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What is the status of arbitration at the Department of Home Affairs?

Arbitration proceedings at the Fair Work Commission (FWC) for the Department of Home Affairs have concluded. On 8 February 2019, the Full Bench of the FWC released a Workplace Determination. This follows the FWC publishing its decision on 11 January 2019. The Decision is binding on all parties in the arbitration proceedings.

The Workplace Determination applies to employees of the Department of Home Affairs and provides terms and conditions of employment, including pay increases, hours of work, salary rates and allowances.

Does the arbitrated outcome affect other agencies?

No. The arbitrated outcome does not set a precedent for any other agencies in bargaining.

Does the arbitrated outcome affect the Government’s Bargaining Policy?

No. Agencies continue to bargain for enterprise agreements in accordance with the Government’s Workplace Bargaining Policy 2018 (the Policy).

The arbitrated outcome was based on the Department’s circumstances and does not impact the Government’s Policy.

Why was the Department in arbitration?

In October 2016, the 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?

No.

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.

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 enterprise 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:

     (a) The FWC has issued a bargaining order under section 230; and

     (b) 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.