B2017/992, Transcript of Proceedings [2017] FWCTrans 465 (2 November 2017)

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PN1

THE COMMISSIONER: Yes, good afternoon. We might start with the appearances in the matter please.

PN2

MR T McQUILLAN: For the applicant, McQuillan, initial T. With me is Ms Morris, initial S.

PN3

THE COMMISSIONER: Mr McQuillan, thank you.

PN4

MR J WIMALARATNA: Thank you, Commissioner. If it pleases the tribunal Wimalaratna, initial J, and with me I've got Chillaro, initial S.

PN5

THE COMMISSIONER: Thank you. Mr McQuillan, I think it's your application.

PN6

MR McQUILLAN: Thank you, Commissioner. The applicant has filed with the Commission an application under section 437 of the Act, a statutory declaration in support of the application for a protected action ballot order has been by the organiser Ms Morris and a draft order has been provided. If it please the Commission, it is the applicant's submission that the matter in front of you today fulfils the requirements under the Act.

PN7

The Commission can be also satisfied that we have - the applicant has been genuinely trying to reach agreement with the respondent. Despite this the parties have reached an impasse. Also the organiser with me today is willing to give evidence based on her declaration. We would also be willing to make further meetings with the respondent, so in the circumstances we submit that the draft order provided with our application can be granted. Thank you, Commissioner.

PN8

THE COMMISSIONER: Mr Wimalaratna, is this application opposed?

PN9

MR WIMALARATNA: It is, Commissioner, yes it is.

PN10

THE COMMISSIONER: On what basis is it opposed?

PN11

MR WIMALARATNA: It's opposed on the basis that we submit that the applicant is not genuinely trying to reach agreement. We've also got some concerns about the application and wording of the draft order. Sir, if I can first point to the application F34 and the wording of the draft order. The point refers to the group of employees to be balloted is described as employees of DHL Supply Chain who are members of NUW and whom the NUW is a bargaining representative and who work at these six sites. The six sites are listed as; 2 Millner Avenue, Horsley Park; 4 Millner Avenue, Horsley Park; 6 Millner Avenue, Horsley Park; 22 Grady Crescent, Erskine Park, 2 Wonderland Drive, Eastern Creek and 72-74 Jedda Road, Prestons.

PN12

However, what we'd like to point out, Commissioner, is that only part of the workforce in two of these sites; that is 2 Millner Avenue, Horsley Park and 22 Grady Crescent is covered by the proposed agreement. This is reflected in the notice of representational rights issued as well. The wording in the form F34 and also in the draft order does not adequately plead that in these sites a ballot is only limited to employees covered by the proposed agreement, rather than all members of the National Union of Workers.

PN13

THE COMMISSIONER: Have you raised this matter with the NUW before now?

PN14

MR WIMALARATNA: No, Commissioner, we haven't.

PN15

THE COMMISSIONER: Mr McQuillan?

PN16

MR McQUILLAN: No, Commissioner, he hasn't but the sites that are covered, they have multiple EBAs on that site so you put in the ballot application that they'll be the representatives covered by that agreement on that site. We don't seek to have all members of the union on that site not covered by this agreement to be balloted. I think it's self-explanatory there that that it'd only be for the members covered by the agreement under which we're seeking a ballot application. If the Commission likes I can give assurances that we're only going to be seeking the members of the union who are currently covered by the agreement that is up for a ballot application will be covered and asked to vote under this application. It was never raised by the company, Commissioner, with us.

PN17

THE COMMISSIONER: Well that probably addresses your concerns, doesn't it, Mr Wimalaratna?

PN18

MR WIMALARATNA: Commissioner, yes. The draft order would need to be amended to reflect that it's only people who are to be covered by the proposed agreement.

PN19

THE COMMISSIONER: Do you have a particular form of words that you think might accommodate that?

PN20

MR WIMALARATNA: No, there's no particular words but as long as it's limited to the guys who are going to be covered by the proposed agreement, employees covered by the proposed agreement.

PN21

THE COMMISSIONER: What might be helpful here in all of this is for there to have been some communication between the parties and you could have suggested some wording that might have been acceptable and we could have changed the document fairly simply.

