United Workers' Union v DHL Supply Chain (Australia) Pty Limited

[2024] FWC 2552

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

United Workers' Union
v

DHL Supply Chain (Australia) Pty Limited

(B2024/1225)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 18 SEPTEMBER 2024

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

This is an application by the United Workers’ Union (UWU or Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of DHL Supply Chain (Australia) Pty Limited (DHL or Employer).

On 17 September 2024, the Commission was advised that the Employer, in effect, did not object to the Application.

In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

On the basis of the material before me, including the declaration of Trent O’Brien, Organiser, setting out the steps taken by the UWU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with DHL, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.

The ballot is to be conducted by Democratic Outcomes Pty Ltd T/A CiVS (CiVS). CiVS has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.

For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 2 October 2024.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

There was an exact duplicate ballot question in clause 5 of the draft order and this has been removed.

An Order has been separately issued in PR779357.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. That Member will issue an Order requiring the attendance of all bargaining representatives for the proposed enterprise agreement at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

DEPUTY PRESIDENT

[1] This is, in effect, 10 working days from the making of the Order and was the period established by the Commission following consultation with the parties.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission, presided over by Deputy President Hampton, was presented with an application by the United Workers' Union (UWU) under section 437 of the Fair Work Act 2009. The UWU sought an order for a protected action ballot concerning specific employees of DHL Supply Chain (Australia) Pty Limited (DHL). The application was filed on 17 September 2024, and the Commission noted that DHL did not object to the application. Consequently, the Deputy President decided to proceed with the matter based on the submitted documents without a formal hearing.

The central legal issue before the court was whether the UWU had met the statutory requirements for a protected action ballot. Specifically, the court had to determine if all the necessary conditions under section 443(1) of the Fair Work Act had been satisfied. This included verifying the existence of a notification time for the proposed agreement and confirming that the UWU had genuinely attempted to reach an agreement with DHL. The Deputy President reviewed the declaration of Trent O'Brien, an Organiser for the UWU, which outlined the union's efforts in bargaining with DHL. The declaration, along with other evidence, convinced the Deputy President that the union had indeed fulfilled the required conditions.

Upon assessing the evidence, the Deputy President determined that all statutory requirements were met and granted the UWU's application for a protected action ballot. The ballot was to be conducted by Democratic Outcomes Pty Ltd T/A CiVS (CiVS), which had been approved as an eligible ballot agent. The Deputy President also set the closing date for voting as 2 October 2024, effectively establishing the ballot period. The order was adjusted to remove a duplicate ballot question, and separate orders were issued accordingly. Additionally, the matter was assigned to another Commission member for a compulsory conciliation conference under section 448A of the Act, with directives to ensure meaningful negotiations between the parties.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established