Arbitration by the Fair Work Commission

Last updated: 06 Feb 2018

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Bargaining Policy Q&As

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Why is the Department of Home Affairs in arbitration?

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

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 FWC. Employees do not get to vote on the outcomes of arbitration.

Do these circumstances exist in any other agencies at present?


Was it the third no vote which pushed the Department into arbitration?

No. The Department was already on the path to arbitration when the third vote was cast.

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

Will an arbitrated outcome for Home Affairs impact on bargaining in other agencies?

No. The arbitration is confined to the Department. It will not set a precedent for any other agencies in bargaining. Other agencies are continuing to bargain in accordance with the Workplace Bargaining Policy 2018.

The arbitrated outcome will be based on the Department’s circumstances and not impact Government policy.

If employees continue to vote no to an enterprise agreement, can the FWC 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 policy, as the name indicates, is focused on bargaining as the avenue to achieve an enterprise agreement. Arbitration is contrary to this approach. The Commonwealth would therefore not agree to arbitration pursuant to section 240 of the Act.

The 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:

  1. The FWC has issued a bargaining order under section 230; and
  2. 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.