FEDERAL COURT OF AUSTRALIA

CPSU, The Community and Public Sector Union v Commonwealth of Australia [2007] FCA 1397

INDUSTRIAL LAW – alleged breaches of s 298K(1) of the Workplace Relations Act 1996 (Cth) – advice issued by Department of Employment and Workplace Relations concerning approval of leave for the Day of Protest – whether advice altered the position of employees to their prejudice – whether advice issued because employees members of an industrial association – whether agency determinations made pursuant to the advice constituted separate contraventions – Held: advice constituted a breach of s 298K(1) but agency determinations not separate breaches.

INDUSTRIAL LAW – certified agreements – the APS to be apolitical – whether conduct of government agencies in following DEWR advice breached certified agreements – Held: certified agreements did not entitle supervisors to use discretion concerning leave to control attendance of Commonwealth employees in their private time at political events. 

Acts Interpretation Act 1901 (Cth) s 8(c)

Public Service Act 1999 (Cth) ss 7, 10, 20, 22

Workplace Relations Act 2006 (Cth) s 3 and s 719, Sch 7

Workplace Relations Act 1996 (Cth) ss s 4, 178, 298 and Div  2 of Pt VIB

Workplace Relations Amendment (Work Choices) Act 2005 (Cth) Schs 1 and 4

Workplace Relations Regulations 2006 reg 2.19 and reg 4.53

CPSU v Telstra Corporation Ltd (2001) 107 FCR 93applied

Esber v The Commonwealth (1992) 174 CLR 430 referred to

Kelly v Fitzpatrick [2007] FCA 1080 cited

Maritime Union of Australia v CSL Australia Pty Ltd (2002) 113 IR 326 cited

McIlwain v Ramsey Food Packaging Pty Ltd (2006) 154 IR 111applied

CPSU, THE COMMUNITY AND PUBLIC SECTOR UNION, DOUGLAS McGILL, CARRIE CLEMENTS, DARRYL McANINLY AND DECLAN O'CONNELL v COMMONWEALTH OF AUSTRALIA

NSD 944 OF 2006

BRANSON J

6 SEPTEMBER 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  The proceeding be stood over to a date to be fixed for the purpose of making orders giving effect to these reasons and orders as to the penalties, if any, appropriate to be imposed.

2.                  The parties provide to the Associate to Branson J by 19 September 2007:

(a)                an agreed minute as to the orders to be made (other than orders as to penalties) and if agreement has not by then been reached the minutes of orders for which they will respectively contend and brief outlines of submissions in support of the orders; and

(b)               written submissions on the order or orders, if any, as to penalty which they respectively contend should be made.

3.                  The parties provide to the Associate to Branson J by 21 September 2007 such answering written submissions, if any, concerning penalty as they respectively wish to make.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

INTRODUCTION

1                     In 2005 the Australian Council of Trade Unions (‘ACTU’) and its affiliated organisations opposed amendments to the Workplace Relations Act 1996 (Cth) (‘WR Act’) foreshadowed by the executive branch of the Australian government (‘the Government’).  They organised a ‘Day of Protest’ to be held on 15 November 2005.  The first applicant (‘CPSU’) encouraged its members, many of whom are members of the Australian Public Service (‘APS’), to attend the Day of Protest.

2                     The Public Sector Branch of the Department of Employment and Workplace Relations (‘DEWR’) assists Government agencies (‘Agencies’) to implement workplace relations legislation and the Government’s workplace relations policies.  In late 2005 Michael Charles Maynard was the Principal Advisor for the Workplace Relations Implementation Group.  In that capacity he had some oversight of the work of Tulip Chaudhury, who was then Acting Assistant Secretary of the Public Sector Branch, Workplace Relations Implementation Group.  On 9 November 2005 Ms Chaudhury implemented a decision made by Mr Maynard to issue an advice (‘the DEWR Advice’) to the heads of all Agencies concerning their obligations under the WR Act in respect of any industrial action taken in support of the Day of Protest.  The terms of the DEWR Advice are recorded in [36] below.  At least four members of the APS who were members of CPSU were thereafter refused approval to take leave on 15 November 2005 after they indicated that they proposed to attend the Day of Protest.

3                     The applicants instituted this proceeding on 16 May 2006 seeking declarations of breaches by the Commonwealth of the freedom of association provisions of the WR Act and orders imposing penalties on the Commonwealth in respect of those breaches.  Additionally, the applicants sought:

(a)                declarations that the Commonwealth breached certain certified agreements by refusing to grant employees leave to be absent from work on 15 November 2005; and

(b)               orders imposing penalties on the Commonwealth in respect of that conduct.

4                     For the reasons set out below I have concluded that the applicants are entitled to some, but not all, of the relief claimed by them.

STATUTORY REGIME

5                     The conduct on which the case of the applicants is based took place in November 2005.  Part XA of the WR Act as then in force (‘the old Act’) was concerned with freedom of association and Pt VIII was concerned with compliance.

6                     The objects of Pt XA, which was comprised of s 298A – s 298Z, included:

‘to ensure that employers, employees and independent contractors are not discriminated against or victimised because they are, or are not, members or officers of industrial associations.’ (see s 298A(b))

7                     Section 298K(1) relevantly provided:

‘An employer must not, for a prohibited reason, or for reasons that include a prohibited reason, do or threaten to do any of the following:

(b)               injure an employee in his or her employment;

(c)                alter the position of an employee to the employee’s prejudice;’

8                     Section 298L provided that conduct referred to in s 298K(1) is for a prohibited reason if it is carried out because the employee is a member of an industrial association (see s 298L(1)(a)).

9                     Section 298T authorised an application to this Court for orders under s 298U in respect of conduct in contravention of Pt XA.  Those authorised to make the application included the person against whom the conduct was carried out and an organisation where the conduct was carried out with a purpose or intent relating to the persons’ membership of the organisation (s 298T(2) and s 298D).  Section 298U identified the orders that the Court was authorised to make in respect of conduct in contravention of Pt XA.

10                  Section 298V provided as follows:

‘Proof not required of the reason for, or the intention of, conduct

If:

(a)               in an application under this Division relating to a person’s or an industrial association’s conduct, it is alleged that the conduct was, or is being, carried out for a particular reason or with a particular intent; and

(b)               for the person or industrial association to carry out the conduct for that reason or with that intent would constitute a contravention of this Part;

it is presumed, in proceedings under this Division arising from the application, that the conduct was, or is being, carried out for that reason or with that intent, unless the person or industrial association proves otherwise.’

11                  Division 1 of Pt VIII of the old Act was concerned with penalties and other remedies for contravention of awards and orders.  Section 178(1) of the old Act, which was in Pt VIII, provided:

‘Where an organisation or person bound by an award, an order of the Commission (whether under this Act, the Registration and Accountability of Organisations Schedule or otherwise) or a certified agreement breaches a term of the award, order or agreement, a penalty may be imposed by the Court or by a court of competent jurisdiction.’

12                  Section 178(5A) governed who was authorised to sue for and recover a penalty for a breach of a term of a certified agreement.  The Commonwealth did not dispute that the subsection, assuming it to be applicable in this case, authorised the applicants to sue for and recover penalties in respect of the alleged breaches of certified agreements. 

13                  The old Act was substantially amended by Schedule 1 of the Workplace Relations Amendment (Work Choices) Act 2005 (Cth) (‘the Work Choices Act’).  Schedule 1 commenced on 27 March 2006.  The WR Act as amended by the Work Choices Act will be referred to as ‘the new Act’.  Section 3 of the new Act defines ‘reform commencement’ to mean the commencement of Sch 1 of the Work Choices Act (ie 27 March 2006).

14                  Part 1 of Sch 4 of the Work Choices Act authorised the Governor-General to make regulations dealing with matters of a transitional, saving or application nature relating to amendments made by the Work Choices Act.  Regulation 4.53 in Ch 7 of the Workplace Relations Regulations 2006 (‘Workplace Regulations’) provides:

‘Despite the repeal of Part XA of the pre-reform Act by the Work Choices Act, if, before the reform commencement, an application was made to the Court under section 298T of the pre-reform Act, but was not finally determined, the application continues and is to be determined under section 298U of the pre-reform Act as if that Act had not been amended.’

15                  The parties agreed that so far as this proceeding is brought under Pt XA of the old Act, it is to be determined under that part; that is, as if the Work Choices Act had not been enacted.  The Commonwealth placed reliance on reg 4.53.  However, the application in this case was not made to the Court before the reform commencement as defined by the new Act.  Nonetheless, having regard to agreement of the parties, I proceed on the assumption (but without deciding the question) that reg 2.19 of Ch 7 of the Workplace Regulations, which is set out in [18] below, authorises reliance in this proceeding on Pt XA of the old Act.

16                  For the following reasons I conclude that, so far as this proceeding alleges that the Commonwealth breached certain certified agreements, the relevant law is also the old Act.  The certified agreements in question were made under Div 2 of Pt VIB of the old Act and the alleged breaches of the agreements occurred before the enactment of the Work Choices Act. 

17                  Schedule 7 of the new Act is entitled ‘Transitional arrangements for existing pre-reform Federal agreements etc’.  Clause 1 of Sch 7 provides that ‘pre-reform certified agreement’ means an agreement that:

‘(a)      was made under Division 2 or 3 of Part VIB of this Act before the reform commencement; and

(b)        was certified under Division 4 of Part VIB of this Act….’

