FEDERAL COURT OF AUSTRALIA
Australian Municipal, Administrative, Clerical and Services Union v Commissioner of Taxation [2022] FCA 1225
ORDERS
AUSTRALIAN MUNICIPAL, ADMINISTRATIVE, CLERICAL AND SERVICES UNION Applicant | ||
AND: | First Respondent COMMONWEALTH OF AUSTRALIA Second Respondent JEREMY GEALE (and others named in the Schedule) Third Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The proceeding be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
JAGOT J:
1. OVERVIEW
1 In this proceeding the applicant, the Australian Municipal, Administrative, Clerical and Services Union (the ASU), seeks declarations that the respondents, the Commissioner of Taxation, the Commonwealth, and certain officers of the Australian Taxation Office (the ATO), contravened various provisions of the Fair Work Act 2009 (Cth) (the FW Act) by their conduct in implementing work from home arrangements for Commonwealth employees in the ATO during the COVID-19 pandemic.
2 In particular, it is alleged that by their actions to facilitate work from home arrangements, particularly in response to the initial phase of the pandemic in early 2020, the respondents (all or some, depending on the alleged contravention) contravened: (a) cll 8.1(a)–(b) and 50 of the Australian Taxation Office (ATO) Enterprise Agreement 2017 (the EA or the Agreement) and thereby s 50 of the FW Act which provides that a person must not contravene a term of an enterprise agreement and is a civil remedy provision, (b) s 340(1) of the FW Act, by taking adverse action, or threatening to take adverse action, against ongoing and non-ongoing employees of Commonwealth covered by the EA in the ATO, and (c) s 345(1) of the FW Act, by knowingly or recklessly making false or misleading representations about workplace rights of Commonwealth employees in the ATO. The ASU seeks pecuniary penalties for the contraventions to be paid to it. The issue of penalties was deferred for separate consideration after the determination of the alleged contraventions.
3 In short, the EA included a “Working at home” provision, cl 50, which provided (amongst other things) that a formal work from home arrangement could be agreed between the ATO and an employee which was able to be terminated by agreement or on four weeks’ notice. The EA also included a provision, cl 8, which required the ATO to consult with employees for a reasonable period (which should be at least two weeks) before “developing a new policy or guideline that relates to the provisions of this Agreement” or “changing an existing policy or guideline that relates to the provisions of this Agreement, where that change is significant or substantial”. The ATO adopted a work from home response to the pandemic which sought to enable large numbers of its employees to work from home but, in so doing, the ATO did not require the arrangements to comply with cl 50 including the provision enabling termination by agreement or on four weeks’ notice. This is the genesis of all of the allegations against the respondents.
4 I conclude that the ASU’s case must be rejected for the reasons given below.
2. FACTS
5 The material facts were mostly not in dispute.
2.1 The Australian Taxation Office (ATO) Enterprise Agreement 2017
6 The EA will be explained in greater detail later in these reasons. For present purposes, it is sufficient to record that cl 50 relates to working from home. Amongst other things, cl 50 provides that a formal working at home arrangement may be entered into or varied by agreement between the ATO and an employee when it is suitable for both the employee and ATO, provided that ATO operational requirements can continue to be met. Further, a “formal working at home arrangement is to be reached that… can be terminated by agreement or on four weeks’ notice”.
2.2 The ASU
7 The ASU is an employee organisation and industrial association as defined in s 12 of the FW Act.
8 The ASU is covered by the EA and entitled to represent the industrial interests of employees covered by the EA.
2.3 The Commissioner
9 The Commissioner is the Agency Head of the ATO, a Statutory Agency, in which the employees covered by the EA are employed. Section 7 of the Public Service Act 1999 (Cth) (the PS Act) defines a “Statutory Agency” to mean a body or group of persons declared by a law of the Commonwealth to be a Statutory Agency for the purposes of that Act. By s 4A(1)–(2) of the Taxation Administration Act 1953 (Cth) (the TA Act) the “staff necessary to assist the Commissioner are to be persons engaged under the” PS Act and the “Commissioner and the APS [Australian Public Service] employees assisting the Commissioner together constitute a Statutory Agency”.
10 By s 20(1) of the PS Act, the Commissioner “on behalf of the Commonwealth, has all the rights, duties and powers of an employer in respect of APS employees in the Agency”. By s 8(1) of the TA Act, the Commissioner also may, by writing, delegate to a Deputy Commissioner or any other person all or any of the Commissioner’s powers or functions under the PS Act other than the power of delegation. The public sector provisions in s 795 of the FW Act also apply so that (with reg 6.09 and item 2 of Sch 6.3 of the Fair Work Regulations 2009 (Cth)), the Commissioner is the employing authority of the APS employees.
11 In these reasons, I use “ATO” as a shorthand to reflect the fact that there is a Statutory Agency under these arrangements.
2.4 The Commonwealth
12 The Commonwealth is a constitutionally-covered entity and a national system employer under ss 338(2)(b) and 14(1) respectively of the FW Act, and is covered by the EA.
