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Circular 2016/8W: Advice for agencies on termination of protected industrial action in the Department of Immigration and Border Protection


1. On 5 October 2016, the Fair Work Commission (FWC) terminated the CPSU's protected industrial action (PIA) at the Department of Immigration and Border Protection (DIBP) on grounds of significant risk to public safety and security.

2. Termination of protected industrial action can lead to arbitration of any unresolved bargaining matters by a full bench of the FWC.

3. The scheme of the Fair Work Act 2009 is based around bargaining. Arbitration is rare and occurs only in exceptional circumstances.

Bargaining in other agencies

4. The decision by FWC to terminate PIA at DIBP was based on the specific circumstances that existed in that agency. It does not affect bargaining in other agencies.

5. Any eventual arbitrated decision would be confined to the DIBP circumstance. It would not set a precedent for any other agencies in bargaining.

Workplace Bargaining Policy

6. The Australian Government's Workplace Bargaining Policy 2015 is not affected by the circumstances at DIBP. The policy remains in force and will not change.

7. Agencies are to continue to bargain new agreements in accordance with the policy.

Background: termination of PIA and arbitration

8. A high threshold needs to be met for termination of PIA. This includes that the action is endangering life, personal safety, health or welfare; or that it is causing significant harm to the Australian economy, or part of it.

9. At present these circumstances do not exist in any other agency.

10. FWC is not bound by the position of any bargaining representative. Employees do not get to vote on the outcomes of arbitration.

11. The timing of any decision varies depending on the complexity of the matter. Some other arbitration cases have taken some time to be determined.

12. At the end of arbitration, the FWC issues a binding Workplace Determination. This operates like an enterprise agreement in practice.

Further information and advice

13. For further information and advice, please contact your APSC Relationship Manager or workplacerelations [at] apsc.gov.au

Last reviewed: 
13 February 2019