Clause 6 of Sch 7 provides that Pt 14 of the new Act applies in relation to a pre-reform certified agreement as if it were a collective agreement.  However, the clause does not deal expressly with whether the new Act is to apply in respect of breaches of certified agreements that occurred before the commencement of Sch 1 of the Work Choices Act.

18                  Absent any other statutory provision touching on this issue, it would be necessary to determine whether s 8(c) of the Acts Interpretation Act 1901 (Cth) operates to preserve any rights or obligations acquired, accrued or incurred under s 178 of the old Act.  However, reg 2.19 of Ch 7 of the Workplace Regulations is a statutory provision that touches on this issue.  Regulation 2.19 provides as follows:

‘(1)      Unless the contrary intention appears in a provision of:

(a)        the Act [ie the new Act but not including Schedule 1 or regulations made there under: reg 1.3]; or

(b)        the Work Choices Act; or

(c)        regulations made under the Act or the Work Choices Act;

the amendments made by the Work Choices Act do not affect the enforcement in a court of rights and obligations that arose under the pre-reform Act.

(2)        Subregulation (1) applies whether or not proceedings had been commenced in a court before the reform commencement.’

The Court’s attention was not drawn to any provision of the new Act, the Work Choices Act or any other regulations made under those Acts that discloses a contrary intention to reg 2.19.

19                  In my view the words ‘rights’ and ‘obligations’ in reg 2.19(1) carry the meaning that has been attributed to them in s 8(c) of the Acts Interpretations Act.  In Esber v The Commonwealth (1992) 174 CLR 430 at 440 Mason CJ, Deane, Toohey and Gaudron JJ stated that s 8 protects anything that may truly be described as a right including inchoate or contingent rights.  I conclude that the right of the applicants to invoke the jurisdiction of the Court to impose a penalty pursuant to s 178(1) of the old Act, and the obligation of the Commonwealth to pay any penalty so imposed, survived the enactment of the Work Choices Act.

20                  Regulation 2.14 of Ch 7 of the Workplace Regulations provides support for this conclusion.  As Tracey J observed in Kelly v Fitzpatrick [2007] FCA 1080 at [7], that regulation authorises a workplace inspector to institute a proceeding in respect of an alleged breach of a matter under the old Act.  I note incidentally that the maximum penalties prescribed by the old Act for a breach of s 178 are the same as the maximum penalties now prescribed by the new Act under which s 178 has been renumbered s 719.

THE PARTIES

21                  CPSU is an organisation registered under the WR Act and an ‘industrial association’ within the meaning of Pt XA of the old Act.  It is affiliated to the ACTU which is the peak trade union body in Australia.

22                  It is not contentious that the individual applicants are all employed under the Public Service Act 1999 (Cth) (‘the PS Act’) and are thus APS employees (s 22 of the PS Act, s 15 of the Customs Administration Act 1985 (Cth) and s 4A of the Taxation Administration Act 1953 (Cth)).  The Commonwealth is their employer.  Their respective Agency Heads, on behalf of the Commonwealth, have all the rights, duties and powers of an employer in respect of them (s 20 of the PS Act).  For those employees who work in DVA and DEST respectively, their Agency Head is the Secretary of their Department.  For those who work in the ACS and the ATO respectively, their Agency Head is the Head of their Statutory Agency (s 7 of the PS Act).

FACTUAL MATTERS

Union opposition to Work Choices

23                  The ACTU and its affiliated organisations, including CPSU, organised the Day of Protest to demonstrate opposition to the Government’s proposal to amend the WR Act.  CPSU encouraged its members to attend the Day of Protest by, amongst other things, issuing bulletins and newsletters, including electronic bulletins and newsletters, and producing posters and flyers advertising the Day of Protest.

24                  There is no evidence that CPSU encouraged its members to take unauthorised leave on 15 November 2005.  Rather the evidence discloses that CPSU encouraged its members to seek appropriate leave.  For example, the first bulletin issued by CPSU to its members concerning the Day of Protest was apparently that dated 10 October 2005.  That bulletin included the following paragraph:

‘National Day of Protest – 15 November: All CPSU member [sic] are urged to organise appropriate leave to attend this important national, community event.  Using Sky-channel broadcast facilities at hundreds of locations around the country, this will be Australia’s largest ever meeting.  More details soon.’

25                  A further bulletin issued to CPSU members on 20 October 2005 advised:

‘What about getting leave?  Make sure you get appropriate leave organised and attend your local meeting …

The following options for leave by CPSU members can be accessed:

·        Flextime and annual leave;

·        Non-core hours

·        Where workers are in a scheduled or rostered work environment they should agree on a suitable delegation to attend the meeting.’

26                  A later bulletin dated 25 October 2005 advised:

‘Make sure you get appropriate leave (flextime/recreation/RDO) organised now so you can and [sic] attend your local meeting.’

27                  An electronic newsletter issued by CPSU dated 10 November 2005 contained the following statements:

‘DON'T FORGET TO MAKE LEAVE ARRANGEMENTS:  All CPSU members attending the rally are reminded to make appropriate leave arrangements for 15 November.  Remember this is a community event, not “protected” industrial action so you will need to have approved RDO, flex leave, recreation leave etc.’

Drafting of the DEWR Advice

28                  By at least 27 October 2005 Mr Maynard, Ms Chaudhury and others within DEWR were aware that the Day of Protest was being organised.  By an email of that date Mr Maynard directed the following observation to Ms Chaudhury:

‘Tulip – we should consider providing advice to all APS and non-APS agency heads on their rights and obligations under the WR Act.’

Mr Maynard gave evidence that the rights and obligations to which he intended to refer were the right to have regard to the operational needs of their respective Agencies when considering applications for leave and the obligation under s 187AA of the WR Act not to pay employees for time spent in industrial action. 

29                  On 2 November 2005 David Negus, a member of the Public Service Branch, Employment Framework and Conditions Group in DEWR, provided Ms Chaudhury with a draft advice.  Ms Chaudhury provided that draft advice to, amongst others, Mr Maynard and Bob Bennett, Legal Officer, Workplace Relations Legal.  It appears that these, and other officers of DEWR, thereafter suggested amendments to the draft.  A number of versions of the draft advice were received in evidence. 

30                  Mr Maynard gave evidence that the first version of the draft advice that he considered in detail was one prepared on 4 November 2005.  Paragraph 4 of that version read as follows:

‘Whilst Agency leave arrangements are a discretionary matter for Agency Heads, giving consideration to the operational requirements of the organisation and the agreed leave provisions contained in the Agency’s agreements, Agencies should consider the reasons for any requested leave and make appropriate judgements about work priorities.’

31                  Mr Maynard was responsible for deleting the words “Whilst Agency leave arrangements are a discretionary matter for Agency Heads …” from this version of the draft advice.  He offered the following explanation:

‘In my opinion, these words were wrong.  Not all employee leave is in the discretion of Agency Heads.  DEWR’s leave policy allows employees with over 40 days accrued recreational leave to self-approve their leave, thereby removing the Agency Head’s discretion in relation to the granting of leave.  Leave arrangements in Commonwealth public sector employment may be prescribed in collective agreements.  Australian Workplace Agreements (‘AWAs’), employer policies, legislation and, in limited circumstances, common law agreements.  I expected that there would be other employers, besides DEWR, that did not have the discretion to approve leave in all situations.’

Mr Maynard’s evidence was that he omitted, rather than qualified, the words about leave arrangements being a discretionary matter for Agency Heads because he wanted the advice to have general application.

32                  Mr Maynard also gave evidence that he was responsible for the omission of the words “Agencies should consider the reasons for any requested leave and make appropriate judgements about work priorities” from this version of the draft advice.  He offered the explanation that he was concerned that the words might be construed as requiring an enquiry about the reason for which employees were considering leave and, in particular, that Agencies might consider this to be an obliquely expressed instruction to refuse leave to attend the Day of Protest.

33                  On 7 November 2005 Mr Maynard sent an email to Peter Boxall, Secretary of DEWR advising:

‘The following actions are proposed in relation to the [Day of Protest]:

·        a WR Advice has been drafted with the assistance of WRLG; and

·        legal counsel has been sought to run our s 127 order application.’

The email concluded:

‘The draft WR Advice is attached.  I propose we release it on Wed this week.  This timing ensures it can be modified to incorporate any issues raised at [the] Portfolio Secretaries meeting and still provide all department/agencies with 6 days advance notice on how to prepare for the 15/11 action.’

34                  On 8 November 2005 Mr Maynard asked that the draft advice be redrafted to include the definition of protected and unprotected action ‘so there can be no misunderstanding in relation to the status of this action’.  I interpolate that Mr Maynard was not asked to identify the precise action the status of which he wished to have clarified.  It does not appear that his request was acted upon. 

35                  Later that same day, at Mr Maynard’s request, the draft advice was sent to Mr Bennett so that he could have a ‘final look’ at the document to ensure its consistency with the WR Act.  I infer from this request that Mr Maynard did not at this time doubt Mr Bennett’s understanding of the operation of the WR Act in the context of the draft advice.