2.5 The other respondents
13 Up to 1 August 2020, Jeremy Geale (Deputy Commissioner for Review and Dispute Resolution in the ATO) was a member of the Executive Committee of the ATO, Chief COVID Response Officer for the ATO, and chair of the ATO’s COVID-19 Steering Committee. At all material times Mr Geale held delegations from the Commissioner under cl 50 of the EA.
14 Jacqui Curtis (Chief Operating Officer (COO) of the ATO) was a member of the Executive Committee of the ATO, the co-chair of the ATO’s COVID-19 Steering Committee, Chief Operating Officer of the ATO and the Head of the APS HR Professional Stream.
15 Jeremy Moore was an Assistant Commissioner for Workplace Relations in ATO People. He reported to Bradley Chapman.
16 Mr Chapman was a Deputy Commissioner, the head of ATO People, a delegate of the Commissioner in relation to cl 50 of the EA, and a member of the ATO’s COVID-19 Steering Committee. He reported to Ms Curtis.
2.6 The ATO
17 On 30 June 2020, there were a total of 21,184 ATO employees. Of this total, 17,320 were ongoing employees, 313 were non-ongoing, and 3,551 were casual. Of the total number of ongoing employees, 223 were SES graded employees who were excluded from coverage under the EA.
2.7 The then existing policy – Working at home policy
18 The ATO had a Working at home policy at all times. This policy was made in association with cl 50 of the EA and, before 9 April 2020, said:
What you need to know
• A working at home arrangement must be approved by your manager
• This can be either an ad hoc or formal arrangement
• Work Health Safety (WHS) and security arrangements must be discussed with your manager before working at home
• Formal arrangements apply for a maximum period of 12 months and require a written agreement
• Legislation, ATO policies and the ATO Enterprise Agreement (EA) provisions continue to apply to employees working at home
• The Working at home FAQs provides a printable reference sheet for employees and managers.
19 The Working at home policy also said:
Working at home arrangement
Working at home is a provision in the EA, where employees can arrange to work at home. The working at home arrangement has to be suitable for you and the ATO. Working at home can be either an ad hoc or formal arrangement.
This policy does not apply to contingent workers/contractors.
Eligibility
To be eligible to enter into a working from home arrangement, you must be an ongoing or non-ongoing employee who is covered by the EA.
Eligibility to enter into an arrangement is subject to ATO operational requirements continuing to be met.
Irregular or intermittent employees who wish to enter into a flexible work arrangement should refer to the Flexible work practices overview for more information.
Formal working at home arrangements
Applying for a formal arrangement to work at home
The EA provides for formal working at home arrangements where the employee and their manager agree on a regular pattern of days/hours each week to be worked at home.
The instructions below can be used for new applications or renewing existing applications.
What you need to do
1. Discuss your proposal with your manager
2. Submit the Working at home agreement to your manager for approval via email. The application form covers:
• the period of the arrangement – a maximum of 12 months at a time
• written agreement on the matters discussed with your manager, as prescribed in the EA.
3. Any other arrangements that need to be agreed to facilitate working at home can also be recorded in the application form or in another suitable manner – for example, by email or in Compass
4. Once the application is completed and approved by your manager, submit the form to the People Helpline via People Connect (instructions below). You and your manager should keep copies. No further action is required by the manager once the request has been submitted.
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Approval of your arrangement will be subject to operational requirements. This includes an assessment of your proposal against both individual and team workloads.
If your application is not approved, your manager will discuss the reasons with you, then provide you with written confirmation.
If you do not agree with the decision, you should try to resolve your concerns by discussing them with your manager. Review procedures apply to these decisions.
Considering a formal working at home application
Managers and above hold the delegation to make decisions about working at home. If the employee:
• is on a graduated return to work, their case manager must be consulted
• provides satisfactory documentation advising working at home arrangements should be implemented for medical reasons, contact the People Helpline for advice about engaging/seeking support from ATO People (PST/Working Well team).
When approached by an employee to enter into a formal working at home arrangement, managers must:
1. Consider the impact of the arrangement against the:
• need to continue to meet ATO operational requirements
• effect the arrangement will have on individual workloads and the team as a whole
• appropriateness of the employee’s role
• employee’s performance and conduct
• availability of equipment – the employee already has the necessary IT equipment at their home, or are eligible for ATO-issued equipment
• availability of non-IT equipment – Refer to Provision of equipment for non IT equipment considerations
• employee’s personal circumstances and need
2. Discuss with the employee, and seek agreement on:
• security requirements
• health and safety requirements
• the provision of equipment
• ongoing communication and contact with other team members
• access by management to the home site (in the event this becomes necessary)
• amounts of time to be spent at home and the office
• the method of recording working time and of measuring work performance
• access to training and development opportunities.
3. Record the agreement in the working at home agreement
4. Make a decision following the Good decision-making model.
If you decide not to approve an application, it must be for a valid business reason related to clause 50 of the EA and/or this policy. You must:
• discuss your decision with the employee, and
• follow up with reasons in writing.
