s.437 - Protected action

Retail And Fast Food Workers Union Incorporated

Cordeaux Creek Pty Ltd and Berkelouw Leichhardt Pty Ltd

Proposed protected action ballot of employees of Cordeaux Creek Pty Ltd and Berkelouw Leichhardt Pty Ltd - non-AEC ballot agent electronic voting

• [1] On 5 November 2025, the Retail and Fast Food Workers Union Incorporated (RAFFWU) filed an application under s.437 of the Fair Work Act 2009 (FW Act) for a protected action ballot order in relation to certain employees of Cordeaux Creek Pty Ltd and Berkelouw Leichhardt Pty Ltd (the Employers). The Employers are related entities and are bargaining for a single enterprise agreement.

• [2] On 6 November 2025, the Employers confirmed that the application was opposed on the following six grounds:

1. Inconsistency in the description of the group of employees to be balloted in the application and draft order filed by RAFFWU.

1. There has not been a notification time in relation to all employees within the group proposed to be balloted.

1. RAFFWU has not been genuinely trying to reach agreement with the Employers in relation to the employees within the group to be balloted who have not been the subject of a notification time.

1. The Employers should not have to provide the ballot agent with some of the employee information proposed in RAFFWU's draft order.

1. The draft order should be relevantly confined to employees that have appointed RAFFWU as their bargaining representative.

• [3] Given the Employers' opposition, I listed the application for hearing at 9:00am on 7 November 2025. Both parties filed additional material on 7 November 2025 prior to the commencement of the hearing.

• [4] I granted permission for the Employers to be represented by a lawyer at the hearing on 7 November 2025. This was opposed by RAFFWU. I granted permission because I was satisfied granting permission would enable the matter to be dealt with more efficiently given the complexity of the matter and because the hearing was listed at short notice.

• [5] RAFFWU relied on the following evidence in support of its application:

• A Form F34B declaration made by Josh Cullinan (Union Secretary) on 5 November 2025 (Exhibit A1).

• A chain of emails exchanged between RAFFWU and the Employers from 3 September 2025 to 20 October 2025 about the bargaining process (Exhibit A2).

• A log of claims from RAFFWU which identifies 62 claims for the proposed agreement (Exhibit A3).

• Oral evidence from Loukas Kakogiannis (Lead Organiser) adduced during the hearing. Mr Kakogiannis was cross-examined on his evidence.

• [6] The Employers relied on a witness statement from Aimee Zahorodny (Managing Principal - Robin Human Capital Pty Ltd) dated 6 November 2025 (Exhibit R1). Ms Zahorodny's statement had several emails and other documents related to the bargaining process attached. Ms Zahorodny's firm has been engaged to assist the Employers with the bargaining process. Ms Zahorodny was cross-examined on her evidence.

• [7] The degree of contentious issues between the parties reduced during the hearing on 7 November 2025. RAFFWU provided an amended draft order which resolved any inconsistency regarding the description of the group of employees to be balloted and resolved the Employers' concerns about the provision of information about its employees to the ballot agent. RAFFWU also confirmed it agreed to not include proposed ballot question 27. That left the outstanding issues as the Employers' concerns about whether there had been a notification time for all the relevant employees and whether RAFFWU has been, and is, genuinely trying to reach agreement in relation to the entire group of employees to be balloted.

• [8] The Employers issued a notice of employee representational rights (NERR) on 5 September 2025 which referred to a proposed single-enterprise agreement covering the Employers and employees they employ to:

"... perform duties within the Harry Hartog and Berkelouw Books stores in any of the following positions: Store Manager, Assistant Store Manager, Team Leader, Senior Bookseller, Book Seller, and Web Store Team Leader."

• [9] The group of employees that RAFFWU seeks to have balloted is:

"... employees of [the Employers] employed to work in, or associated with, Harry Hartog stores, Berkelouw Books stores or the Paddington Head Office and for whom the Applicant is the bargaining representative."

• [10] It is the inclusion of employees working at the Paddington Head Office in the group to be balloted that is controversial.

• [11] Based on the evidence provided by both parties I find on the balance of probabilities that:

• The Employers do not employ the employees that are based at the Paddington Head Office. The employees working at the Paddington Head Office are employed by other legal entities within the group, namely Temab Pty Ltd and Rovid Pty Ltd.

• Employees of the Employers that are based at the Harry Hartog and Berkelouw Book stores are occasionally required to attend the Paddington Head Office.

• The employees of the Employers that are based at the Harry Hartog and Berkelouw Book stores are currently engaged in one of the following positions: Store Manager, Assistant Store Manager, Team Leader, Senior Bookseller, Book Seller, and Web Store Team Leader.

• [12] The evidence suggests that RAFFWU has previously sought to include employees of Temab Pty Ltd and Rovid Pty Ltd who are based at the Paddington Head Office within the coverage of the proposed agreement. This has not been agreed to by the Employers or the other entities.

• [13] Given my findings above, I am not convinced there is a dispute of significance between the parties in relation to RAFFWU's application. There certainly would have been a significant dispute if RAFFWU had sought to include employees of Temab Pty Ltd and Rovid Pty Ltd within the group to be balloted because there does not appear to be any evidence that these legal entities have agreed to commence bargaining or that bargaining has otherwise commenced with these entities. However, it is clear on the material filed by RAFFWU that it is not seeking to ballot employees of these other entities.

• [14] The Employers submitted that the group of employees to be balloted should be expressed with reference to the same roles that are identified in the NERR. RAFFWU opposed this course of action.

• [15] I am not satisfied there is any compelling reason not to describe the group of employees to be balloted in the terms sought by RAFFWU. The group is clearly limited to employees of the Employers who have agreed to bargain and have issued a NERR. The evidence suggests there is not actually a current practical difference between the proposed group identified by RAFFWU and the proposed group identified by the Employers. I do not consider it is necessary to describe the group of employees to be balloted in precisely the same words as those used in the NERR to prevent some speculative and hypothetical dispute from arising in the future. There are other avenues the parties can utilise to seek assistance from the Commission if problems eventuate.

• [16] I am satisfied that there is a notification time "in relation to" the proposed enterprise agreement.[1] I am also satisfied the other requirements in s.443(1) of the FW Act have been met.

• [17] The bargaining process for the proposed agreement has moved somewhat slowly. However, that in part has been caused by availability issues for the Employers' representative. It is clear RAFFWU has articulated its claims and has been attending meetings to try and reach agreement about the claims. I am comfortably satisfied based on the evidence from Mr Cullinan, Mr Kakogiannis and Ms Zahorodny that RAFFWU has been, and is, genuinely trying to reach agreement with the Employers.

• [18] The ballot is to be conducted by TrueVote Pty Ltd (TrueVote). TrueVote has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.

• [19] 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 3 December 2025.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

• [20] An Order has been separately issued in [PR793544].

• [21] This matter will be assigned to a 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.

Mr S Jauncey from Lander & Rogers for the Employers.

[1] The Full Bench in MUA v Maersk Crewing Australia Pty Ltd [2016] FWCFB 1894 confirmed these are words of "broad import" and that there does not need to be a notification time for the particular enterprise agreement proposed by the PABO applicant.

[2] This is, in effect, 18 working days from the making of the Order and was the specific date sought in the application.

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