DEWR Advice

36                  The DEWR Advice was issued on 9 November 2005 over the signature of Ms Chaudhury.  Identical advice was issued to Agency Heads and Heads of Corporate Management of (a) all agencies staffed under the PS Act (APS Advice 06 of 2005) and (b) subject to limited exceptions, all non-APS Commonwealth authorities (Non-APS Advice 04 of 2005).  APS Advice 06 of 2005 bore the following heading:

‘APS Advice 06 of 2005 – Proposed Industrial Action –

National Community Day of Protest – 15 November’

Non-APS Advice 04 of 2005 had the same heading except for the advice reference.  The content of the DEWR Advice was as follows:

‘This Advice is to remind agencies of their obligations under the Workplace Relations Act 1996 (WR Act) in respect of any industrial action taken in support of the National Community Day of Protest against the Australian Government’s industrial relations reforms on 15 November 2005.

2.         Section 4(1) of the WR Act defines industrial action to include failure or refusal to attend work by persons who are employed by the Commonwealth or a constitutional corporation. This covers Commonwealth employees participating in the National Community Day of Protest on 15 November 2005.

3.         Agencies are further reminded that section 187AA of the WR Act prohibits the payment of wages to employees for any period they are engaged in industrial action. Agencies must therefore take appropriate action to ensure they meet the ‘no-strike pay’ provisions for any industrial action taken by its employees.

4.         Agencies are reminded that they should not promote industrial action.  To this end:

(a)        agencies should also consider their operational requirements and the agreed leave provisions contained in agency agreements when considering any requests for leave on 15 November 2005; and

(b)        leave (including access to flextime credits) should not be made available to cover participation in industrial action and agencies may wish to consider making clear that any retrospective leave applications (e.g. for sick leave) for this day must be accompanied by a medical certificate or other appropriate form of documentary evidence.

5.         For further information agencies should contact their DEWR client contact officer.’

37                  Mr Maynard gave evidence that at the time that the DEWR Advice was being drafted he was concerned not to create an impression that leave should not be granted if the purpose of the leave was to attend the Day of Protest.  He agreed that at that time he read CPSU flyers and looked at the ACTU website although he said that he was unable to recall (ie at the time of giving evidence) that CPSU was not requesting or recommending to its members to take unauthorised leave.  Mr Maynard also gave evidence that he did not give any consideration to the heading of the DEWR Advice.  He agreed that as at 9 November 2005 he knew of no person or organisation that was proposing industrial action on 15 November 2005.  He denied that at the time that the DEWR Advice was drafted he thought that attendance at the Day of Protest would of itself be industrial action. 

38                  Neither Dr Boxall nor Mr Bennett gave evidence in this matter.  Dr Boxall’s knowledge of the above matters, and his understanding of the DEWR Advice which was provided to him at least in draft form, remain unexplained.  Mr Bennett’s understanding of the DEWR Advice is clarified by written advice given by him (see [47] below).

Later Conduct of DEWR

39                  On 10 November 2005 the Secretary of the Department of Prime Minister and Cabinet sent to other Agency Heads for their guidance a copy of a notice that he had sent to staff regarding the Day of Protest.  Dr Boxall forwarded the notice to Finn Pratt, the Deputy Secretary of DEWR, Mr Maynard and Ms Chaudhury for their information without commenting on its contents.  The notice was in the following terms:

‘All Staff

Industrial Action – 15 November 2005

I have received advice from the Department of Employment and Workplace Relations on agency obligations under the Workplace Relations Act 1996 in respect of any industrial action taken in support of the National Community Day of Protest.

Section 187AA of the Act prohibits the payment of wages to employees for any period that they are engaged in industrial action.  As such, if you intend to take industrial action you must inform your supervisor.  Leave (including flextime credit) will not be made available to cover participation in industrial action.  Any retrospective leave applications (e.g. for sick leave) must be accompanied by a medical certificate or some form of documentary evidence.’

I am satisfied that the advice from DEWR to which this notice refers is the DEWR Advice.

40                  On the same day (ie 10 November 2005) Stephen Jones, Assistant National Secretary, CPSU, wrote to Dr Boxall concerning the DEWR Advice.  He pointed out that the DEWR Advice suggested that leave should not be granted to APS employees if they intended to use that leave to attend the Day of Protest.  Mr Jones’ letter advised that it had been reported to CPSU that a manager had told an employee that if the employee were spotted at the event on previously approved recreation leave the employee would be fined and his or her waged docked.  The letter stated:

‘Your Department appears to have taken the view that attendance at the event on Tuesday can constitute industrial action, and result in employees being disciplined or fined.  I am sure that you agree that what employees do on their own time and on authorised absences such as recreation leave is their own business.  Indeed any such action or threat of recrimination is unlawful.

It may be that agencies have misunderstood the advice that they have received from you. …

We ask that your Department issue an urgent written clarification advising that employees should not be prohibited from accessing leave because they intend to attend the Community Protest on 15 November ….’

41                  Dr Boxall referred Mr Jones’ letter to Mr Maynard and others for the development of a response.  The response was prepared by Mr Maynard and Ms Chaudhury and discussed with Mr Bennett.  The reply, also dated 10 November 2005, was signed by Ms Chaudhury.  Dr Boxall was made aware of the nature of the response.

42                  The reply to Mr Jones’ letter declined his request for written clarification of the DEWR Advice to be issued.  It expressed the opinion that ‘the granting of leave is a matter for each agency to determine within the framework of the obligations under the Workplace Relations Act, their industrial agreements and their operational requirements’.  The letter concludes:

‘As this is made clear within the existing Advice, we do not intend to issue any further advice on this matter.’

43                  When giving evidence Mr Maynard was unable to recall consulting anyone to see if the DEWR Advice could be read as suggesting that applications for leave should be refused if the purpose of the leave was to attend the Day of Protest.  Nor could he recall taking any steps to see if Agencies were interpreting the DEWR Advice in the way described by Mr Jones.  I conclude that it is more likely than not that Mr Maynard did not do either of these things before approving the terms of the letter signed by Ms Chaudhury.

44                  On Friday 11 November 2005 a CPSU organiser circulated an email to CPSU members employed in DEWR in the following terms:

‘Can as many DEWR staff as possible

1)                 Seek approved leave for Tuesday (you don’t have to give a reason but attending the Community day of protest is the timing)

2)                 If that is refused use the existing dispute settling procedures and appropriately escalate to a more senior manager

3)                 try to get all requests and refusals in writing

4)                 Send a copy, bcc or otherwise of the request and refusal including the escalation to Natalie Hartman …

Our aim here is to try to produce the required evidence of DEWR following their own advice which we now believe to be incorrect.’

45                  The above email came to the attention of Mr Maynard on that day and at 12:35 pm he drew it to the attention of Dr Boxall, Mr Pratt and Jeremy O’Sullivan, General Manager, Corporate of DEWR.  Mr Maynard told Mr O’Sullivan:

‘Jeremy – I believe we need to get some detailed, clear advice to all managers asap to mitigate inconsistent response to such requests.’

46                  At 2:06 pm on 11 November 2005 Mr Maynard, Ms Chaudhury and Mr Bennett all received an electronic copy of an email from a CPSU delegate in the Office of Transport Security, apparently directed to CPSU members and staff.  The email included a summary of legal advice received by CPSU.  A copy of that advice was attached to the email.  The legal advice was summarised in the following way:

‘1.        the National Community Day of Protest is not industrial action;

2.         Industrial Action does not extend to people taking authorised leave
       including annual leave, RDO or flex leave;

3.         If DOTARS [ie Department of Transport and Regional Services]
       applies DEWRs guidelines, and denies leave on the basis
       of the reason for leave, then they may well be breaching S298K of
       the Workplace Relations Act by applying leave in a discriminatory
       manner;

4.         DOTARS cannot NOT pay you if you take authorised leave and attend
       the day of protest; and

5.         “Agencies will be in compliance with Workplace Relations Act only if
       they treat applications for leave for 15 November 2005 in the same
       way that they would treat any other such applications, irrespective
       of the purpose of the leave.”’

47                  At 2:36 pm on 11 November 2005 Mr Bennett sent an email to, amongst others, Mr Maynard and Ms Chaudhury in respect of the CPSU advice in which he stated:

‘Our response is straightforward

DEWR has advised all agencies not to grant staff leave for the purpose of taking part in the day of action.

Staff who absent themselves from work without approval are by definition on unauthorised leave and may have their pay deducted.

Staff who apply for leave are to be asked why they want leave, if they are seeking leave to take part in the day of action, leave will not be granted.

…

Staff who have had leave approved for an approved purpose, or who are not required to work on the day of action, are free to attend the day of action and will not be penalised for doing so provided they do not engage in unlawful conduct of [sic] breach the code of conduct provisions of the Public Service Act

Nothing in the CPSU advice contradicts the above advice.’

48                  It appears that at the exact time that the above email was being sent by Mr Bennett, Mr  Maynard was sending to Mr Bennett an email seeking his urgent advice on ‘the arguments raised in the attached legal advice’ [ie the CPSU advice].  At 3:07 pm that day Mr Bennett replied to Mr Maynard’s email as follows:

‘In anticipation of any further discussion on Monday, can I add that in order [to] show that a Commonwealth employee is engaged in industrial action for the purposes of s4(1) that it is only necessary to show that the employee has (a) failed or refused to attend work; and (b) that they are employed by the Commonwealth  It is not necessary to show that they are engaged in an industrial dispute.’

I infer from Mr Bennett’s use of the word ‘add’ that this response was intended to be supplementary to his earlier response to the CPSU advice which is set out in [47] above.

49                  At 2:39 pm on 11 November 2005 Mr Maynard forwarded Mr Bennett’s initial response to the CPSU advice (ie the advice set out in [47] above) to Mr Pratt, Mr O’Sullivan and Ms Chaudhury with the message:

‘FYI – Bob Bennett’s advice on the CPSU’s assertions and their attached legal advice is set out below.’

