Arbitration by the Fair Work Commission

Last updated: 30 Nov 2016

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Bargaining policy Q&A

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Why is the Department of Immigration and Border Protection in arbitration?

The Fair Work Commission (FWC) terminated industrial action in the Department of Immigration and Border Protection (DIBP) that was placing the security and safety of the public at risk.

The threshold for termination of industrial action under the Fair Work Act 2009 is very high and can only occur in very specific circumstances.

Where industrial action is terminated by the FWC, this triggers a period of supervised conciliation between the parties.
If any matters remain outstanding at the end of the conciliation period, those matters are arbitrated by a Full Bench of the Fair Work Commission. Employees do not get to vote on the outcomes of arbitration.

DIBP is now at this point.

Do these circumstances exist in any other agencies at present?

No.

Was it the third no vote which pushed Department of Immigration and Border Protection into arbitration?

No. DIBP was already on the path to arbitration.

With the knowledge that arbitration can be a lengthy process, DIBP provided employees with a final opportunity to vote on the agreement before going into arbitration.

Will an arbitrated outcome in the Department of Immigration and Border Protection impact on bargaining in other agencies?

No. The arbitration is confined to the DIBP. It will not set a precedent for any other agencies in bargaining. Other agencies are continuing to bargain in accordance with the Bargaining Policy.

It will not force the Government to change the bargaining policy, as some commentators have suggested.

If employees continue to vote no to an enterprise agreement, can the Fair Work Commission automatically arbitrate a workplace determination?

No. The act of voting no to an agreement does not trigger arbitration of the agreement, no matter how many times you vote no.

Are there any other potential paths to arbitration?

Yes, there are two under the Fair Work Act.

Voluntary arbitration

Section 240 of the Act provides an option for arbitration to occur where all bargaining representatives voluntarily agree to this.

The Commonwealth would not agree to this. The bargaining policy, as the name indicates, is focused on bargaining as the avenue to achieve an enterprise agreement. Arbitration is contrary to this approach and the Commonwealth therefore does not entertain voluntary arbitration under any circumstances. The Commonwealth would not agree to arbitration pursuant to section 240 of the Act.

The Government's bargaining policy has enabled many APS and non-APS agencies to make new agreements. As in any negotiation, agreements can be made where bargaining representatives engage in the process in a constructive and conciliatory way.

Arbitration resulting from a serious breach declaration

Section 269 of the Fair Work Act mandates that a Full Bench of the Fair Work Commission is required to make a bargaining related workplace determination when:

  • The FWC has issued a bargaining order under section 230; and
  • The FWC subsequently issues a serious breach declaration under section 235.

In order to issue a serious breach declaration, the FWC must be satisfied that a bargaining order has been breached in a serious and ongoing way. A range of other conditions also need to be met. It is highly unlikely that this type of scenario would arise in Commonwealth public sector bargaining.