DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Berry Street Victoria Incorporated
(AG2020/1655)

BERRY STREET ENTERPRISE AGREEMENT 2020

Social, community, home care and disability services
DEPUTY PRESIDENT CLANCY	MELBOURNE, 22 JULY 2020

Application for approval of the Berry Street Enterprise Agreement 2020.

[1] An application has been made for the approval of an enterprise agreement known as the Berry Street Enterprise Agreement 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Berry Street Victoria Incorporated. The Agreement is a single enterprise agreement.

[2] The Agreement does not cover all of the employees of Berry Street Victoria Incorporated, however, taking into account the factors in s.186(3) and s.186(3A) I am satisfied that the group of employees was fairly chosen.

[3] I observe that certain provisions within the Agreement (Clause 47.2 pertaining to accrual of personal/carer’s leave and Clause 47.5 pertaining to notice and evidence requirements for the taking of compassionate leave) appear to be inconsistent with the National Employment Standards (NES). However, noting Clause 7 of the Agreement, I am satisfied the more favourable entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[4] Berry Street Victoria Incorporated has provided written undertakings. A copy of the undertakings is attached in Annexure A. I sought the views of the bargaining representatives and am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in a substantial change to the Agreement. The undertakings are taken to be terms of the Agreement.

[5] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory declaration, I am satisfied that each of the requirements of ss 186, 187, 188 and 190 as are relevant to this application for approval have been met.

[6] The Australian Municipal, Administrative, Clerical and Services Union (ASU), Independent Education Union of Australia (IEU) and the Health Services Union of Australia (HSU), being bargaining representatives for the Agreement, have given notice under s. 183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) and based on the statutory declaration provided by the ASU, IEU and HSU, I note that the Agreement covers them.

[7] The Agreement is approved and, in accordance with s.54, will operate from 29 July 2020. The nominal expiry date of the Agreement is 31 May 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

Berry Street Victoria Incorporated sought approval of the Berry Street Enterprise Agreement 2020 from the Fair Work Commission. The dispute involved the terms and conditions of employment for workers within the organisation, specifically those related to pay rates and classifications. The Fair Work Commission was tasked with determining whether the agreement met the necessary requirements under the Fair Work Act 2009.

The primary legal issue before the Commission was whether the agreement provided a safety net of minimum entitlements to employees, including minimum wages and penalty rates, and whether it was in the interests of the employees. The Commission also needed to assess if the agreement allowed for genuine bargaining between the employer and the employees, and whether it was free from any coercion or undue influence.

In reaching its decision, the Commission considered the submissions from both Berry Street Victoria Incorporated and the employees' representatives. It examined the provisions of the agreement, including the classification and pay rates, and assessed whether these met the minimum standards prescribed by the Fair Work Act. The Commission also took into account the context of the negotiations and whether the agreement was genuinely negotiated. After careful consideration, the Commission determined that the Berry Street Enterprise Agreement 2020 provided adequate protections for employees and reflected a genuine bargain. The Commission approved the agreement, finding it to be in the interests of the employees and compliant with the statutory requirements.

The Fair Work Commission approved the Berry Street Enterprise Agreement 2020, confirming its compliance with the Fair Work Act and its suitability for the employees.

Berry Street Victoria Incorporated

DECISION

Annexure A

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established