitted that the wage increases and conditions contained in the Applicant’s log of claims were excessive and hence the Applicant was not trying to genuinely reach an agreement.

[6] Given the timeframe to hear and determine these types of matters (and in the particular circumstances of endeavouring to hear the matter), a conference/mention was listed to give the parties an opportunity to discuss the objection. Following the conference, the Respondent was given an opportunity to consider the nature of its objection to the issuing of the protected action ballot order and to confirm whether it maintained the objection and whether a hearing was required.

[7] The Respondent provided this response following the conference:

... please advise the Commissioner that we rely on our submissions filled to date the company feels that the decision to issue orders for a protected action ballot will do nothing to assist the parties in dealing with the matters we are faced with.

[8] The Respondent did not request a hearing in the matter, however, their submissions were considered.

Legislative provisions

[9] Section 437 of the Act states, inter alia:

437 Application for a protected action ballot order

Who may apply for a protected action ballot order

(1) A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or 2 or more such bargaining representatives (acting jointly), may apply to the FWC for an order (a protected action ballot order) requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement.

...

Matters to be specified in application

(3) The application must specify:

(a) the group or groups of employees who are to be balloted; and

(b) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

...

(5) A group of employees specified under paragraph (3)(a) is taken to include only employees who:

(a) will be covered by the proposed enterprise agreement; and

(b) either:

(i) are represented by a bargaining representative who is an applicant for the protected action ballot order; or

(ii) are bargaining representatives for themselves but are members of an employee organisation that is an applicant for the protected action ballot order...

[10] Section 443(1) of the Act outlines when the Commission must make a protected ballot order:

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)...

Consideration

[11] I am satisfied the application has been made in accordance with s.437 of the Act. In turn the next consideration is whether I am satisfied the Applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

[12] Section 443 is a directive provision, that is, if the Commission is satisfied the legislative tests in s.443 are met then it is mandatory the Commission make the protected action ballot order.

[13] The Respondent, in its submissions, argued that the wage increases claimed by the Applicant in negotiation meetings (that occurred during May and June) changed significantly from the Applicant’s log of claims, which were included in the Respondent’s materials. The Respondent stated in its submissions that the Applicant’s actual wage claim for the enterprise agreement was to “include increases to wages of more than 23%”. On this basis, the Respondent claimed the Applicant was not genuinely trying to reach an agreement. The Applicant submitted there were reasons for seeking the increases to “catch up” the wage rates of employees and these had been discussed in negotiations between the parties.

[14] The Applicant submitted it was genuinely trying to reach an agreement as it had provided a log of claims to the Respondent in March in relation to a proposed enterprise agreement to be made between the Respondent and the Respondent’s employees. The Applicant and Respondent had met on four occasions to discuss the proposed enterprise agreement and the employees had voted to reject a proposed enterprise agreement in June.

[15] Both parties provided material that demonstrates they have been and are genuinely trying to reach an agreement. The matters to which the Respondent refers are matters which may be more appropriately addressed during the conduct of negotiations for an enterprise agreement and do not indicate the Applicant is not trying to genuinely reach an agreement with the Respondent.

Conclusion

[16] I am satisfied on the basis of the evidence provided by both parties that the Applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

[17] The legislative scheme in relation to bargaining (as against the test in s.443 of the Act) includes the right to take protected industrial action.

[18] Issuing an order for a protected action ballot order is a facilitative step to assess whether the employees are prepared to take such protected action. Section 436 outlines the objects of Part 3-3, Division 8 of the Act, relating to protected action ballots, as follows:

The object of this Division is to establish a fair, simple and democratic process to allow a bargaining representative to determine whether employees wish to engage in particular protected industrial action for a proposed enterprise agreement.

Note: Under Division 2, industrial action by employees for a proposed enterprise agreement (other than employee response action) is not protected industrial action unless it has been authorised in advance by a protected action ballot.

[19] The making of such an order does not prevent the continuation of bargaining.

[20] Further, the Explanatory Memorandum to the Fair Work Bill 2008 provides detail as to the objects of the protected action ballot provisions as follows:

1755. Clause 436 states that the object of the Division is to provide bargaining representatives with access to a fair, simple and democratic secret ballot process in order to determine whether employees wish to take certain types of protected industrial action. The Division contains facilitative provisions designed to provide a means for assessing the level of support for protected industrial action. The process the Division establishes is not intended to delay or frustrate the taking of protected industrial action by employees.

[21] The matters referred to by the Respondent do not demonstrate that the Applicant is not genuinely trying to reach an agreement. There is no obligation on a party to resile from negotiating a particular wage claim or not to engage in hard bargaining.

[22] As I am satisfied of the matters in s.437 and s.433(1)(a) and (b) of the Act, an order for the protected action ballot must issue. That order is contained in PR538994, which will issue concurrently with this decision.

COMMISSIONER

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<Price code A, PR538995>