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

[2024] FWC 2213

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

(B2024/1053)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 20 AUGUST 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 19 August 2024, the Commission was advised that DHL “did not consent to the application or have any further submission to make” and further that “it is a matter for the Tribunal to be satisfied that the requirements for an order have been met.” DHL also advised that it was content for the matter to be determined on the papers.

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 Isabella Himmelreich, 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 (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 6 September 2024[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR778455.

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 in 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, 13 working days from the making of the Order and was the specific date sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The United Workers' Union (UWU) has applied to the Fair Work Commission (FWC) for a protected action ballot order in relation to certain employees of DHL Supply Chain (Australia) Pty Limited. The application is made under section 437 of the Fair Work Act 2009. DHL did not contest the application, leaving the Commission to determine the matter on the basis of the documents submitted. The proposed ballot is to be conducted by Democratic Outcomes Pty Ltd, an approved ballot agent under the Act.

The key legal issues before the Commission were whether the UWU had genuinely tried to reach an agreement with DHL and whether all requirements under section 443(1) of the Act had been met. The Commission examined the declaration by Isabella Himmelreich, Organiser of the UWU, which outlined the bargaining process and the union's efforts to reach an agreement with DHL. The Commission was satisfied that the union had genuinely attempted to negotiate and that the notification period for the proposed agreement had been met.

The Deputy President Hampton, after reviewing the material, determined that the requirements for a protected action ballot order were fulfilled. An Order was issued, setting 6 September 2024 as the closing date for voting, effectively 13 working days from the date of the Order. Additionally, a compulsory conciliation conference will be conducted by another member of the Commission, requiring the attendance of all bargaining representatives to negotiate the proposed enterprise agreement. Directions will be issued to ensure the parties are prepared for meaningful negotiations.

The final orders include the approval of the ballot to be conducted by Democratic Outcomes Pty Ltd and the scheduling of the conciliation conference. The matter will be reassigned to another member of the Commission to oversee the conciliation process.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established