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

[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

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).

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.

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

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.

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

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.

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.

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.

An Order has been separately issued in PR782223.

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

CaseChat Overview and Summary

In the case of Australian Municipal, Administrative, Clerical and Services Union v Berry Street Victoria Incorporated T/A Berry Street Victoria, the applicant union sought a protected action ballot order for certain employees of Berry Street Victoria Incorporated. The dispute arose under the Fair Work Act 2009, and the matter was determined by the Fair Work Commission. The union applied for the ballot to be conducted to seek authorisation for protected action in relation to proposed changes outlined in a new enterprise agreement. The employer did not oppose the application, and the matter proceeded without a hearing.

The legal issues before the Commission involved verifying whether the union had met the statutory requirements to apply for a protected action ballot. This included confirming that the union had genuinely attempted to negotiate with the employer and had provided the requisite notice periods. The union needed to demonstrate that it was acting in accordance with the legislative provisions to hold a ballot, particularly under sections 437 and 443 of the Fair Work Act 2009. Additionally, the Commission had to consider whether there were exceptional circumstances warranting an extension of the notice period for certain items in the proposed agreement.

The Fair Work Commission, in determining the application, found that the union had satisfied the necessary requirements under the Act. The union provided a declaration detailing the steps taken in bargaining and affirmed its genuine attempts to reach an agreement with the employer. The Commission concluded that the union had fulfilled all the statutory prerequisites for the ballot and that the proposed ballot date was adequate. The Commission also acknowledged the presence of exceptional circumstances for an extended notice period concerning specific items in the proposed agreement. Consequently, the Commission issued an order approving the ballot and setting the closing date for voting, while also incorporating the risk mitigation provision as requested by the parties.

The final orders included the approval of the ballot, setting the closing date for voting, and specifying the extended notice period for certain items in the proposed agreement. The Commission further mandated that the Australian Electoral Commission conduct the ballot and assigned another member to oversee the compulsory conciliation conference under section 448A of the Act. This decision ensures that the parties are required to attend and engage in meaningful negotiations, with potential directions to be issued to facilitate this process.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established