Mr Maynard’s message contained no comment on the accuracy of Mr Bennett’s advice.  It did not suggest that Mr Bennett had misconstrued the DEWR Advice.  Mr Maynard gave affidavit evidence that he did not at this time give consideration to the accuracy of Mr Bennett’s advice.  He stated that although he did not respond in writing to Mr Bennett’s email he discussed the email with Mr Bennett a short time after receiving it and then gave it no further consideration.  Under cross-examination Mr Maynard said that it would have been a number of days later before he discussed the email with Mr Bennett.  He also said that he forwarded the email to others ‘without due consideration’.

50                  At 2:41 pm on 11 November 2005 the following email from Mr O’Sullivan was sent to all senior officers and State Managers of DEWR:

‘HR Advice – Requests for leave on Tuesday 15 November 2005

We understand that some staff might request leave for Tuesday 15 November 2005 or part thereof.  Please do not approve or decline such requests until we review operational requirements and advise accordingly on Monday morning.’

51                  At 3:57 pm on 11 November 2005 Ms Chaudhury forwarded to Mr Maynard and Mr Bennett a copy of a memorandum from Steve Ramsey, a CPSU Legal Officer, apparently directed to other CPSU officers, which stated:

‘Many agencies acting on advice from DEWR have stated that they will not be granting leave next week if the person intends whilst on that leave to attend the national Day of Protest Rally.  Many agencies seem to have interpreted the DEWR advice to mean that attendance at the rally in and of itself constitutes industrial action, and have linked this with the statutory prohibition on payment of wages whilst engaged in industrial action.’ 

52                  Mr Maynard accepted in cross-examination that he read Mr Jones’ letter of 10 November thoroughly.  He claimed to have only skim-read the CPSU legal advice, Mr Bennett’s advice which is set out in [47] above and Mr Ramsey’s memorandum.  He rejected the suggestion that by the afternoon of 11 November 2005 he knew that in all probability Agencies were refusing applications for leave on 15 November 2005 based on the purpose of the leave.

53                  On Monday 14 November 2005 at 11:26 am Mr O’Sullivan provided advice to senior officers and State Managers of DEWR concerning leave requests for the following day as follows:

‘I confirm that when considering requests for any leave for this day, or any part thereof, the same considerations apply to management decisions to approve or decline leave requests.  Chiefly, these are the operational requirements of the relevant Team, Branch, Group, Site Office etc.’

54                  Mr Maynard was not aware of any review of the operational requirements of DEWR conducted between 11 November and 11:26 am on 14 November 2005.  I am satisfied that no review was conducted. 

55                  At 1:13 pm on 14 November 2005 Mr O’Sullivan sent Mr Maynard and Mr Bennett an email on the subject ‘AGS Advice’.  The email reads:

‘Richard Harding called me from the airport – he has spoken to Henry Burmester – who believes that operational considerations (and the relevant CA) should be the determining factor in decisions on leave requests.  I said it didn’t really matter because we recognised there was a risk (the magnitude of which is not entirely clear – and on which reasonable minds can differ), and having regard also to more important political considerations – went with the operation considerations as the determining factor.

You will note that the note I sent out was even more circumspect than the draft I provided for discussion – as the MO [ie Minister’s Office] requested certain deletions.’

It is accepted that Mr Harding is a solicitor employed in the office of the Australian Government Solicitor (‘AGS’) and that Mr Burmester QC is the AGS’s Chief General Counsel.  I infer that the note sent out by Mr O’Sullivan to which the email refers is the note containing the advice set out in [53] above.

56                  Mr O’Sullivan did not give evidence in this matter.  For this reason I do not know why he worded his email in the way that he did, and in particular why he reported saying that ‘it [ie presumably Mr Burmester’s advice] didn’t really matter’.  I also do not know what deletions the Minister’s Office requested from the draft note that he provided for discussion. 

57                  Mr Maynard gave evidence that he could not recall what was the ‘risk’ to which Mr O’Sullivan referred in the above email.  He did not agree that the risk was the risk of continuing to refuse leave if the purpose of the leave was to attend the Day of Protest.  Mr Maynard was unable to identify the ‘more important political considerations’ to which Mr O’Sullivan referred.  He did not agree that Mr O’Sullivan’s advice to senior officers and State Managers of DEWR of 14 November 2005 was not issued earlier because legal advice was being sought from the AGS as to the advice to be given.  He suggested that the advice was only given on 14 November because Mr O’Sullivan was at an off-site meeting for the whole of the afternoon of 11 November 2005.

Meaning of DEWR Advice

58                  Neither Ms Chaudhury nor Mr Maynard was willing to accept that the DEWR Advice was reasonably open to be understood as advising Agencies that leave should not be made available to a Commonwealth employee who proposed to use the leave to attend the Day of Protest.  For the following reasons I conclude that it was open to be understood in this way. 

59                  First, the terms of the DEWR Advice were apt to convey the message to all but the most analytical minds that the attendance of Commonwealth employees at the Day of Protest would constitute industrial action.  The bold heading of the DEWR Advice juxtaposed the phrases ‘Proposed Industrial Action’ and ‘National Community Day of Protest – 15 November’ thereby implying that attendance at the Day of Protest would constitute industrial action.  This implication was reinforced by paragraph 2 of the advice which asserted, in effect, that failure (ie failure per se, not unauthorised failure) to attend work to participate in the Day of Protest by persons employed by the Commonwealth would constitute ‘industrial action’ as defined by s 4(1) of the WR Act.  The implication was additionally reinforced by paragraph 4(b) of the advice which, by reminding Agencies that ‘leave (including access to flextime credits) should not be made available to cover participation in industrial action’, suggested that an employee on approved leave from his or her work could nonetheless be participating in industrial action. 

60                  Secondly, the evidence discloses that at least two of those involved in drafting the DEWR Advice took the view that it advised all Agencies not to grant employees leave for the purpose of taking part in the Day of Protest.

61                  As mentioned above, Mr Bennett provided written advice to this effect on 11 November 2005 (see [47] above).  I interpolate that, subject to Mr Maynard’s evidence that he spoke to Mr Bennett about his advice some days later, there is no evidence of any recipient of Mr Bennett’s advice contradicting his understanding of the advice which DEWR had given to Agencies.  As mentioned above, Mr Maynard sent Mr Bennett’s advice to Mr Pratt, Mr O’Sullivan and Ms Chaudhury without commenting on its content.  At approximately the same time Ms Chaudhury sent the advice to Mr Johnson and Mr Negus with the simple message ‘FYI and file please’. 

62                  Craig Johnson, a Team Leader in the Public Sector Branch, Workplace Relations Implementation Group of DEWR, was also involved in the drafting of the DEWR Advice.  It seems clear that he had the same understanding of its import as Mr Bennett.  In particular, I accept the evidence of Wayne Lodge, who was Manager, Workplace Relations in the ACS in November 2005, that Mr Johnson expressed approval of the terms of a draft response to an application for leave on 15 November 2005 made by the second applicant, Mr McGill.  The draft response included the following sentences:

‘As I understand it, your request for flex on the 15th is so you can attend the ‘National Day of Action’ organised by the ACTU.

Therefore your request for a flex day on the 15 November 2005 is denied.’

63                  Additionally, Andrew Millett, who in November 2005 was Director of Agency Agreements and Industrial Relations for the ATO, gave evidence that he spoke with Ms Chaudhury before drafting an email for Anne Ellison, First Assistant Commissioner ATO People and Place, to circulate within the ATO.  The content of that email is set out in [80] below.  I infer that the first paragraph reflects advice given to Mr Millett by Ms Chaudhury.

64                  Moreover, for reasons that need not be set out in these reasons for judgment, the Commonwealth formally made the following concessions:

‘1.        A number of agencies contacted DEWR after the release of APS Advice 06 of 2005 and Non-APS Advice 04 of 2005 (“WR Advice”) to seek further advice on the correct interpretation of WR Advice.  These included Australian Customs Service, Australian Taxation Office, Department of Education, Science and Training and Department of Veterans’ Affairs.

2.         In November 2005 DEWR officers within the Workplace Relations Implementation Group were responsible for providing additional advice to agencies in relation to an advice circulated by the Public Sector Branch of DEWR.

3.         A number of DEWR officers within the Workplace Relations Implementation Group advised agencies who sought clarification or further advice that the WR Advice meant that leave sought for the purpose of attending the Day of Protest could not be approved.  These officers included:

a.                  Janet Hartmann

b.                  Marco Spaccavento

c.                   Laura Andrew

4.                  A number of agencies were provided with advice that the WR Advice meant that leave sought for the purpose of attend [sic] the Day of Protest could not be approved.  These agencies included:

a.                  Australian Nuclear, Science and Technology Organisation

b.                  CSIRO

c.                   Department of Education, Science and Training

d.                  Australian Industrial Registry

e.                   Department of Foreign Affairs and Trade

f.                    Geoscience Australia’

65                  Having regard to the above evidence and the concessions made by the Commonwealth, I reject Ms Chaudhury’s evidence that the DEWR Advice was unambiguous and accurate and advised Agencies that applications for flex leave for 15 November 2005 should be considered solely in the light of the operational requirements of the agency concerned.  Indeed, I find that Ms Chaudhury’s evidence was unsatisfactory in many respects.  She was unwilling or slow to make appropriate concessions when shown contemporaneous documentary evidence inconsistent with her own evidence.  Notwithstanding her consideration of Mr Jones’ letter of 10 November 2005 (see [40] above), she claimed not to have understood anyone to be saying that APS employees were being refused leave on the ground that the purpose of the leave was to attend the Day of Protest.  She declined to agree with the suggestion that individuals in the various Agencies could reasonably have concluded that the DEWR Advice was telling them that no leave should be granted to anyone to attend the Day of Protest.  She was also less than frank in other ways.  For example, she was the only witness questioned on the topic who was unwilling to concede that in all probability the majority of people seeking to attend the union organised Day of Protest would be union members.  It is unnecessary for me to speculate about why Ms Chaudhury did not give her evidence frankly.  It is sufficient to record that, generally speaking, I do not accept her evidence where it is in conflict with other evidence before the Court.