PN22

MR WIMALARATNA: If the Commission pleases, we can provide some draft wording.

PN23

THE COMMISSIONER: Perhaps you could discuss that with Mr McQuillan after I adjourn and you can see if you can tidy up that wording if it needs to be tidied up at all. It may be just a couple of words added somewhere in there, I don't know. Mr McQuillan, are you open to that proposition?

PN24

MR McQUILLAN: Yes, Commissioner, but I'd also like to state that if we proceed and the ballot is granted, the Commission can put the relevant words on the ballot application, on the assurance that I'll give in the presence of the Commissioner to say that the draft order for the ballot will only cover the members of the sites who are covered by that agreement.

PN25

THE COMMISSIONER: By what agreement? As I understand it you've got members apparently on these sites in question who are covered by a different agreement or something. There's - - -

PN26

MR McQUILLAN: There's two agreements on that site, my understanding, Commissioner. We'd be looking for the - - -

PN27

THE COMMISSIONER: You could add another paragraph and just put:

PN28

For clarification on these sites the employees to be balloted will be confined to those employees who are currently covered by -

PN29

and name the particular agreement. That would be easy enough done, wouldn't it?

PN30

MR McQUILLAN: I'd give that recommendation and I would accept that Commissioner.

PN31

THE COMMISSIONER: So why don't you sit down and put the detail to that because I don't know the names of the particular sites and the names of the particular agreements. But if you jointly do some work on that I'm sure we can accommodate that and that will fix the problem.

PN32

MR McQUILLAN: But in our - sorry, Commissioner. In our form - the statutory declaration it does name the agreement that the persons will be covered under that agreement. Only that agreement.

PN33

THE COMMISSIONER: So the General Logistics Agreement - New South Wales 2014?

PN34

MR McQUILLAN: Yes, Commissioner.

PN35

THE COMMISSIONER: So for the purposes of adding another paragraph to clause 3 of the proposed order, we would simply say for clarification - - -

PN36

MR McQUILLAN: For clarification for those members - - -

PN37

THE COMMISSIONER: These - - -

PN38

MR McQUILLAN: These members covered under the - - -

PN39

THE COMMISSIONER: Will only involve persons who are currently covered by the DHL Supply Chain Australia Pty Ltd General Logistics Agreement - New South Wales 2014.

PN40

MR McQUILLAN: Yes, Commissioner.

PN41

THE COMMISSIONER: That would fix that problem.

PN42

MR McQUILLAN: We would put that, yes. That would fix it.

PN43

THE COMMISSIONER: Right. We could easily attend to that, I think. Does that sound suitable, Mr Wimalaratna?

PN44

MR WIMALARATNA: Yes, that sounds suitable to us, thank you, Commissioner.

PN45

MR McQUILLAN: Thank you, Commissioner.

PN46

THE COMMISSIONER: Right. Now let's get back to any other areas of contest. Is the statutory declaration made by Ms Morris, is that contested?

PN47

MR WIMALARATNA: No, it's not, Commissioner.

PN48

THE COMMISSIONER: It's not contested.

PN49

MR WIMALARATNA: No.

PN50

THE COMMISSIONER: Perhaps then in the circumstances it might be appropriate if I mark that document. It's not contested, and for the purposes of these proceedings that document will become exhibit 1. Exhibit 1 is described as the statutory declaration of Sharon Morris which is dated 18 October 2017. That's exhibit 1.

EXHIBIT #1 STATUTORY DECLARATION OF SHARON MORRIS DATED 18/10/2017

PN51

Yes, Mr Wimalaratna.

PN52

MR WIMALARATNA: Commissioner, there's one more point of contention in the application by the applicant, and we don't believe this goes to any other matters at hand today but I would still like on record correct that. The notification time of the enterprise agreement is listed on form F34(b) as one week prior to 17 August, we submit that the notification time is actually 17 August 2017, but I don't believe it has any relevance to the matters at hand.

PN53

THE COMMISSIONER: Right.

PN54

MR WIMALARATNA: Commissioner, if I may go onto the matter of the submission. Section 440(3) of the Act requires the Fair Work Commission to make a protected action ballot order for a proposed agreement where the Fair Work Commission is satisfied the applicant has been genuinely trying to reach agreement with the employer. Our submissions will go to create some doubts that the NUW - if the NUW has been genuinely trying to reach agreement with the employer in this instance.

