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

[2024] FWC 2146

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

United Workers' Union
v

DHL Supply Chain (Australia) Pty Limited

(B2024/1018)

COMMISSIONER PLATT

ADELAIDE, 13 AUGUST 2024

Proposed protected action ballot of employees of DHL Supply Chain (Australia) Pty Limited – applications granted – orders issued

The following reasons for decision relate to my decision to issue protected action ballot orders[1] on Tuesday, 13 August 2024.

On Friday, 9 August 2024, nine applications (the Applications) were made by the United Workers’ Union (UWU) in relation to employees of DHL Supply Chain (Australia) Pty Limited (DHL) to determine whether eligible employees wish to engage in specified protected industrial action for proposed enterprise agreements. Each of the applications were largely identical save for the group of employees that were to be balloted. I have determined pursuant to s.442 of the Fair Work Act 2009 (the Act) that it is appropriate to determine the multiple applications together.

I note the requirements of s.441 of the Act which requires (as far as practicable) that this application be determined within 2 business days.

There is no submission that the requirements of s.440 of the Act have not been met by the Applicant and copies of the relevant emails to the ballot agent were provided.

On Monday, 12 August 2024, Ms Carolyn Gorrey on behalf of DHL advised that the applications were opposed outright. The Respondent contended the Applications contained matters that were false and misguided and the information provided was more about rhetoric than about employee/employer bargaining. DHL submitted that the approval of these applications will only serve to harm men and women who work for DHL with lost wages and high risk of loss of jobs.

DHL also submitted that any disruption to the supply chain will have an immediate impact on critical life-saving health case as well as consumer, retail and education services and poses a serious risk to ongoing employment for workers. These are matters that can be dealt with by application under s.424 or s.426 of the Act as appropriate.

The applications were the subject of conciliation before me at 11:00am (SA) Tuesday, 13 August 2024. The matter was not resolved. A hearing was listed for 3:00pm (SA) on the same day with both parties instructed to file their supporting material and written submissions by 2.30pm (SA).

The Hearing was conducted via telephone at 3:00pm (SA) Tuesday, 13 August 2024 and was recorded. Mr Sean Howe represented the UWU. Mr Declan Bryne represented the Respondent.

Ms Isabella Himmelreich and Ms Anna Thwaites gave sworn evidence for the Applicant. Each of the nine Form F34B Declarations were received and marked A1-A9 respectively (in ascending matter number order). In cross-examination, the Respondent put to each of the two witnesses the proposition that the Respondent had agreed to conduct two further meetings as outlined in an email exchange of 9 August 2024 (Exhibit R1), this was agreed. The remainder of the two witnesses’ evidence was unchallenged. The Respondent relied and reinforced on its oral submissions (Exhibit R2), the most relevant point is extracted below.

The Respondent’s written submissions contained the following paragraph:

3. DHL provides the following argument to support the FWC to reject the making of the Orders sought by the UWU:
a.In each of the nine (9) Protected Action Ballot Order Applications (Form F34B) for the aforementioned Enterprise Agreements, the UWU representatives declared at point 2.1 “Background”, subpoint 5 “Since bargaining commenced, the UWU has been, and is, genuinely trying to reach a proposed Enterprise Agreement with the Employer.”

b.It is very clear that the UWU has no intention to genuinely bargain. The nine (9) Protected Action Ballot Order Applications (Form F34B) were filed after agreeing to hold meetings with DHL on 20 August 2024 and 26 August 2024.

c.Clearly, there is no genuine intent or good faith on the part of the UWU with regard to participating in genuine Enterprise Agreement bargaining, which is grounds for the FWC to reject the application.

The Applicant contended that the requirements of s.443 had been met.

Consideration

The parties appear to be going through an orthodox bargaining process. Each of the witnesses agreed that the claims had been made and discussed by the UWU and DHL and there were a number of outstanding issues which included wage increases, rates of pay for forklift drivers, changes to classification structure, dangerous good allowance, cold work allowance and the scope of the agreements. In addition, the UWU was prepared to continue to meet with the Respondent.

Whilst parties may have views in relation to the timing of the protected action ballot order applications, the evidence reveals that the parties have met, exchanged positions and made progress towards reaching agreement indicates to me that each of the Applicants have been, and are, genuinely trying to reach an agreement. The agreement to meet in the future is consistent with the UWU continuing to genuinely try to reach an agreement. I am satisfied that the requirements of s.443(1) have been met.

There was no application for an extended period of notice pursuant to s.443(5) of the Act.

The ballot in each matter 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 ballots.

For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close in each matter is 3 September 2024. This also establishes the ballot periods for the purpose of s.448A(2) of the Act.

Based on the information above, s.443 of the Act requires that I make a protected action ballot order, these orders have been issued separately in each matter.[2]

During the Hearing and in the written material submitted by the Respondent, there were repeated implications that the taking of industrial action may harm employees and their job security. I felt it was necessary to advise the Respondent that the taking of adverse action against employees who avail themselves of the right to participate in protected industrial action is a breach of the General Protections provisions of the Act, with serious implications for the Respondent, who I recommend should obtain seeking professional industrial relations advice.

These matters 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 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.

COMMISSIONER

[1] PR778258, PR778261, PR778264, PR778266, PR778268, PR778270, PR778272, PR778274, PR778276.

[2] Ibid.

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, the United Workers' Union applied for a protected action ballot order in relation to employees of DHL Supply Chain (Australia) Pty Limited. The applications sought to determine whether eligible employees wished to engage in specified protected industrial action for proposed enterprise agreements. DHL opposed the applications, arguing that they were misleading and that approving them would harm employees and risk their jobs, particularly given the potential impact on supply chains for critical services. The Union argued that they had been genuinely trying to reach an agreement and that the applications were in line with the bargaining process.

The legal issues before the Commission were whether the Union had met the requirements under the Fair Work Act 2009 to issue a protected action ballot order and whether the applications contained false or misleading information. The Commission needed to determine if the Union had genuinely been attempting to reach an agreement and if the timing of the applications was appropriate. The Commission also considered the potential impact of the proposed industrial action on employees and the broader supply chain.

The Commission found that the Union had met the requirements for issuing a protected action ballot order. The evidence showed that the parties had met, exchanged positions, and made progress towards reaching an agreement. The agreement to meet in the future was consistent with the Union's continued efforts to reach an agreement. The Commission noted that while parties might have views on the timing of the applications, the evidence indicated genuine bargaining efforts. The Commission also warned DHL that taking adverse action against employees participating in the ballot would breach the General Protections provisions of the Act. The Commission issued the orders separately in each matter and scheduled a compulsory conciliation conference to ensure meaningful negotiations.

The Commission granted the applications and issued the protected action ballot orders. The orders were issued separately for each group of employees, with voting to close on 3 September 2024. The Commission recommended that DHL seek professional industrial relations advice to avoid breaching the General Protections provisions. The matter will proceed to a compulsory conciliation conference to facilitate further 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