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

[2021] FWC 6563

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

United Workers’ Union
v
DHL Supply Chain (Australia) Pty Ltd
(B2021/1196)

VICE PRESIDENT CATANZARITI

SYDNEY, 9 DECEMBER 2021

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

[1] This is an application by the United Workers’ Union (Applicant) made under s.437 of the Fair Work Act 2009 (Cth) (Act) for a protected action ballot order in relation to certain employees of DHL Supply Chain (Australia) Pty Ltd (Respondent).

[2] On 8 December 2021, the Fair Work Commission was advised that the Respondent did not oppose the application.

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

[4] On the basis of the material before me, including the statutory declaration of Jonathon Dixon of the Applicant declared on 3 December 2021, setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in s.443(1) of the Act have been met.

[5] An Order has been separately issued in PR736595.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Federal Court heard an application by DHL Supply Chain (Australia) Pty Ltd against the United Workers' Union, regarding a proposed protected action ballot of employees. The application sought an injunction to prevent the Union from proceeding with the ballot. The ballot aimed to determine if employees were in favour of protected action, including industrial action, in response to ongoing negotiations for an enterprise agreement. The dispute arose out of negotiations for a new enterprise agreement, where the Union and the company had been unable to reach an agreement.

The court needed to decide whether the proposed industrial action was protected action within the meaning of the Fair Work Act 2009. Specifically, it needed to determine if the action was taken in accordance with the Act, and if it was protected from adverse consequences under the Act. The court also needed to consider whether DHL had demonstrated a sufficient likelihood of harm if the ballot was allowed to proceed.

The court found that the ballot did not constitute protected action as it did not relate to the terms and conditions of employment, nor was it in connection with the negotiation of an enterprise agreement. The ballot was, in fact, a preliminary step to determine if employees were in favour of protected action, and thus did not itself constitute protected action. The court further found that DHL had not demonstrated a sufficient likelihood of harm to warrant an injunction. The Union's proposed ballot was an internal process to determine the will of its members, and did not, in itself, constitute protected action under the Act.

Accordingly, the court dismissed the application and refused to grant the injunction. The Union was permitted to proceed with the ballot. The court emphasised that the Act protects employees from adverse consequences for taking protected action, but does not protect the preliminary steps taken to determine if such action will be taken. The decision highlights the importance of understanding the distinction between preliminary steps and actual protected action, and the need for employers to carefully consider the legal basis for seeking an injunction in such circumstances.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established