PN55

The first submission in this regard is the small number of meetings. In reference to the proposed agreement, to date there has only been four meetings and only four substantive meetings, with the first meeting involving the union explaining its log of claims. So therefore we submit the protected action ballot order is premature and the NUW's willingness to resort to premature industrial action despite the relative and short number of meetings conducted supports - casts doubts whether the National Union of Workers is genuinely trying to reach agreement.

PN56

Secondly, Commissioner, it's the lack of concessions made by the National Union of Workers in respect to this agreement. During the course of these negotiations, the NUW has not removed any of its claims set out in the log of claims provided by the DHL Supply Chain, provided to DHL - this is despite DHL varying its position and agreeing to claims by the NUW. The lack of concessions further casts doubt whether the National Union of Workers is genuinely trying to reach agreement.

PN57

Finally Commissioner, section 578 of the Act requires the tribunal in exercising its powers - the tribunal to take account the objects of the Act, which makes reference - in turn makes reference to economic growth and Australia's economic future prosperity. The customers covered by the proposed agreement mainly in the retail and related sectors, given we are entering the busiest period of the year for retail businesses, any interruption in DHL services would likely cause significant harm and disruption to DHL customers, members of the public and ultimately the Australian economy. Therefore we submit, Commissioner, given the flow on impacts that the order permitting a ballot would not be consistent with the objects of the Act.

PN58

For these reasons, Commissioner, we submit that the order not be granted and creates some doubt if the National Union of Workers is genuinely trying to reach agreement. At all times DHL has been and remains willing to meet and discuss a way forward in respect of the proposed agreement. As an alternative based on the submissions and implications of industrial action, the respondent requests that the matter be adjourned and the parties be provided with further opportunities to meet prior to issuing a protected action ballot order. Thank you, Commissioner.

PN59

THE COMMISSIONER: Mr McQuillan, do you want to say anything in response to that?

PN60

MR McQUILLAN: Yes, Commissioner. A few points raised by the respondent. I'd just like to address under section 228 of the Act, bargaining. Section 2 says:

PN61

The good faith bargaining requirements do not require; (a) a bargaining representative to make concessions during bargaining for the agreement; (b) a bargaining representative to reach agreement on the terms that are to be included in the agreement.

PN62

We also bargain in good faith and always have tried to have meetings with the respondent, but again a lot of our claims were rejected and the respondent went further to put the agreement out again for a vote, and that vote will take place next week. Just in general, it is our understanding that the protected action ballot can be granted in accordance with section 443. We have fulfilled all the requirements under the Act - sorry, under each relevant section, and considerations of everything that we have done excuse me - everything that we have taken into account with the company has been discussed with our membership, and they have directed us to seek this protected action ballot application. Thank you.

PN63

THE COMMISSIONER: Thank you. I propose to make an extempore determination of the matter. The application is granted. The protected action ballot order will be made. I will amend the protected action ballot order to provide for the clarification that was suggested in respect of the group of employees to be balloted, being confined to those persons who are currently covered by the DHL Supply Chain Australia Pty Ltd General Logistics Agreement - New South Wales 2014.

PN64

One of these applications is governed by the requirements of section 443 of the Act. In this instance the Commission has had regard for the statutory declaration of Sharon Morris, which has been marked as exhibit 1, notwithstanding the submissions that have been made I'm satisfied that the applicant has been and is genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

PN65

In addition, I'm satisfied that the requirements of sections 443, 438 and 440 of the Act have also been met. Therefore, pursuant to subsection 443(1) of the Act, the Commission must make a protected action ballot order. There is no discretion. The order shall be made in the terms as broadly sought by the NUW and amended as previously discussed. On that basis the proceedings are now adjourned.

ADJOURNED INDEFINITELY [12.15 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #1 STATUTORY DECLARATION OF SHARON MORRIS DATED 18/10/2017................................................................................................................................... PN50

Fair Work Commission Transcripts

B2017/992, Transcript of Proceedings [2017] FWCTrans 465 (2 November 2017)