Working at home should not be approved as a substitute for regular caring arrangements.
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Terminating an arrangement
Your arrangement may be terminated:
• at any time, by mutual agreement
• by either you or your manager giving four weeks’ notice because of:
changing operational requirements, and/or
inefficiency or ineffectiveness of the arrangement
• without notice, if you fail to comply with agreed working at home arrangements.
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Suspending an arrangement
An arrangement may be suspended on a short-term basis due to operational requirements. If this is necessary:
• the ATO will give you as much notice as possible (at least one week’s notice, unless you agree to less)
• any hardship will be taken into account in the suspension decision
• the suspension will not exceed eight weeks, unless you agree to a longer period
• your previous arrangements will be reinstated at the end of the suspension.
...
Work health and safety considerations
The below checklist will assist you and your manager to discuss health and safety issues related to working at home.
Both ad hoc and formal applications require written agreement that these requirements are met.
Work health and safety checklist
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Ad hoc working at home arrangements
The EA provides for ad hoc periods of working at home for short periods to be approved on a case-by-case basis. This may include working at home while suffering from a minor illness or injury, or providing minor care for another person, but not if Personal leave is more appropriate.
Working at home may be considered ad hoc if not undertaken on a regular basis and there is no formal agreement by the ATO to work at home on a defined or a set number of days.
Ad hoc arrangements require manager approval.
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20 The Working at home policy associated with cl 50 of the EA also contained a section as follows (emphasis added):
Responsibilities
Employee responsibilities
Relevant legislation, the EA, and ATO policies continue to apply to you when you are working at home.
When working at home, you are required to:
• comply with your working at home arrangement
• advise your manager of any change in your circumstances relevant to your working at home arrangement
• record your attendance and absences as required in TMS and mySAP Services and/or any other recording system agreed with your manager. If you want to, you can select the ‘home’ work option in TMS for the hours worked at home
• comply with relevant leave provisions, including the arrangements for notifying an unscheduled absence
• be accountable for your work performance and productivity
• secure ATO information and assets
• maintain regular and open communication with your manager and colleagues
• attend the workplace when requested by your manager.
2.8 The COVID-19 pandemic
21 There was no issue between the parties that, by March 2020, Australia was impacted by the COVID-19 pandemic.
2.8.1 All staff communications
22 The ATO initiated pandemic communication emails to all staff including the following on 17 March 2020:
COVID-19 – latest update
All staff
We are writing to update you on the various measures the ATO is deploying to protect your welfare and your fellow staff, and ensure an effective response to the COVID-19 outbreak.
We would ask that you please read the information below, and stay informed of the latest information and developments during this extraordinary and disruptive time.
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Advice on meetings and gatherings
We are implementing the following measures:
• Physical meetings of more than 10 people will require managerial approval to proceed.
• Avoid having any non-essential visitors to ATO sites.
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We recommend all staff refer to social distancing or health alert on the Department of Health website for more information.
Streamlining reporting to People Helpline
We have two new forms in People Connect for managers to report on any staff who are self-isolating or have a confirmed COVID-19 test. At this point we are fortunate that we have no confirmed cases of COVID-19 amongst ATO staff, but we are taking this step to ensure we are prepared moving forward.
You can find more information on the process in our FAQs.
Advice on working from home arrangements
We are investigating various solutions to ensure working from home arrangements in the current situation are appropriate and able to support a larger number of staff.
A pilot is about to commence on a technical solution to expand our ability to work from home. At this time, working from home is only available to people who are at most risk, are required to self-isolate, have caring responsibilities, who have approved working from home arrangements or those participating in the pilot. This position is being reviewed daily as we test new technology to support staff to work from home.
23 On 18 March 2020, the all staff email included (emphasis in original):
COVID-19 – working from home arrangements and welfare of staff most at risk
All staff
Working from home
As the COVID-19 outbreak continues to unfold, the safety of all ATO employees will continue to be our utmost priority and we are working to implement practical and sensible solutions.
We are currently running a pilot of an IT solution enabling staff to work from home. An initial phase of the trial involving around 500 staff was rolled out today. We will be progressively expanding this in the coming days.
To assist in the expansion of this pilot it is essential that you do not turn off your computer when you leave the office to go home.
As the pilot expands we will contact you with further instructions.
In the meantime, staff who are not in critical roles and do not have working from home arrangements in place should not be using the ATO’s Virtual Desktop Platform (VDP).
Identifying staff most at risk
While there are currently limits on the number of people we can accommodate working from home, today we are calling on any staff who may fall into a higher risk category to identify themselves to their managers.
Where possible and appropriate, we are encouraging those in higher risk categories to explore options to work from home, regardless of whether they currently have remote access.
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Advice for managers
As always, the health and welfare of your team members is paramount and we encourage you to take an active role in assisting staff at higher risk from COVID-19.
We are continuing to investigate various solutions to expand the capacity of our working from home connectivity solutions and hope to provide broader access in the near future.
