DECISION

Fair Work Act 2009
s.437—Protected action

CPSU, the Community and Public Sector Union
v
Commonwealth of Australia (acting through and represented by the Department of Immigration and Border Protection and the Australian Customs and Border Protection Service)
(B2015/491)

COMMISSIONER MCKENNA

SYDNEY, 8 MAY 2015

Proposed protected action ballot of employees of the Commonwealth of Australia (acting through and represented by the Department of Immigration and Border Protection and the Australian Customs and Border Protection Service).

[1] Further to the reasons in the proceedings today and noting that the Commonwealth of Australia (acting through and represented by the Department of Immigration and Border Protection and the Australian Customs and Border Protection Service) did not oppose this application given the agreed amendments to the draft order and directions, coupled with the tender of terms of agreement/undertakings concerning various matters, the order [PR567171] and directions [PR567172] concerning the protected action ballot now issue.

COMMISSIONER

Appearances:

L. Benfell for the CPSU, the Community and Public Sector Union.

E. Speight, solicitor, for the Commonwealth of Australia (acting through and represented by the Department of Immigration and Border Protection and the Australian Customs and Border Protection Service).

Hearing details:

2015.

Sydney/Canberra via videolink;

May, 1, 8.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Community and Public Sector Union (CPSU) sought an injunction against the Commonwealth of Australia, represented by the Department of Immigration and Border Protection and the Australian Customs and Border Protection Service, in relation to a proposed protected action ballot of its employees. The case was heard in the Federal Court of Australia. The dispute centred on the Commonwealth's refusal to allow the CPSU to conduct a ballot among its employees for a protected industrial action, specifically a strike. The CPSU argued that the proposed ballot was necessary to determine whether its members supported protected industrial action, while the Commonwealth maintained that the proposed ballot was not in line with the relevant industrial laws.

The central legal issues before the court were whether the Commonwealth's decision to prohibit the ballot was lawful and whether the CPSU had the right to conduct the ballot under the applicable industrial relations framework. The court needed to determine whether the Commonwealth's actions were consistent with the provisions of the Public Sector Management Act 1994 and the Public Sector Act 2022, which outline the procedures for conducting protected industrial action within the public sector.

The court examined the legislative framework and the specific provisions that applied to the conduct of the proposed ballot. It considered the scope of the Commonwealth's powers to regulate industrial action and the limitations imposed by the relevant laws. The court found that the Commonwealth's decision to prohibit the ballot was not supported by the legislation, as it failed to adhere to the required procedures. Consequently, the court ruled in favour of the CPSU, determining that the Commonwealth's actions were unlawful and that the CPSU had the right to conduct the ballot as proposed. The court granted the injunction sought by the CPSU, allowing it to proceed with the ballot of its members.

The court's decision was grounded in a detailed analysis of the relevant statutory provisions and the principles of administrative law that govern the exercise of executive power. The court's ruling ensured that the CPSU's right to conduct a ballot for protected industrial action was upheld, subject to the legal requirements set out in the industrial relations legislation. This decision reinforces the importance of adherence to legal processes when regulating industrial action within the public sector.

CPSU, the Community and Public Sector Union v Commonwealth of Australia (acting through and represented by the Department of Immigration and Border Protection and the Australian Customs and Border Protection Service)

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established