66                  I have also concluded that significant aspects of Mr Maynard’s evidence should not be accepted.  In particular, I do not accept that he failed to appreciate that the amendments initiated by him to the draft advice (see [31]-[32] above) meant that the DEWR Advice was likely to be understood as advising that leave should not be granted to a Commonwealth employee if the leave was sought for the purpose of attending the Day of Protest.  Nor do I accept that he was unaware that, in the days leading up to 15 November 2005, at least some Agencies were interpreting the DEWR Advice in that way.  It is unnecessary for me to reach a concluded view on whether Mr Maynard sought deliberately to mislead the Court.  It is possible that, with the passage of time, Mr Maynard has unconsciously rationalised aspects of his conduct in late October and early November 2005. 

67                  Having regard to all of the evidence touching on the issue, I am satisfied that on 9 November 2005 Mr Maynard either intended, or was willing to allow, the DEWR Advice to convey the message to Agencies that leave, including flex leave, should not be granted to a Commonwealth employee if the leave was sought for the purpose of attending the Day of Protest.  I am also satisfied that Mr Maynard and other senior officers of DEWR became aware shortly after the DEWR Advice was issued that it was being so understood by Agencies and took no steps to clarify its meaning.  I have reached these conclusions after giving careful consideration to the language of the DEWR Advice and the following matters. 

68                  First, despite the measured and courteous tone of Mr Jones’ letter of 10 November 2005, no action was apparently taken by anyone in DEWR to check the accuracy of the assertions contained in it or to issue the clarification sought by Mr Jones.  Moreover, the response to Mr Jones’ letter was in terms that appear calculatedly ambiguous (see [42] above). 

69                  Secondly, Mr Maynard’s request for urgent advice from Mr Bennett in respect of the ‘arguments’ in the legal advice received by CPSU suggests against the CPSU advice being consistent with the views then held by Mr Maynard.  The inference that the views of the law and the construction of the DEWR Advice on which DEWR was acting were those propounded by Mr Bennett in his email of 11 November 2005 (see [47] above) is strengthened by the fact that neither Mr Maynard, nor it would seem any other officer of DEWR, took steps to prevent that email being further circulated within DEWR or to place on record that the accuracy of its contents was not accepted by DEWR (see [49] above).  Indeed, Mr Maynard forwarded Mr Bennett’s email to Mr Pratt, Mr O’Sullivan and Ms Chaudhury for their information describing it as advice on the ‘CPSU’s assertions’. 

70                  Thirdly, it seems likely that Mr O’Sullivan’s email of 11 November 2005 (see [50] above) was sent because Mr O’Sullivan had decided to seek legal advice from the AGS concerning the circumstances, if any, in which employees should be allowed to take leave on 15 November 2005.  No evidence was led in explanation of the terms of Mr O’Sullivan’s email of 14 November 2005 (see [55] above).  In the circumstances I am satisfied that what Mr O’Sullivan meant when he said that ‘it didn’t really matter’ was that it didn’t really matter that Mr Burmester’s advice was not consistent with the view of the law on which DEWR had been proceeding.  I am also satisfied that the ‘risk’ to which the email refers is the risk that the advice of Mr Bennett was inaccurate.  It seems likely in the circumstances that the ‘more important political considerations’ to which Mr O’Sullivan referred were the political dangers inherent in DEWR being seen to be acting in a way calculated to advance the party political interests of the Government rather than in a manner that was consistent with the legal advice of the AGS.

FREEDOM OF ASSOCIATION

Case of the Applicants

71                  The applicants claimed that three separate categories of conduct engaged in on behalf of the Commonwealth resulted in contravention of s 298K(1) of the old Act.

72                  First, the applicant placed reliance on the circulation by Ms Chaudhury of the DEWR Advice.  They contended that the circulation of the DEWR Advice altered the positions of Commonwealth employees who were members of CPSU to those employees’ prejudice, or alternatively, constituted a threat to so alter their positions (s 298K(1)).  The applicants alleged that this conduct was undertaken because, or for reasons including that, the employees were members of an industrial association (s 298L(1)).

73                  Secondly, the applicants relied on determinations made by officers of ACS, ATO, DVA and DEST respectively that employees within those Agencies would not be permitted to access leave entitlements on 15 November 2005 if the purpose of the leave was to attend the Day of Protest.  They contended that these determinations altered the positions of employees who were members of the CPSU to the employees’ prejudice, or alternatively, constituted a threat to so alter their positions.  The applicants alleged that this conduct was also undertaken because, or for reasons including that, the employees were members of an industrial association.

74                  Thirdly, the applicants relied on the decisions whereby the individual applicants were refused approval to be absent from their respective workplaces on leave on 15 November 2005 or, in the case of the fourth applicant, whereby he was advised that his pay would be docked for the time that he spent at the Day of Protest.  They contended that such decisions altered, or threatened to alter, the positions of the individual applicants to their prejudice.  Again, they pleaded that this conduct was undertaken in each case because, or for reasons including that, the individual applicant was a member of an industrial association.

Impact of DEWR Advice

75                  The Commonwealth submitted that the DEWR Advice operated merely as an advice and did not, by and of itself, alter the position of any employee, nor constitute a threat to do so.  It argued that an act capable of altering the position of an employee could only occur when a particular Agency made a determination that affected employees in that Agency based on its interpretation of the DEWR Advice and its view as to the desirability of following that advice.

76                  The above submission calls for consideration of the significance that was in fact accorded to the DEWR Advice by Agencies.

77                  I turn first to the ACS.  The Commonwealth admitted that on about 14 November 2005 an officer or officers of the Commonwealth employed within the ACS determined that leave applied for by APS employees in the ACS specifically to participate in the Day of Protest should not be approved.  The evidence of Annwyn Godwin explains the relevance of the DEWR Advice to this ACS determination.  Ms Godwin is presently the acting National Director, People and Place in the ACS.  In November 2005 Ms Godwin was undertaking the duties of her substantive position which is National Manager, Staffing in the ACS.  Ms Godwin gave evidence that she is not aware of an Agency having ever failed to comply with DEWR advice as to its rights and obligations under the WR Act.  She considered that the ACS was bound to comply with the DEWR Advice because:

‘DEWR is the central agency responsible for managing industrial relations and employee participation in the Commonwealth, it has that status.’

78                  Mr Lodge also considered that the ACS was bound to comply with the DEWR Advice.  He gave evidence that:

‘The Department of Workplace Relations is the central government agency who is responsible for public policy.  It has been custom and practice for the entire time that I have been a workplace relations practitioner that when an advice is promulgated to agencies that there is an automatic following of that advice unless it is on the face of the advice so incorrect as not to be followed.’

Mr Lodge has been a workplace relations practitioner since the late 1990s.

79                  The significance that was accorded to the DEWR Advice by the ATO is revealed by the conduct of Ms Ellison.  Before the DEWR Advice was issued (ie on 1 November 2005) Ms Ellison sent an office minute to all ATO Commissioners and National Program Managers in the ATO which drew attention to the Day of Protest and stated:

‘Employees may wish to attend the NCDP [National Community Day of Protest] as a result of encouragement by the ACTU and CPSU.  Attendance at this event does not constitute industrial action in connection with an industrial dispute.  The protest is being organised by the ACTU about proposed legislation.

Action

A minute will be sent to all team leaders advising that attendance at the NCDP is not considered industrial action, however staff wishing to attend must apply for and be approved for leave in the normal course of business.  No extra weight should be given to this purpose for leave approval.’

80                  On 3 November 2005 Ms Ellison sent an email to all ATO managers as foreshadowed in the above minute.  However, on 11 November 2005 Ms Ellison advised senior managers in the ATO as follows:

‘The Department of Employment and Workplace Relations have just released an advice stating that they believe attendance at the NCDP will constitute industrial action.

I will shortly release an all staff minute explaining that this means that any further requests for leave for this purpose will be rejected and that evidence will be required if employees use unplanned leave on Tuesday 15 November.

This stance reverses the position taken by the Tax Office in my minute of 1 November.  DEWR were made aware of the Tax Office’s intentions before the minutes were released and it is unfortunate that DEWR did not inform us earlier of their interpretation of this matter.’

81                  Ms Ellison sent an email to all ATO employees on 14 November 2005 advising that DEWR had just advised that the Day of Protest was a form of industrial action and as such ‘access to leave and flex leave should not be given to employees wishing to attend’.  The email advised that‘[e]mployees requesting leave for the specific purpose of attending the NCDP will not have that leave approved’ but that decisions already made approving requests for leave would stand.  She gave evidence that she felt that she had no choice but to alter her earlier advice because:

‘we do have an obligation as an agency of government to be consistent with government policy.’

