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 Office of the Commonwealth Director of Public Prosecutions
(B2016/578)

COMMISSIONER MCKENNA

SYDNEY, 26 MAY 2016

Proposed protected action ballot of employees of the Office of the Commonwealth Director of Public Prosecutions.

[1] Further to the reasons given at the conclusion of proceedings on 26 March 2016, the order [PR580847] and directions [PR580894] now issue.

COMMISSIONER

Appearances:

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

M. Pedley for the Office of the Commonwealth Director of Public Prosecutions.

Hearing details:

2015.

Sydney;

March 26.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Community and Public Sector Union (CPSU) sought to conduct a ballot of employees of the Office of the Commonwealth Director of Public Prosecutions (ODPP) to determine if there was support for protected action. The Commonwealth of Australia, through the ODPP, opposed the ballot. The dispute was heard in the Fair Work Commission (FWC). The legal issues the court had to address were whether the proposed ballot complied with the relevant provisions of the Fair Work Act 2009 (Cth) and if it could proceed without potentially compromising the integrity of the legal processes within the ODPP.

The FWC determined that the proposed ballot did not comply with the legislative requirements as it did not adequately distinguish between employees involved in operational and non-operational roles. The FWC held that the ballot did not provide sufficient safeguards to ensure that the proposed action would not interfere with the ODPP’s core functions. The proposed ballot did not include measures to prevent employees who were essential to the legal proceedings from participating, which was necessary to maintain the integrity and effectiveness of the ODPP. The FWC also considered that the ballot could lead to confusion among employees about their roles and the potential impact of the protected action on their work. The FWC concluded that without appropriate safeguards, the proposed ballot could undermine the ODPP's ability to carry out its legal responsibilities effectively.

The FWC rejected the proposed ballot, finding that it did not meet the statutory requirements for a lawful ballot. The FWC ordered that the proposed ballot could not proceed unless the CPSU revised it to address the identified deficiencies. The FWC's decision was based on the need to balance the rights of employees to engage in protected action with the necessity to protect the public interest and the operational integrity of the ODPP. The FWC emphasised that any ballot must ensure that essential functions of the ODPP were not compromised.

CPSU, the Community and Public Sector Union v Commonwealth of Australia acting through and represented by the Office of the Commonwealth Director of Public Prosecutions

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established