Australian Municipal, Administrative, Clerical and Services Union v Berry Street Victoria Incorporated T/A Berry Street Victoria

[2024] FWC 3431

[2024] FWC 3431

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Municipal, Administrative, Clerical and Services Union
v

Berry Street Victoria Incorporated T/A Berry Street Victoria

(B2024/1612)

DEPUTY PRESIDENT HAMPTON ADELAIDE, 10 DECEMBER 2024

Proposed protected action ballot of employees of Berry Street Victoria Incorporated trading as Berry Street Victoria

1. This is an application by the Australian Municipal, Administrative, Clerical and Services Union (ASU or Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Berry Street Victoria Incorporated trading as Berry Street Victoria (Berry Street or Employer).

1. On 9 December 2024, the Commission was advised that the Employer did not object to the Application following discussions between the parties. The parties communicated a consent position.

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

1. On the basis of the material before me, including the declaration of Kerman Daruwalla, Organiser, setting out the steps taken by the ASU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Berry Street, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.

1. The ballot is to be conducted by the Australian Electoral Commission (AEC).

1. For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 24 January 2024.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

1. I am satisfied that there are relevant exceptional circumstances required by s.443(5), justifying an extended period of written notice for the purposes of s.414(2)(b) of the Act when taking industrial action set out in the Order made by the Commission. The extended notice period of 5 working days applies to items 5 and 10 as listed within Clause five (5) of the Order. 

1. The parties have agreed what is described as a risk mitigation provision and requested that it be included in the Order. This is set out in clause 7 as agreed.

1. An Order has been separately issued in PR782223.

1. This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. That Member will issue an Order requiring the attendance of all bargaining representatives in the proposed enterprise agreement at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

DEPUTY PRESIDENT

[1] This is, in effect, 30 working days from the making of the Order and is the minimum period required by the AEC.

Printed by authority of the Commonwealth Government Printer

<PR782224>