Before implementing a work from home arrangement you will need to ensure you have recorded important information about the agreed arrangements. At a minimum, this will include:
• A contact number (preferably mobile) and email address for the staff member
• The address where the staff member is working from
• Any health or safety issues which might arise from working at home
• Working hours
• What work will be conducted and deadlines for delivery
• Established ‘check-in’ intervals.
24 On 20 March 2020, the all staff email included:
Working from home survey
We are asking all staff to complete this Working from home ATO staff survey by the end of today (Friday, 20 March 2020), to understand your access to personal devices.
The survey takes approximately one minute to complete.
Your participation will help us deliver a range of working from home solutions as quickly as possible. Your responses will be kept anonymous and only aggregated data will be reported.
Working from home requirements
We know that working from home may be an uncommon situation for some staff.
We would like to remind you that staff working remotely have the same obligations under the Public Service Act and ATO Enterprise Agreement 2017 as they do when in the office. The APS Values, Employment Principles and Code of Conduct continue to apply as usual.
You will also need to record your actual times of commencing and ceasing duty in TMS (and/or any other required recording system for your business area) as you usually would. Unless agreed otherwise with your manager your regular work hours will still be within bandwidth (usually 7am to 7pm).
And of course, all relevant leave provisions, including notifying unplanned leave and having pre-approval for planned leave, will still apply. We ask all staff to process leave requests as early as possible (leave applications can be applied for and processed using the staff app).
If you have any queries regarding your individual requirements when working from home, please speak with your manager.
25 On 23 March 2020, the all staff email was sent from Mr Geale and included a video and an associated transcript. The email said:
As part of my role as one of the leads of our COVID-19 response team, I have recorded a video update (transcript available at the link) to share the latest advice with you.
In the video I cover the recent developments following the announcements last night from the ACT, NSW and Victorian governments, and talk about our current priorities.
It’s possible that some staff will be asked to work from home at some point and we are preparing for that possibility now.
Please familiarise yourself with the new Working from home guide to help you get ready for this possibility.
There will be an all staff email coming soon with more information about the Remote Desktop Access (RDA) solution to allow more staff to work from home, including the details of a YamJam where you can ask your questions about RDA and working from home. At this time, we are not asking staff to work from home using the new solution unless you are already involved in one of the pilots that we are running.
We will continue to update you throughout the day. In the meantime you can find the latest news and resources on myATO at COVID-19, and on Yammer at Live staff updates.
Thank you all for your patience and understanding as the situation continues to evolve.
This information is current at 23 March 2020.
26 On 25 March 2020, the all staff email said:
We are committed to keeping you up-to-date with the latest advice and information regarding the COVID-19 outbreak and the ATO’s response.
The ATO provides an essential service and our ability to continue to support our nation at this critical time depends upon your ongoing support and attendance.
Advice from the Prime Minister
As many of you will have seen, last night the Prime Minister confirmed that all public servants provide essential services. Further details of his announcement can be found here. At this time we are all fortunate enough to have jobs and the opportunity to help our nation at a time at which it needs us most. We can provide the support our community needs, but it is going to require the contribution of absolutely everyone. The contribution of our front line staff has never been more important. You are the face and voice of the ATO.
The Prime Minister also announced that if you can work from home you should.
Over the past two weeks we have developed and tested solutions aimed at enabling the majority of our employees to work from home, including Service Delivery staff in call centres or performing processing work.
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Preparations to work from home
Today, business lines will be working with the staff, using the Working From Home Guide and guiding principles below, to identify staff who are immediately able to perform work from home. There will be many staff who are not yet in a position to work from home, however in the near future we will be taking steps to equip these people with the technology and resources to enable them to work from home. This will include the final testing of the telephony pilot and roll-out of equipment to enable call centre staff to work from home.
We know not everyone has the technology at home to enable them to work from home immediately. We have reserves of equipment and more on order to arrive later this week. Based on the questionnaires people have completed we will commence allocating this equipment, initially giving priority to people in critical roles, including our front-line staff.
For people who need to be in the office, or do not wish to work from home, we will be continuing to make that as safe and easy as possible. We will ensure provisions to support social distancing, cleaning and hygiene are well maintained, and we will look to provide support such as parking to minimise the use of public transport.
As we roll out working from home there are going to be hiccups and it is going to take us time to learn to adapt to this new way of working. We ask for patience and perseverance at this time. Do not give up, as our nation depends on your service at this time.
Guiding principles
• There is currently no directive for staff to work from home, however we are encouraging staff to work from home, where they can adequately perform their work from home. Working from home is a voluntary arrangement. Separate business continuity arrangements apply if the workplace is unavailable.
• During the COVID-19 pandemic response, where business can be delivered effectively through work from home arrangements, this should be supported where the Work From Home policy requirements can be met as it enables greater social distancing of those required to work in the office, and reduced demand on workplace resources.
• Where a whole business unit cannot support working from home arrangements due to operational requirements, this will be communicated to affected staff.
