Australian Border Force and the Immigration Department have had a serious setback in a high-stakes legal battle with against their main workplace union, with the Fair Work Commission throwing out much of the department's case.
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The result is a spectacular "own goal" that the DIBP's brought upon itself by trying some tough legal tactics, according to the Community and Public Sector Union.
But the department accuses its adversary of a legal ambush that will hurt its workforce by dragging out the proceedings even longer, with hearings set for August and September now pushed back to November and December.
The Department of Immigration and Border Protection's 13,500 public servants are expected to form the backbone of the Coalition's new Home Affairs department but have not had a payrise since 2013.
The majority of DIBP workers have repeatedly rejected offers made under the hardline bargaining policies ushered in by the Abbott government, resulting in three years of bitter industrial stalemate.
The two sides have been locked, since early 2016, in Fair Work Commission arbitration aimed at ending the deadlock.
Lawyers for Immigration made an aggressive move in June to strike out some of evidence in the CPSU's case, arguing the material was covered by Parliamentary privilege.
But the union's legal team responded in kind and the commission agreed, in a decision handed down on August 11, that the same rules should apply to Immigration's case.
The ruling knocked out vast swathes of material taken from budget papers and other government publications.
The CPSU says the department's case has been all but wiped-out by the ruling and that DIBP's legal team faces a substantial rebuilding job.
The union says the department's "legal manouverings" are to blame and CPSU National Secretary Nadine Flood said Immigration's lawyers' "bright idea" of raising Parliamentary privilege has backfired.
"It's an own goal for the Commonwealth," Ms Flood told Fairfax
"The Commonwealth's move has come back to bite them,"
"They just lost the majority of their evidence."
"They should have foreseen that the same test could be applied to their evidence.
"Apparently they didn't.
"But the real issue here is not the legal games played by the Commonwealth's team of barristers but the government's unwillingness to provide a fair fix for DIBP workers who have now gone four years without a pay rise."
A departmental spokesman provided a different version of events to Fairfax, saying the CPSU objected to the DIBP evidence "only days before hearings were scheduled to commence and nearly four months after the department filed it."
"The [commission's] decision means that evidence filed by both the CPSU and the department will need to be reviewed and in some cases, alternative evidence filed," the spokesman said.
"This is the third change to the FWC timetable arising from the timing of CPSU contributions to the arbitration process, including two previous extensions granted to the CPSU to file evidence.
"As a result, the opportunity for arbitration hearings to even commence within the original FWC schedule has been eliminated.
"This further delay is incredibly frustrating for the Department and its staff."
