v DHL Supply Chain (Australia) Pty Limited

[2024] FWC 2661

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.459 - Application to extend the 30 day period in which industrial action is authorised by protected action ballot

United Workers' Union

DHL Supply Chain (Australia) Pty Limited

(B2024/1255)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 25 SEPTEMBER 2024

Application to extend the 30 day period in relation to B2024/1053.

This matter concerns the declaration of the result of a protected action ballot PR778455 held in matter B2024/1053 and declared on 6 September 2024.

The United Workers' Union has made an application pursuant to s.459(3) of the Fair Work Act 2009 (Act) to extend the 30 day period in which industrial action is authorised by the relevant protected action ballot.

Section 459(3) of the Act provides as follows:

“(3) The FWC may extend the 30-day period referred to in subparagraph (1)(d)(i) by up to 30 days if:

(a) an applicant for the protected action ballot order applies to the FWC for the period to be extended; and

(b) the period has not previously been extended.”

The application contends that each of the relevant requirements have been met and that the period should be extended by a further 30 days.

DHL Supply Chain (Australia) Pty Limited has advised the Commission that it did not consent to the application and did not seek to make any further submissions. However, it stated that the determination of the application was a matter for the Commission to be satisfied as to whether the requirements of the Act have been met. It consented to the application being determined on the papers.

I am satisfied that the relevant requirements of the Act have been met and that the application should be granted.

Accordingly, pursuant to section 459(3) of the Act, I order that the 30 day period for the commencement of protected industrial action for eligible employees who were subject to the ballot and are employed by the Employer be extended by a further 30 days.

This order will operate on and from 25 September 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the United Workers' Union applied for an extension of the 30-day period during which industrial action could be undertaken following a protected action ballot. The application was made under section 459(3) of the Fair Work Act 2009, seeking to extend the authorisation period for industrial action against DHL Supply Chain (Australia) Pty Limited. The application pertained to ballot PR778455, which was declared on 6 September 2024. The Union argued that the statutory criteria for an extension were satisfied and that the period should be extended by a further 30 days. DHL Supply Chain (Australia) Pty Limited did not consent to the application and did not seek to make further submissions but indicated that the decision on the application was for the Commission to determine based on the statutory requirements.

The key legal issue before the Deputy President was whether the application met the statutory criteria for extending the 30-day period for protected industrial action. The application had to satisfy two conditions under section 459(3) of the Act: the applicant for the protected action ballot order must apply to the Commission for an extension, and the period must not have been previously extended. The Union submitted that both conditions were met, and thus, the application should be granted. DHL Supply Chain (Australia) Pty Limited did not contest the application on the grounds of the statutory criteria but deferred to the Commission’s decision on the matter.

The Deputy President found that the application met the statutory requirements for an extension under section 459(3) of the Act. The Commission was satisfied that the Union had applied for the extension and that the 30-day period had not previously been extended. Given these findings, the application was granted. Consequently, the 30-day period for the commencement of protected industrial action was extended by a further 30 days, effective from 25 September 2024. This decision ensures that eligible employees who participated in the ballot and are employed by DHL Supply Chain (Australia) Pty Limited have an additional period within which to undertake industrial action as authorised by the ballot.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established