• Decisions should consider potential future employee shifts/ reallocation that may be required to support priority ATO deliverables.
27 A further all staff email on 25 March 2020 from the Commissioner said:
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Following further announcements from the Prime Minister yesterday, this morning you would have seen an email advising you to prepare for the possibility of working from home.
We are, without a doubt, an essential service, and the Prime Minister confirmed this in his address yesterday. But we also need to be flexible and adaptable, and adjust our ways of working to ensure we can maintain services for our clients. We continue to deliver the Government’s economic stimulus measures, and meeting our core purpose of administering the tax and super systems also remains of crucial importance.
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In his address the Prime Minister encouraged Australians to work from home where possible. In line with this advice we are now looking to transition a greater number of staff to working from home arrangements. This follows progress of a number of IT solutions we have been working on, including the Remote Desktop Access pilot and enable Service Delivery staff to work from home.
Your health and that of your colleagues is, of course, of paramount importance. We are making every effort to support those who will transition to working from home, and also those remaining in the office.
The important work of the ATO to ensure our society keeps functioning will not stop.
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28 All staff communications continued as required.
29 By July 2020, the ATO’s all staff communication informed employees that, amongst other things:
When site restrictions transition to level 1 and is open to all staff, temporary COVID-19 working from home arrangements will cease. To work at home after this time (for any portion of your working hours) you may request a formal working at home agreement as per clause 50 of our Enterprise Agreement (EA).
2.8.2 Executive Committee and COVID-19 Response Committee
30 In the background to these all staff communications, the Executive Committee of the ATO had been meeting about “Coronavirus: Government & ATO Pandemic Plan update” since at least 13 March 2020.
31 The minutes of the ATO Executive Committee meeting on 13 March 2020 record:
Staffing impacts
1. To date there have been no confirmed cases of Coronavirus within the ATO. 30 ATO staff have been required to self-isolate…
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3. Generally feedback indicated that staff were calm, however this has been impacted by the World Health Organisation’s release of the pandemic rating yesterday…
..
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Agenda item 3: Whole of Government (WoG)
32. The APS-wide COO committee is coordinating a whole of government response and reporting back to the Secretaries’ Working Group. The committee is coordinating media and communications, with daily circulars and a portal to be established through the APSC.
32 The minutes of the ATO Executive Committee meeting on 16 March 2020 record:
COVID19 ATO Preparations
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2. National COVID19 cases expected to escalate significantly this week.
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Key focus areas
6. Business continuity plans, health and welfare of staff, resourcing need to be in place and actionable and people are clear about who works from home. This includes prioritising who has access to the IT working from home, key roles and acting plans for illness and isolation.
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Remote working
9. Capacity to enable 1400 concurrent vdp accesses…
10. Alex Adams working on RDP – remote desktop platform, testing this and looking promising and will be unconstrained in terms of the numbers. Test will be undertaken asap on scale capacity.
11. Further work needed on identifying priority work and who are the priority people that need access to be able to work in this flexible way.
33 The ATO COVID19 Response Committee meeting minutes of 17 March 2020 record:
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2. The Committee discussed the concerns their staff had raised regarding COVID19 and the ATO’s response, noting:
• there was an increasing trend of staff self-selecting to work from home (WFH) even when they are not sick, which is putting pressure on the ATO’s Virtual Digital Platform (VDP) licences
• work is underway to identify the priority work and people across the ATO so that the limited VDP licences can be distributed to them
• staff have differing circumstances that might be influencing their decisions to stay at home, e.g. they are a carer for a vulnerable individual and want to mitigate their risks
• staff concerns included
• the inability to control the cleanliness of travel to and from work
• being forced into close proximity to other individuals in site elevators…
• what will be expected of them if schools close and they are required to stay home for child care
• being ostracised by other staff if they come to work whilst they are suffering from hay fever or other non-COVID19 related sinus issues. This would need to be addressed in the staff FAQs.
34 The ATO COVID19 Response Committee meeting minutes of 18 March 2020 record:
1. Chair Jeremy Geale thanked all the attendees noting the priorities for the 18 march included:
• determine a viable working from home (WFH) solution, noting:
• the IT solution pilots were underway…
35 The ATO COVID19 Response Committee meeting minutes of 19 March 2020 record:
1. Chair Jeremy Geale thanked all the attendees noting the priorities for the 19 March included:
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• continued exploration of support options for staff to work from home (WFH) e.g. calling retailers in regards to purchasing laptops/desktops for staff who not have technology at home
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• scheduling workshops to explore:
• catastrophic scenarios e.g. continuing to provide essential services if the ATO had to implement a lock down…
36 The minutes of the ATO Executive Committee meeting of 19 March 2020 record:
Remote working
1. The trial of the remote desktop solution to support working from home will be expanded to another 800–1000 staff to test at scale
2. 1650 additional laptops have been procured as a solution for staff that do not have access to a home device; the total number of ATO-owned devices will be 6,000.
