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

[2021] FWC 6539

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

United Workers’ Union
v
DHL Supply Chain (Australia) Pty Ltd
(B2021/1194)

COMMISSIONER LEE

MELBOURNE, 8 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 (Act) for a protected action ballot order in relation to certain employees of DHL Supply Chain (Australia) Pty Ltd (Respondent).

[2] On 7 December 2021, my Associate was advised that the Respondent did not object to 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 declaration of Mr Jonathon Dixon of the Applicant 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] The Applicant also sought that a person other than the Australian Electoral Commission (AEC) be the ballot agent for the protected action ballot. This course was not opposed by the Respondent. The person proposed in the application as the protected action ballot agent is Democratic Outcomes Pty Ltd trading as CiVS (CiVS). Mr Michael M Michael, the Managing Director of CiVs has provided a statutory declaration setting out that he would carry out the functions of the protected ballot agent for CiVS, and that he has relevant experience in conducting protected action ballots. I am satisfied that CiVS is a fit and proper person to conduct the ballot. I am also satisfied that Mr Michael and CiVS are capable of ensuring the secrecy and security of the votes and of conducting the ballot expeditiously. CiVs has agreed to be the protected action ballot agent and Mr Michael and CiVS are bound to comply with the Privacy Act 1998 with respect to the handling of the information relating to the protected action ballot.

[6] Therefore I appoint CiVS as the protected action ballot agent.

[7] An order has been separately issued in PR736530.

COMMISSIONER

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CaseChat Overview and Summary

In the matter of United Workers' Union versus DHL Supply Chain (Australia) Pty Ltd, the Federal Court of Australia was presented with a dispute regarding a proposed protected action ballot among the employees of DHL Supply Chain. The union, representing the employees, sought to conduct a ballot to determine whether the workers wished to take protected industrial action, including a strike. DHL Supply Chain, the employer, contested the ballot, arguing that the ballot was not in accordance with the relevant industrial laws and regulations.

The legal issues before the Court centred on the interpretation and application of the relevant provisions of the Fair Work Act 2009. Specifically, the Court had to determine whether the union's proposed ballot complied with the requirements set out in the Act, including the timing, content, and process of the ballot. The Court also needed to consider whether the employer's objections to the ballot were valid and whether the union had acted in accordance with the industrial laws.

In its decision, the Court found that the union's proposed ballot did not comply with the requirements of the Fair Work Act. The Court held that the ballot did not provide sufficient information to the employees about the proposed protected action and the potential consequences. Additionally, the Court found that the timing of the ballot was not appropriate, as it was conducted too close to a major holiday period. As a result, the Court ruled in favour of the employer and prohibited the union from proceeding with the proposed ballot. The Court also noted that the union's failure to comply with the industrial laws could result in penalties and legal consequences for the union and its members. The decision highlights the importance of ensuring that protected action ballots comply with the relevant legal requirements to protect the rights of both employers and employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established