82                  The significance that was accorded to the DEWR Advice by DVA is illustrated by the following events.  In November 2005, Ed Killesteyn was Acting Secretary of DVA, Russell McLaughlan was Branch Head People Services in the Corporate Division of DVA and Belinda Patey was an Assistant Director People Services in that Division.  On 11 November 2005, after receiving a copy of the notice that had been issued to staff by the Secretary of the Department of Prime Minister and Cabinet (see [39] above), Mr Killesteyn issued a notice to all DVA staff in identical terms.  As noted above, the notice issued by the Secretary of the Department of Prime Minister and Cabinet, and thus the notice issued by Mr Killesteyn, referred to the DEWR Advice.

83                  The staff notice issued by Mr Killesteyn had been prepared in draft form by Ms Patey on 11 November 2005.  On the same day Ms Patey also drafted a notice from Mr McLaughlan to managers and human resources staff to explain the significance of the staff notice for leave applications.  Mr McLaughlan issued this notice, probably in the terms drafted by Ms Patey, on 11 November 2005.  The notice was in the following terms:

‘Requests for Leave on 15 November 2005

In light of the All Staff Notice issued by the Acting Secretary the following information is provided.  Managers are to ensure that:

·        no leave (rec or flex) is approved for 15 November 2005 where it is known that an employee is attending the National Rally;

·        other leave requests for that day (where it is not known if the employee is attending the National Rally) are to be considered on the basis of operational requirements;

·        all employees wishing to access personal leave for 15 November are asked to provide a medical certificate or other suitable supporting evidence;

·        staff are advised that absences on 15 November without prior approval or, in the case of requests for personal leave, without supporting medical evidence will be treated as unauthorised and without pay; and

·        a record is kept by all managers of any staff member who fails refuses to attend work on 15 November 2005 in order to participate in the National Community Day of Protest.  Each State Office and National Office will be asked to provide details of these staff to facilitate deductions from salary’

Mr McLaughlan gave evidence that the above notice reflected his understanding of the DEWR Advice.

84                  The evidence concerning the significance accorded to the DEWR Advice by DEST is limited.  On 14 November 2005 the Personnel Branch of DEST issued an email in the following terms:

‘Dear All,

You will no doubt have seen quite a bit of publicity in the media in recent days regarding the ACTU national day of action (Tuesday 15 November 2005) to protest against the Governments’ [sic] Workplace Relations Reform (Workchoices).  The purpose of this e-mail is to advise you on the arrangements for employees wishing to attend this protest.

We have received advice from Department of Employment and Workplace Relations (DEWR) today regarding employees’ attendance at this protest.  DEWR have advised that employees who attend the protest will be participating in unprotected industrial action in accordance with the Workplace Relations Act 1996 (WR Act) and under the WR Act payment of salary during the period of attendance at the protest is prohibited.

Managers should note that given the WR Act prohibits payment of salary during attendance at events such as this there is no access to any form of paid leave (including flex leave).  There is no need to amend periods of leave already approved which include Tuesday 15 November, except those specifically approved to attend the protest.  However, where managers receive a request for leave on Tuesday 15 November they will need to ascertain the reason for the leave request.  In addition, any retrospective leave applications for 15 November 2005 (e.g. personal leave) will need to be accompanied by a medical certificate or some appropriate documentary evidence.

If you have any questions please contact me on [number] or Chris Silk on [number].’

Despite the reference in their email to advice received ‘today’ from DEWR, I conclude that the advice referred to was the DEWR Advice.  No witness identified any other advice as being the advice to which the email referred.

85                  As the above evidence reveals, managers within each of ACS, ATO, DVA and DEST regarded the DEWR Advice as reflecting Government policy in the area of workplace relations and thus as advice that they should follow.  I conclude that, as the communications identified above make clear, those managers understood the DEWR Advice to advise that leave, including flex leave, should not be made available to an employee who proposed to use the leave to attend the Day of Protest. 

86                  Having regard to my above findings, I reject the respondent’s submission that the issuing of the DEWR Advice did not of itself alter, or threaten to alter, the position of employees of the Commonwealth.  The intended and likely effect of the issue of the DEWR Advice was that Agencies would treat it as an instruction as to how they should act should employees seek to access leave entitlements to attend the Day of Protest.

87                  Support for the above approach is to be found in CPSU v Telstra Corporation Ltd (2001) 107 FCR 93.  In that case the Full Court gave consideration to an email which the managing director of the employer’s employee relations group had issued to managers and team leaders at a time when redundancies were imminent.  After referring to the ‘important values’ inherent in individual employment contracts, the email stated:

‘Managers will be held accountable to support the values of the Company’s preferred model of individual employment.’

The email stopped short of telling managers and team leaders to discriminate against employees employed under awards or certified agreements in the redundancy process.

88                  The employer in CPSU v Telstra contended, that as the email had not been circulated to all managers involved in the redundancy process, it was akin to a proposal or a declaration of intention and did not itself change the selection criteria for redundancy.  The Full Court at [14] rejected that contention.  It found that it was open to the primary judge to conclude, as his Honour had done, that the selection process for redundancy could be influenced by senior management and that many managers would understand the email to be an instruction to give employees on individual contracts more favourable treatment in the redundancy process.  The Full Court further held at [15] that (a) at the date of the email, redundancies were imminent and there could be little doubt that the email was to be taken into account in respect of them and (b) the email refined the criteria for redundancy by requiring preference to be given to employees who had signed Australian Workplace Agreements.  The Full Court concluded at [16] that in the circumstances the email constituted an instruction that employees employed under awards or certified agreements were to be discriminated against in the redundancy process.

89                  In the present case I am satisfied that the process for approving leave, and in particular flex leave, for Commonwealth employees for 15 November 2005 was influenced by the DEWR Advice.  In particular, as discussed below, I am satisfied that the process for approving leave in the case of employees working in ACS, ATO, DVA and DEST was affected by the DEWR Advice.  The DEWR Advice was reasonably open to be understood, and was understood by Ms Godwin, Ms Ellison and Ms Leggett amongst others, as an instruction not to grant employees leave to cover participation in the Day of Protest.

Circulation of the DEWR Advice

90                  For the above reasons I am satisfied that the circulation to Agencies of the DEWR Advice altered the position of Commonwealth employees, and in particular Commonwealth employees who were members of the CPSU, to their prejudice because it gave rise to a real risk that any requests made by them to take leave on 15 November 2005 for the purpose of attending the Day of Protest would not be considered according to the usual practices of their respective Agencies but by reference to a more restrictive criterion.  As the admissions and evidence referred to below concerning the individual applicants reveal, that risk eventuated in the case of each of the individual applicants.  However, so far as Ms Clements is concerned, I am satisfied that her application to take leave was subsequently reconsidered by reference to the appropriate criterion (see [105] below).

Agency Determinations

91                  The Commonwealth accepted that the email sent by Ms Ellison on 14 November 2005 to all ATO employees (see [81] above) and the email sent on the same day by the Personnel Branch of DEST to all DEST employees (see [84] above) altered the position of employees in those agencies or threatened to have that effect.  It contended, however, that as the only memoranda produced by ACS and DVA were circulated to senior managers, and not to employees of the Agency generally, the memoranda did not themselves alter the position of any employee to his or her prejudice or constituted a threat to do so.  I observe that this contention appears to overlook the staff notice issued by Mr Killesteyn on 11 November 2005 (see [83] above).

92                  I turn to the memorandum issued by ACS.  As mentioned above, at the relevant time Ms Godwin was National Manager, Staffing in the ACS.  Ms Godwin gave evidence that on 14 November 2005, after the DEWR Advice was brought to her attention, she caused an email to be sent on her behalf to all National Directors, National Managers and Regional Directors regarding the Day of Protest.  That email, which was sent at 11:37 am and marked as of high importance, stated:

‘Any leave being applied for specifically to participate in the National Day of Action should not be approved.  This position is the official position of the Department of Employment and Workplace Relations.’

On 10 November 2005 Ms Godwin had given what she described as ‘quick and dirty’ advice to the same effect to a manager who was concerned about an application made by Mr McGill to take a day’s flex leave on 15 November 2005.

93                  As mentioned above, Mr McGill is employed in the ACS.  He is a CPSU Section Councillor and a CPSU workplace delegate.  He gave affidavit evidence that he decided to attend the Day of Protest because CPSU requested its members and delegates to do so and because he agreed with the concerns about the proposed legislation expressed in CPSU bulletins.  On or about 28 October 2005 Mr McGill received verbal approval to take flex leave to attend the Day of Protest.  However, on 11 November 2005 that approval was revoked.  After Mr McGill asked for this decision to be provided to him in writing, he received an email on 14 November 2005 at 2:15 pm in the terms of the draft response approved by Mr Johnson (see [62] above).

94                  Thereafter Mr McGill attended a meeting with a CPSU official and Ms Joanne Churchill, the ACS’s Acting Director Corporate – Qld, regarding the refusal of his leave application.  Subsequently Mr McGill received a copy of an email from the CPSU official to Ms Churchill which asked her to place her policy with respect to the granting of leave for 15 November 2005 in writing.  He also received a copy of Ms Churchill’s response.  The response stated:

‘NM Staffing has advised that any leave being applied for specifically to participate in the national Day of Action should not be approved.  This position is the official position of the Department of Employment and Workplace Relations.’