3. This will significantly increase the ATO’s capacity to maintain critical functions.
4. The gap between the number of people who can currently work from home with their own technology and those that will require ATO technology will be needed; this view should also include peripherals.
37 The ATO COVID19 Steering Committee meeting minutes of 20 March 2020 record:
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• Noted:
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• the IT WFH solution is being extended again today
6. A/g Chief Finance Officer (CFO) Janine Bristow advised her team:
• have sourced 1,600 laptops that could be redistributed to staff who do not have their own device
• are sourcing computer monitors and exploring the possibility of sourcing keyboards/mice if required.
7. Chair Geale noted there would be an all survey issued this morning (20 March) that would aid in identifying the staff who have the technology capability to WFH and who would require ATO resources to enable this.
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8. DC David Diment advised:
• yesterday (19 March) a workshop was held to regarding [sic] the scenario of the Government directing individuals to not go into work being issued over the weekend (21/22 March)
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WFH – Staff Expectations confirmation and communications
Deputy Commissioner Brad Chapman to ensure staff are made aware of the expectations of them relating to the WFH including awareness that:
• it is a short-term response to address the unprecedented situation and not an ongoing new standard
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11. COO Curtis advised:
• the IDC COO group:
• would be exploring today (20 March) whether agencies can direct staff to either come to work or WFH, noting members would be advised of the outcomes of this meeting
• continue to explore a variety of ongoing issues specifically how to address privacy and WFH
• a COO meeting for the Treasury portfolio was meeting today (20 March) and an update would be provide [sic] to members.
38 The minutes of the ATO Executive Committee meeting of 23 March 2020 record:
Remote working
1. Piloting of the Remote Desktop solution is continuing.
2. All staff have received the working from home pack.
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COO committee/APSC Update
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7. In NSW and the ACT, the APS is considered essential services, school will support attendance during school days …
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Staff
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12. A video was sent to staff in the ACT, NSW and Victoria, built around themes, being the ATO’s first priority of health, safety and well-being of our staff, the continued provision of essential services to the community, and preparing staff to work from home.
39 The minutes of the ATO COVID19 Response Committee meeting of 24 March 2020 record:
1. Chair Jeremy Geale thanked everyone for the work they have been doing and noted:
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• staff should be focusing on determining how ATO will ensure the running of its essential services over the coming week rather than trying to look several months ahead
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• Today’s (24 March) focus was on:
• the working from home (WFH) pilot and gathering materials, support and guidance to assist this
• clarification of the ATO’s critical functions list
• identifying the capacity for staff to be redeployed across the ATO or the broader Australian Public Service (APS)
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• 2,000 laptops and 2,000 monitors have been sourced and his team are working with Business Continuity Management (BCM) to ensure they are allocated to those in critical functions
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4. Chair Geale advised:
• that Assistant Commissioner (AC) Misha Kaur was leading a staff questionnaire that aims to identify the additional IT needs that would enable WFH for staff…
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WFH Solution messages to staff – ATO policy to continue to come to work
Deputy Commissioner Brad Chapman to work with Assistant Commissioner Katherine Philp to develop some all staff messages that would:
• restate the ATO policy position for staff to come to work (unless they have a WFH arrangement in place)
• note that there has not been a Governmental Directive to WFH.
40 The minutes of the ATO Executive Committee meeting of 24 March 2020 record:
Remote working
1. Scaling the pilot of the Remote Desktop continuing. Focus is on getting frontline staff WFH capability and capacity.
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COO committee/APSC Update
7. Agencies need to be consistent in their application of WFH.
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41 The ATO Executive Committee and COVID19 Response Committee continued to meet as required.
2.8.3 Internal ATO communications
42 Internal ATO communications include an email of 20 March 2020 to certain ATO officers including Mr Chapman and Christopher Gyetvay (Assistant Commissioner, Staff Experience in the ATO), (and thereafter Mr Moore) saying:
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Background
As you may be aware, Jeremy Geale has requested myself and David Diment to coordinate and oversee a range of actions related to COVID-19 as it affects the ATO workforce and increasing our capacity to operate remotely.
A key action is the development of a central “Work From Home Guide” suite of materials that will enable people to work remotely and maintain productivity and the ability to deliver quality outcomes to our clients. This will be available for all ATO staff, including a component specific to the Contact Centre.
This email is to keep you informed of this, including key people from your teams we are working with on this.
Current Progress
We are currently consolidating this work to develop a user-friendly pack containing tools and guidance to support all our staff to successfully and productively work from home that will be completed by COB Monday 23 March. This will provide guidance for staff in all business lines, including more specialised advice for those working in contact centres as well as managers.
43 On 24 March 2020, Mr Chapman (and other ATO officers) was sent the (then) current version of the WFH Guide and an email saying:
Guiding Principles:
• There is currently no directive for staff to work from home. Working from home is a voluntary arrangement. Separate business continuity arrangements apply if the workplace is unavailable.
