CPSU, the Community and Public Sector Union v Commonwealth of Australia [2019] FCA 975

FEDERAL COURT OF AUSTRALIA

CPSU, the Community and Public Sector Union v Commonwealth of Australia [2019] FCA 975 File number: VID 1047 of 2018

Judge: O'CALLAGHAN J

Date of judgment: 21 June 2019

Catchwords: INDUSTRIAL LAW – where employees paid a "sea-going allowance" under Australian Customs and Border Protection Enterprise Agreement 2011-2014 – whether ss 470 and 471 of the Fair Work Act 2009 (Cth) required employer not to pay or reduce payments of sea-going allowances during time employees took protected industrial action

Legislation: Fair Work Act 2009 (Cth) ss 470, 471

Cases cited: Construction Forestry Mining and Energy Union v Mammoet Australia Pty Ltd (2013) 248 CLR 619

Date of hearing: 22 March 2019

Registry: Victoria

Division: Fair Work Division

National Practice Area: Employment & Industrial Relations

Category: Catchwords

Number of paragraphs: 43

Counsel for the Applicant: J Fetter

Solicitor for the Applicant: S Kemppi of the CPSU, the Community and Public Sector Union

Counsel for the Respondent: C Dowsett

Solicitor for the Respondent: Australian Government Solicitor

ORDERS VID 1047 of 2018

BETWEEN: CPSU, THE COMMUNITY AND PUBLIC SECTOR UNION Applicant

AND: COMMONWEALTH OF AUSTRALIA (AS REPRESENTED BY THE DEPARTMENT OF HOME AFFAIRS) Respondent

JUDGE: O'CALLAGHAN J DATE OF ORDER: 21 june 2019

THE COURT ORDERS THAT:

1. The application is dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

O'CALLAGHAN J:

Introduction 1 The CPSU, the Community and Public Sector Union (the applicant) is an employee organisation within the meaning of the Fair Work Act 2009 (Cth) (the FW Act) and is entitled to represent the industrial interests of a number of "sea-going marine employees" assigned to sea-going marine employee positions on certain "sea-going" vessels (the employees). 2 The employees were employed by the Commonwealth of Australia (the respondent) in its Australian Customs and Border Protection Service (Customs and Border Protection). 3 Their employment was regulated by an enterprise agreement entitled the Australian Customs and Border Protection Enterprise Agreement 2011-2014 (the Agreement), which is and was at all material times an enterprise agreement made under the FW Act. 4 On a number of occasions in 2015 and 2016 the applicant gave notice to take protected industrial action in the form of bans upon the performance of certain work. 5 On eight occasions between 5 June 2015 and 17 September 2015 the applicant gave notice to the respondent that its members employed by the respondent in Customs and Border Protection intended to take protected industrial action in the form of bans upon the performance of certain work. 6 The relevant employees engaged in the protected industrial action on various dates between 18 June 2017 and 30 September 2015. 7 That protected industrial action constituted a partial work ban as defined by s 470(3) of the FW Act. 8 On three occasions between 14 September 2015 and 15 March 2016, the applicant gave notice to the respondent that its members employed by the respondent in Customs and Border Protection intended to take protected industrial action in the form of work stoppages. 9 The relevant employees engaged in the protected industrial action and did not perform work at various times between 24 September 2015 and 31 March 2016. 10 The respondent applied reductions to the "Sea-going Commuted Allowance" (the Allowance) payments paid under the Agreement in reliance on s 470 of the FW Act (in relation to the work stoppages) and s 471 of the FW Act (in relation to the partial work bans). 11 The single issue for decision is whether the respondent was required by ss 470 and 471 of the FW Act not to pay or to reduce the allowance paid to those employees in relation to periods during which they took protected industrial action. 12 The detailed facts, to which it is otherwise unnecessary to refer for the purposes of resolving that issue, are contained in a Statement of Agreed Facts, which is Annexure A to these reasons.