FEDERAL COURT OF AUSTRALIA

[2007] FCA 1397

CPSU, The Community and Public Sector Union v Commonwealth of Australia

SUMMARY

In accordance with the practice of the Federal Court in certain cases of public interest, the Court has prepared a brief summary to accompany the reasons for judgment that are to be delivered today but form no part of the judgment.  It must be emphasised that the only authoritative pronouncement of the Court’s reasons is that contained in the published reasons for judgment.  This summary is intended to assist in understanding the principal conclusions reached by the Court, but it is necessarily incomplete.

6 September 2007

FEDERAL COURT OF AUSTRALIA

[2007] FCA 1397

CPSU, The Community and Public Sector Union v Commonwealth of Australia

SUMMARY OF EFFECT OF REASONS FOR JUDGMENT
GIVEN ON 6 SEPTEMBER 2007

      These reasons for judgment concern a proceeding instituted by the applicants against the Commonwealth in which they claimed relief under the Workplace Relations Act 1996 (Cth) in respect of a written advice issued by the Department of Employment and Workplace Relations (DEWR) on 9 November 2005.  The advice was issued to all agencies staffed under the Public Service Act 1999 (Cth) and to most Commonwealth authorities.  It concerned the approach to be taken in respect of requests for leave on 15 November 2005, the day of the National Community Day of Protest organised by the ACTU and its affiliated organisations.  The Day of Protest was intended to demonstrate opposition to proposed amendments to the Workplace Relations Act.

      The applicants also claimed relief in respect of decisions made within the Australian Taxation office, the Australian Customs Office, the Department of Veterans’ Affairs and the Department of Education, Science and Training respectively as a consequence of the advice issued by DEWR.

      An object of the Workplace Relations Act is to ensure freedom of association, including the rights of employees and employers to join organisations or association of their choice, or not to join an organisation or association.  The applicants argued that by issuing the DEWR advice the Commonwealth contravened provisions of the Workplace Relations Act concerned to ensure that an employer does not alter the position of an employee to the employee’s prejudice for a prohibited reason.  The prohibited reason on which the applicants relied is that the employee is a member of an industrial association.

      The Court has concluded that the DEWR advice was open to be understood as advising that leave, including flextime leave, should not be made available to a Commonwealth employee who proposed to use the leave to attend the Day of Protest.  The Court has further concluded that the responsible officers of DEWR either intended, or were willing to allow, the advice to be so understood.

      As Government agencies regarded themselves as bound to comply with the DEWR advice, the Court has found that the advice altered the positions of Commonwealth employees, and in particular Commonwealth employees who were CPSU members, to their prejudice. The prejudice was the real risk that requests made by them to take leave to attend the Day of Protest would not be considered according to the usual practices of their respective Agencies but by reference to the DEWR advice.

      The Court was satisfied that the DEWR advice was issued because DEWR recognised that:

(a)                a significant number of Commonwealth employees were members of CPSU; and

(b)               many of those members might wish to attend the Day of Protest.

The Court therefore found that, 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.  It was therefore issued for a prohibited reason.

      The Court was not satisfied that the decisions made within the individual agencies to refuse requests for leave on 15 November 2005 were made for a prohibited reason.  It found that those decisions were made because the agencies concerned regarded themselves as bound to comply with the DEWR advice.

      However, the Court was satisfied that in two cases decisions to refuse leave requests resulted in breaches of certified agreements.  It found that the agreements did not entitle (other than perhaps in exceptional circumstances) an employee’s supervisor, in determining whether absence from duty on leave should be approved, to take into account adversely to an employee how the employee proposed to use the leave should it be approved.

      The Court additionally held that the certified agreements were not intended to authorise the Commonwealth to act inconsistently with the APS Values listed in s 10 of the Public Service Act.  The first value listed in s 10 is that ‘the APS is apolitical, performing its functions in a professional and impartial manner’.  The Court noted that in November 2005 the proposed amendments to the Workplace Relations Act were a matter of political controversy.  It observed that 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.  The requests to take leave on 15 November 2005 should have been approved or refused by reference to the operational requirements of the relevant agencies.

      The proceeding will be listed for a further hearing concerning the orders that should be made having regard to the Court’s reasons for judgment.

The full text of the judgment is available on the Federal Court’s website at: www.fedcourt.gov.au