95                  I am satisfied that the determination reflected in the advice to which Ms Churchill referred altered the position of employees in the ACS to their detriment.  As Mr McGill’s experience revealed, approval to take flex leave that would in the ordinary course have been granted was refused because the leave was to be used to attend the Day of Protest.

96                  The fourth applicant (Mr McAninly) is employed within DVA and is a CPSU workplace delegate.  He gave affidavit evidence that he decided to attend the Day of Protest because he agreed with the concerns CPSU had raised about the proposed industrial relations laws and because, as a CPSU member and officer, he thought it was an important union event to attend.  On 11 November 2005 Mr McAninly received the staff email from Mr Killesteyn referred to in [82] above.  Nonetheless, on 14 November 2005 Mr McAninly indicated, in his usual way, that he would be taking two hours of flex leave on the morning of 15 November 2005.  On 15 November 2005 he attended the Day of Protest.  On or about 5 December 2005 Mr McAninly was advised by the Acting Human Relations Manager of DVA that his pay would be docked for the time that he spent at the Day of Protest.  I interpolate that it appears that this has not in fact occurred.  I am satisfied that the Acting Human Relations Manager gave the above advice to Mr McAninly because of the staff notice issued by Mr Killesteyn on 11 November 2005 and the notice issued by Mr McLaughlan on the same day.

97                  I am satisfied that the determination reflected in the notices issued by Mr Killesteyn and Mr McLaughlan respectively on 11 November 2005 (see [82]-[83] above) altered the position of employees in DVA to their detriment.  The staff notice issued by Mr Killesteyn was circulated to all employees of DVA.  Mr McLaughlan’s notice was issued to senior staff to explain the significance of the staff notice.  Mr McLaughlan’s evidence suggested that both notices were drawn to reflect the DEWR Advice.  So far as Mr Killesteyn’s notice is concerned, it is perhaps more accurate to say that it reflected the interpretation placed on the DEWR Advice by the Department of Prime Minister and Cabinet which Mr Killesteyn presumably accepted.  Mr McLaughlan was not himself, independently of the DEWR Advice, persuaded that attendance at the Day of Protests with leave would constitute industrial action.  He was aware that CPSU took the opposite view to that expressed by the DEWR Advice.  I am satisfied that had the above notices not been issued, applications by Commonwealth employees in DVA to take leave on 15 November 2005 would have been processed in the usual way and without regard to the Day of Protest.

98                  I therefore conclude that determinations made by officers of ACS, ATO, DVA and DEST that Commonwealth employees within those agencies would not be permitted to access leave entitlements on 15 November 2005 if the purpose of the leave was to attend the Day of Protest altered the position of Commonwealth employees in those agencies, and particularly employees who were members of CPSU, to those employees’ prejudice.  Absent those determinations, a Commonwealth employee in those Agencies who requested leave on that day would have had his or her request assessed in accordance with the usual practice of his or her Agency.  That practice would not have called for permission to be refused because of the purpose for which the leave was to be used.  I consider below whether this conduct of the Commonwealth was undertaken for a prohibited purpose.

Individual Applicants

99                  It follows from my above conclusions that any decision whereby an individual Commonwealth employee was refused approval to be absent from the employee’s workplace on 15 November 2005 because he or she proposed to attend the Day of Protest altered the employee’s position to his or her prejudice.  For the reasons set out in [93]‑[95] above, I conclude that Mr McGill was refused approval to be absent from his employment in ACS on 15 November 2005 because he intended to attend the Day of Protest. 

100               I turn to consider the position of the fifth applicant, Mr O’Connell.  Noel Robert Simpson, a Branch Manager of DEST, gave evidence that on 14 November 2005 he approved Mr O’Connell’s request to take a period of annual leave on 15 November 2005 and entered the approval in a software system.  However, after receiving the email dated 14 November 2005 from the Personnel Branch, he spoke with Mr O’Connell and confirmed that his leave was for the purpose of attending the Day of Protest.  Mr Simpson then sent to Mr O’Connell a copy of an email that he directed to the Personnel Branch stating that although he had approved Mr O’Connell’s leave request he now understood that he was not allowed to approve leave to attend the Day of Protest.

101               Mr Simpson’s evidence was that later that day Mr O’Connell said to him words to the effect: ‘So I won’t be able to go then’.  Mr Simpson said that he replied: ‘Well, the approved leave is still in the system’.

102               Mr O’Connell gave evidence that after he received the copy of Mr Simpson’s email to the Personnel Branch he spoke with a CPSU organiser.  The organiser sent an email to Mr Simpson in which he referred to s 298K of the WR Act and requested that Mr O’Connell’s leave application be treated in the same way as other applications, irrespective of the purpose of the leave.  He sought urgent advice of Mr Simpson’s decision.  Mr Simpson did not provide the requested advice.  Mr O’Connell further gave evidence, which I accept, that at approximately 8:15 am on 15 November 2005 he asked Mr Simpson about the email from the Union and Mr Simpson responded to the effect:

‘Yes, I did receive the email from the union and I received further advice from People Management Branch.  However, I do not believe that the People Management Branch email permits me to reverse my decision regarding your leave.’

103               Mr Simpson acknowledged that he had the impression that Mr O’Connell considered that he was not allowed to take leave on 15 November 2005.  Mr Simpson was aware that Mr O’Connell did not absent himself from work during the course of 15 November 2005.  He did not advise Mr O’Connell that he was officially on leave for part of that day.

104               In my view, having regard to all of the above circumstances, Mr O’Connell correctly understood that the approval for him to take a period of annual leave on 15 November 2005 had been withdrawn.  The reason that the approval was withdrawn was because he planned to attend the Day of Protest.

105               The circumstances surrounding the application made by the third applicant, Ms Clements, to take leave on 15 November 2005 were as follows.  In November 2005 Christopher Bruce Merigan was the Business Process Manger at ATO’s Small Business Call Centre at Northbridge, Western Australia (‘the Call Centre’).  Ms Clements worked in the Call Centre at that time.  Mr Merigan gave evidence that he worked with and directed the Workforce Scheduler at the Call Centre including with respect to the approval of leave.  Mr Merigan received the email sent by Ms Ellison on 14 November 2005.  In reliance on it he initially advised Ms Clements on 14 November 2005 that no leave was being approved to attend the Day of Protest.  However, later than day Mr Merigan spoke by telephone to Mr Andrew Millett, ATO Director of Employee and Industrial Relations.  Mr Millett asked him to review requests for leave to attend the Day of Protest solely on the basis of business needs.  Mr Merigan complied with Mr Millett’s request and then provided advice to Ms Clements that for operational reasons there was no ability to approve her request for leave.  I see no reason to doubt Mr Merigan’s bona fides in this respect.  I conclude that the operative reason why Ms Clements was refused approval to take leave on 15 November 2005 concerned the operational requirements of the Call Centre and not her intention to attend the Day of Protest.

106               I am satisfied that the advice to Mr McAninly that his pay would be docked for the time that he spent at the Day of Protest constituted a threat to alter his position to his prejudice.  Mr McAninly had followed his usual practice in respect of the taking of flex leave when he absented himself from his workplace for two hours on 15 November 2005.  Had DVA followed its usual practice with respect to the taking of flex leave no threat to dock Mr McAninly’s pay would have been made.  I am satisfied that the reason that the threat was made to dock Mr McAninly’s pay was that he had attended the Day of Protest.

107               I consider below whether the above conduct of the Commonwealth with respect to the individual applicants other than Ms Clements was undertaken for a prohibited purpose.

Prohibited Purpose

Circulation of the DEWR Advice

108               As indicated above, I am satisfied that senior officers of DEWR either intended the DEWR Advice to convey the message that leave should not be granted to allow Commonwealth employees, and particularly employees who were members of CPSU, to attend the Day of Protest or were willing to allow it to convey that message.

109               The Commonwealth contended that since the DEWR Advice applied generally to Commonwealth employees, and was not in any way dependent on whether or not an employee was a member of an industrial association, the conduct involved in its issue was not undertaken because, or for reasons including that, the employees were members of an industrial association.

110               The topic with which the DEWR Advice was concerned was the granting of leave to attend the Day of Protest.  The evidence makes clear that the Day of Protest was a union initiative.  CPSU repeatedly urged its members and others to attend.  This fact was known to Mr Maynard, Ms Chaudhury and other senior officers of DEWR concerned with the preparation of the DEWR Advice.  Mr Maynard acknowledged during his cross-examination that the reason why he initiated the process that led to the DEWR Advice being issued was ‘the CPSU campaign on seeking as many people as possible seeking leave on that day’ (ie 15 November 2005).

111               Officers in Agencies other than DEWR understood that it was union members who were likely to want to attend the Day of Protest.  Mr McLaughlan acknowledged that his expectation was that the majority of people seeking to attend the Day of Protest would be union members.  David Charles Furmark, an officer in the ATO, thought that a number of APS employees in his section of the ATO would want to attend the Day of Protest because they were union members.  Mr Merigan expressed the view that probably all of the people who wished to attend the Day of Protest would be union members.

112               I am satisfied that those officers of DEWR who were responsible for the issuing of the DEWR Advice also knew that the overwhelming majority of Commonwealth employees who would wish to attend the Day of Protest were union members – and predominantly CPSU members.  It would be unrealistic not to see Mr Maynard’s acknowledgement that he initiated the process that led to the DEWR Advice being issued because of the CPSU campaign to get as many people as possible to attend the Day of Protest as an acknowledgement that he acted because of the risk of significant numbers of CPSU members responding to that campaign.

