v DHL Supply Chain (Australia) Pty Limited

[2024] FWC 2643

The attached document replaces the document previously issued with the above code on 25 September 2024.

Paragraph 5 has been amended to better reflect the nature of the Respondent Employer’s position in relation to the application.

Associate to Deputy President Hampton.

Dated 25 September 2024.

[2024] FWC 2643

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

(B2024/1248)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 25 SEPTEMBER 2024

Application to extend the 30 day period in relation to B2024/1021.

This matter concerns the declaration of the result of a protected action ballot PR778274 held in matter B2024/1021 and declared on 3 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

The United Workers' Union has applied to the Fair Work Commission for an extension of the 30-day period in which industrial action is authorised by a protected action ballot, originally declared in matter B2024/1021 on 3 September 2024. DHL Supply Chain (Australia) Pty Limited, the employer, has not opposed the application but has stated that the determination of the application is for the Commission to decide based on whether the statutory requirements have been met. The application for an extension was made under section 459(3) of the Fair Work Act 2009, which allows the Commission to extend the 30-day period if certain conditions are satisfied, including that the period has not previously been extended.

The primary legal issue before the Deputy President was whether the United Workers' Union had met the statutory requirements for an extension of the 30-day period, as set out in section 459(3) of the Act. This involved assessing whether the Union had applied for the extension and whether the period in question had not already been extended. The employer did not contest the application and did not seek to make any further submissions, indicating that the decision was to be made on the basis of the statutory criteria alone.

Upon reviewing the application and the employer's position, Deputy President Hampton found that the requirements for an extension were indeed met. The Union had applied for the extension, and there was no indication that the 30-day period had been extended previously. Consequently, the Deputy President granted the application, ordering that the 30-day period for the commencement of protected industrial action for eligible employees be extended by a further 30 days, effective from 25 September 2024.

This order ensures that the employees who were subject to the ballot and who are employed by DHL Supply Chain (Australia) Pty Limited have an additional 30 days to commence any authorised industrial action, in accordance with the provisions of the Fair Work Act 2009.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established