• During the Covid-19 pandemic response, where business can be delivered effectively through work from home arrangements, this should be supported where the Work From Home policy requirements can be met (as it enables greater social distancing of those required to work in the office, and reduced demand on workplace resources)
• Where a whole business unit cannot support working from arrangements due to operational requirements, this will be communicated to affected staff.
• Decisions should consider potential future employee shifts/ reallocation that may be required to support priority ATO deliverables.
Changes to our current FAQs (and adjustments to relevant supporting docs) as follows:
Our working from home guide will enable you to have a discussion with your manager to set you up to work from home during the Covid-19 pandemic response. To be clear, there is currently no directive for staff to work from home. The ATO provides an essential service and our ability to continue to support our nation at this critical time depends upon your ongoing support and attendance.
Where business can be delivered effectively through interim work from home arrangements, this should be supported where individuals meet policy requirements. Managers should consider (a) where current business processes can be supported and can be delivered effectively, and (b) employee requirements as outlined in the working from home guide (including access to the equipment required to do your job). ATO employees must not work from home without prior approval. Working from home arrangements may include a requirement to attend some days in the office, and/or (where required) the application of relevant leave (e.g. partial caring requirements). Arrangements may be reviewed at manager discretion or where business requirements change.
Discussions and approved arrangements should be made/ reviewed as a priority for employees who are:
- at most risk
- required to self-isolate
- unable to attend work due to caring responsibilities
- who have prior approved working from home arrangements.
If these circumstances apply to you, discuss your circumstances with your manager as soon as practicable.
Where the above requirements do not apply and employees wish to work from home, the working from home guide should be used for discussions and preparations with your manager. It is expected that the interim arrangements you put in place to work from home should allow you to be productive, with some reasonable adjustment as required. Where this is not possible, managers have discretion to not agree to work from home requests.
All employees should follow the work from home guide to ensure they are prepared for an unexpected office closure.
44 Mr Chapman sent the following email to Mr Geale and Ms Curtis on 24 March 2020:
…
As you know we are getting lots of questions regarding whether people should be working from home now. Below are some principles that my team developed to try and clarify what we want people to do regarding remote working in the immediate term that we hope will clarify things for our managers[.] Are you comfortable with the principles and tone…
45 Mr Geale and Ms Curtis agreed with the proposed principles and tone also on 24 March 2020.
46 In another email on 24 March 2020, Mr Chapman wrote to Mr Moore, Mr Gyetvay, Anne Blaseotto (Director of Employee Relations at the ATO, who reported to Mr Moore) and Craig Skinner (Director of Workplace Adjustment and Remuneration at the ATO) the following:
Thanks – can you also confirm whether we believe these new WFH checklists that we’re getting everyone to do would be considered a formal working from home agreement? And what we may have in them to clarify that they do not constitute that.
47 Mr Gyetvay responded on 24 March 2020 saying:
I think we need to review all comms and the WFH guide to include wording similar to the email to Jeremy Geale today – i.e. specifying that these apply ‘During the period of the COVID‐19 response’ and are ‘approved interim WFH arrangements’– i.e. they are NOT formal work from home agreements.
…
48 Mr Skinner responded on 24 March 2020 saying:
John and I will review this in detail to ensure we have it covered.
Our initial thoughts are:
• WFH arrangements are still voluntary.
• If sites are closed, the APSC circular provides the guidance required for people who cannot WFH.
• The ATO does not have to agree with an agreement, even if it is could be considered a formal agreement.
• The EA does not specify that we must cover expenses – the delegate may do so.
• It is clearly outlined in the COVID19 response document that these are exceptional circumstances.
• The purpose of the checklist is to enable identification of minimum safety and security matters and it’s clear that a positive response for each item is not required for people to WFH.
• We may need to adjust some language, and may need further advice on the requirements of clause 50 of the EA.
49 Mr Gyetvay emailed Mr Skinner, Ms Blaseotto and others on 24 March 2020 saying:
Below is a proposed change to the application of the WFH approach (we don’’t have formal ATO Exec endorsement yet, but indications below are positive).
Note that we would like to update all COVID-19 comms, FAQs, WFH guide etc to specify/ label this WFH advice to apply ‘during the covid-19 pandemic response’, and as ‘approved interim WFH arrangements’– and not refer to them as formal working from home arrangements. Could you please look at your respective areas of accountability and adjust accordingly (but maintaining alignment with each other).
There are also several aspects of the changed FAQ wording below that are likely to need related updates – e.g:
…
• ATO employees must not work from home without prior approval. – there is some confusion at present that if people participated in the RDA pilots – they can just work from home as required/ desired. Others are just assuming they can work from home.
• Working from home arrangements may include a requirement to attend some days in the office, and/or (where required) the application of relevant leave (e.g. partial caring requirements). Note [sic] sure if our guides are as overt about this. We probably also need some clarification of the carers leave instructions – e.g. we used to say if you are caring you are not working, but depending on the age of kids if their school is closed – we should clarify that partial misc leave can apply for the hours they can’t work (not all or nothing, as negotiated with their manager).