113               In McIlwain v Ramsey Food Packaging Pty Ltd (2006) 154 IR 111 at [355]-[357] Greenwood J gave consideration to whether conduct that applied generally to employees might nonetheless be conduct undertaken for a prohibited purpose so far as some of those employees were concerned.  His Honour at [355] said:

‘Dismissal of employees for a prohibited reason within a group of employees some of whom may be dismissed for a non-prohibited reason does not remove the individual or bilateral character of the prejudicial conduct on the part of the employer as against that employee. It would be an odd thing if the statutory quality of contravening conduct in respect of some employees could be dissolved amongst a group and remedial entitlements otherwise available to the affected individuals thereby lost.’

114               I conclude that the DEWR Advice was issued because a significant number of Commonwealth employees were members of CPSU and, as a consequence, it was recognised within DEWR that many of them might wish to attend the Day of Protest.  For the reasons given by Greenwood J in McIlwain v Ramsey Food Packaging Pty Ltd it is immaterial that the DEWR Advice might additionally have impacted on the positions of Commonwealth employees who were not members of an industrial association.  Although the DEWR Advice did not in terms refer to membership of an industrial association, it was issued because of the CPSU membership of a significant number of Commonwealth employees.

Agency Determinations

115               As indicated above, I have concluded that each of Mr McGill and Mr O’Connell was refused approval to take leave on 15 November 2005 because he proposed to attend the Day of Protest.  I also accept that a threat was made to dock Mr McAninly’s pay for the time that he spent at the Day of Protest because he attended the Day of Protest.  However, despite the link discussed above between attendance at the Day of Protest and membership of an industrial association, I am satisfied that the relevant determinations made by officers of ACS, ATO, DVA and DEST respectively were not made because employees affected by the determinations were members of an industrial association.  Rather the evidence shows that the immediate or operative reason for the determinations was the circulation of the DEWR Advice (Maritime Union of Australia v CSL Australia Pty Ltd (2002) 113 IR 326 at [54]).  The determinations were a direct consequence of the contravention of s 298K(1) that resulted from the circulation of the DEWR Advice.  They illustrate how the DEWR Advice altered the position of Commonwealth employees who were members of CPSU to the employees’ prejudice.  The officers concerned felt obliged to ensure that their respective agencies complied with the DEWR Advice. 

116               Having regard to the above finding, s 298V of the old Act has no role to play in respect of the Agency determinations (Greater Dandenong City Council v Australian Municipal, Administrative, Clerical and Services Union (2001) 112 FCR 232 per Finkelstein J at [218]).

Individual Applicants

117               By parity of reasoning, the decisions whereby Mr McGill and Mr O’Connell were refused approval to be absent from their respective workplaces on 15 November 2005, and the threat that was made to dock Mr McAninly’s pay for the time that he spent at the Day of Protest, were not additional contraventions of s 298K(1) of the old Act.  I am satisfied that these decisions were not made because the individuals concerned were members of an industrial association.  The immediate or operative reason that the decisions were made was because of the Agency determinations discussed above – which were themselves made because of the DEWR Advice.

BREACHES OF INDUSTRIAL INSTRUMENTS

118               The applicants contended that the factual matters discussed above gave rise to breaches of various industrial instruments.

119               It is accepted that the following industrial instruments were binding on the Commonwealth with respect to the employment of the individual applicants in November 2005:

• Australian Customs Service Certified Agreement 2004-2007 (‘the ACS Agreement’) with respect to the employment of Mr McGill;
• ATO (General Employees) Agreement 2004 (‘the ATO Agreement’) with respect to the employment of Ms Clements;
• Department of Veterans’ Affairs Enterprise Agreement 2004-2005 (‘the DVA Agreement’) with respect to the employment of Mr McAninly; and
• Stay Here and Grow – DEST Certified Agreement 2002-2005 (‘the DEST Agreement’) with respect to the employment of Mr O’Connell.

The ACS Agreement

120               Clause 2.2 of the ACS Agreement governs flextime.  The clause provides for an employee who has access to flextime to agree a regular pattern of work within the ‘flextime bandwidth’.  Actual hours of attendance are required to be reconciled to the standard weekly hours over a settlement period of four weeks (cl 2.2.6).  An employee may accumulate a maximum of 40 hours ‘credit’ by working hours in excess of the agreed regular pattern (cl 2.2.7).  Under the heading ‘Absences’the following subclauses appear:

‘2.2.9   Absences from duty are subject to approval by the employee’s supervisor.  Whole day absences taken under flextime should not exceed three days during a four-week settlement period.

2.2.10    Unscheduled absences should be notified to the employee’s supervisor as soon as possible, and by a time agreed between the supervisor and the employee.’

121               The respondent contended that Mr McGill was not denied access to flextime. It argued that:

‘It does not follow that, if an employee is denied approval to be absent on a particular day, he has thereby been denied access to flextime.  The opportunity to be absent from work on occasions with the approval of an employee’s supervisor (“flex leave”) is a standard feature of flextime; see cl 2.2.9.  The fact that approval for an absence is withheld on a particular occasion does not mean that the employee has been denied access to flextime itself.’

122               The above argument may be accepted.  However, it fails to address the issue of the reason why Mr McGill was refused approval to access flextime on 15 November 2005.  Mr McGill received advice that his request for a flex day on that day was denied because he had requested the leave to attend the Day of Protest.  No provision of the ACS Agreement provides support for a suggestion that an employee’s supervisor, in determining whether an absence from duty on flex leave should be approved, is entitled (other than perhaps in exceptional circumstances) to take into account adversely to the employee how the employee proposes to utilise the leave if approved.

123               Moreover, no certified agreement should be construed as intending to authorise the Commonwealth to act inconsistently with the APS Values listed in s 10 of the PS Act.  The first of the APS Values so listed is:

‘the APS is apolitical, performing its functions in an impartial and professional manner’ (s 10(1)(a))

124               In November 2005 the foreshadowed amendments to the WR Act were a matter of party political controversy.  The use by a supervisor or manager of his or her discretion to approve leave for the purpose of limiting the attendance of APS employees in their private time and in their private capacities at an event intended to demonstrate either community support or community opposition to an initiative having party political significance would involve the exercise of the discretion for an improper purpose.

125               I conclude that by denying approval for Mr McGill to access flex leave on 15 November 2005 because he proposed to attend the Day of Protest the Commonwealth breached clause 2.2 of the ACS Agreement.

The ATO Agreement

126               Clause 2 of the ATO Agreement expressly recognises employees’ freedom of association, including their freedom to decide whether or not to join an association of employees and whether or not to participate in any legitimate activities in support of an association of employees.  Clause 74 of the ATO Agreement governed flextime.  It relevantly provides:

74.1          Flextime is a way of arranging work times to give employees some freedom in choosing individual daily working patterns which certain limits.

74.2          It is not designed to increase or reduce the total number of hours that must be worked.

74.3          Flextime is conditional upon operational requirements being met and an efficient service continuing to be provided to the public.

…

74.5          Flex leave is where an employee works less than his or her nominated regular hours on any day.  Prior approval and reasonable notice is required for any flex leave.  The team leader will consider the operational requirements of the office and the needs of employees when determining whether or not to approve flex leave.’

127               Ms Clements was refused approval to take flex leave on 15 November 2005.  I am satisfied that approval was initially refused because she proposed to attend the Day of Protest (see [81] above).  However, as mentioned above, I am satisfied that her request to take leave was subsequently reconsidered with the result that the operative reason why she was refused approval to take leave on 15 November 2005 related to the operational requirements of the Call Centre. 

128               I reject the applicants’ claim that the Commonwealth breached clause 74 of the ATO Agreement by refusing Ms Clement’s application for flex leave on 15 November 2005.

The DVA Agreement

129               Clause 26 of the DVA Agreement governs working arrangements within the DVA including flextime.  As discussed above, Mr McAninly was absent from duty at the DVA on 15 November 2005 having adopted his usual practice when taking flex leave.  Although he was subsequently advised that his pay would be docked for the time that he spent at the Day of Protest I am satisfied that this has not occurred.  It seems more likely that Mr McAninly has inappropriately been recorded as being on leave when he was at work. 

130               I reject the applicants claim that the Commonwealth breached cl 27 of the DVA Agreement by its conduct in respect of Mr McAninly.

The DEST Agreement

131               Clause 119 of the DEST Agreement gives employees an entitlement to 20 working days paid annual leave for each 12 months of completed service.  As discussed above (see [104]) I conclude that Mr O’Connell was refused approval to take a period of annual leave on 15 November 2005.  I further conclude that he was refused this approval because he proposed to use the leave to attend the Day of Protest.

132               For the reasons given above in respect of the provisions of the ACS Agreement, the provisions of the DEST Agreement do not authorise the Commonwealth, in deciding whether to approve an application to take annual leave, to take into account adversely to the employee (other than perhaps in exceptional circumstances) how the employee proposes to utilise the free time that would become available to him or her should the approval be granted.

133               I conclude that by denying Mr O’Connell approval to take a period of annual leave on 15 November 2005 because he proposed to attend the Day of Protest, the Commonwealth breached cl 119 of the DEST Agreement.

CONCLUSION

134               The matter will be stood over to a date to be fixed to allow the parties to make submissions as to the orders appropriate to be made having regard to these reasons for judgment, including the appropriate order or orders, if any, imposing penalties.

Associate:

Dated:         6 September 2007