• Arrangements may be reviewed at manager discretion or where business requirements change – This is one of the areas that would differ to the EA ‘formal working from home agreement’ clauses – hence we need to position it differently as a response to the crisis.
• It is expected that the interim arrangements you put in place to work from home should allow you to be productive, with some reasonable adjustment as required. Where this is not possible, managers have discretion to not agree to work from home requests. – This is intended for voluntary arrangements where they have no barrier to attending the workplace, to indicate that large reasonable adjustments are unlikely to be approved unless in business interests, including significantly reduced productivity and/or expensive ergo equipment being provided. May need to crosscheck against other documents for consistency.
Can you please proceed with preparing for these (and any other foreseeable) changes to our materials, ready for release tomorrow including an updated FAQ and possibly mention in the all staff update.
50 On 25 March 2020, Mr Moore emailed Mr Skinner, Mr Gyetvay, Mr Chapman and Ms Blaseotto saying:
Only other thoughts overnight are:
• Do we want to consider formally saying we are giving notice to cancel all existing formal WFH arrangements which are in place and expect new ones to be put in place using the interim COVID‐19 arrangements.
• Do we want to weave into the messaging that if staff are unable to work at home we will look for opportunities to provide meaningful work in other agencies. In order to make staff understand that if they are unable or unwilling to work at home miscellaneous leave is not guaranteed)
51 That same day, Mr Skinner responded to Mr Moore’s email saying:
I am going to, as a priority this morning:
• Update the opening information on the checklist to include key points from my and your emails below, with an emphasis that it is about understanding what needs to occur for safe and secure working from home, and determine if other working arrangements are required (as per APSC circular)
• Remove the word agreement from the Manager Confirmation and agreement
• Provide some key messages/language for Chris G’s team and Comms can ensure are throughout the documents
• Be clear it is only required to be kept by manager and employee (not submitted).
2.8.4 Work from Home (WFH) Guide
52 On 23 March 2020, the Commissioner published to employees a “Working from Home COVID-19 Response” guide (the WFH Guide). This Guide said:
These are exceptional circumstances.
We are experiencing an unprecedented period of disruption due to COVID-19. But our role in the community remains critical to maintaining economic and social wellbeing of Australians.
It’s important that our people are able to serve the public, while practicing the recommended social distancing.
This guide is intended to help you transition into a work from home situation in order to continue to serve the public.
…
Rapid Response Work from home approach
Be prepared for rapid response in case of an immediate site shutdown
…
What to do in case of an immediate site shutdown
It’s possible that sites may be shut down at short notice.
Use this decision tree to help guide your next steps in setting up a work from home arrangement quickly.
Everyone will need to pull together in an emergency. You can help by setting up as best you can to be productive, secure and safe; and by staying connected to the latest information on myATO.
…
Rapid Response
Work From Home Checklist
…
COVID-19
Work from home approach
(when there is not an immediate shut down)
Relevant in situations when there is not an immediate site shut down. The following pages help you prepare and set up to work from home during the COVID-19 disruption.
…
Working from home when your site is still open
During our COVID-19 response, work from home agreements may be possible for all or part of your regular hours depending on available equipment and operational priorities.
…
Employee Responsibilities
Relevant legislation, the EA, and ATO policies continue to apply to you when you are working at home.
When working at home, you are required to:
• Comply with your working at home arrangement.
• Advise you manager of any change in your circumstances relevant to your working at home arrangement.
• Record your attendance and absences as required in TMS and mySAP Services and/or any other recording system agreed with your manager. If you want to, you can select the ‘home’ work option in TMS for the hours worked at home.
• Comply with relevant leave provisions, including the arrangements for notifying an unscheduled absence.
• Be accountable for your work performance and productivity.
• Secure ATO information and assets.
• Maintain regular and open communication with your manager and colleagues.
• Attend the workplace when requested by your manager where appropriate and possible to do so.
COVID-19 Work From Home Checklist & Agreement
*Not every item in the checklist needs a positive response to agree to a working from home arrangement. If a response is ‘no’, discuss with your manger [sic] how the issue can be sensibly mitigated or managed.
…
Manager Confirmation & Agreement
Manager Confirmation
Have you discussed the checklist details with the employee?
Are you satisfied that the employee can maintain productivity, security and health and safety working at home? Please provide any relevant comments below.
53 Subsequent versions of the WFH Guide issued from 2 April 2020 contained this:
These are exceptional circumstances
We are experiencing an unprecedented period of disruption due to COVID-19. But our role in the community remains critical to maintaining economic and social wellbeing of Australians.
It’s important that we are able to serve the public, while practicing the recommended social distancing.
If you can work from home, you should do so. This guide is intended to help you transition into a work from home situation in order to continue to serve the public. Working from home during the COVID-19 response is temporary.
Interim working from home arrangements confirmed during the COVID-19 response supersede any existing working from home agreements.
If you are unable to work from home during the COVID-19 response, discuss with your manager what arrangements would need to be made to enable you to do so.
If you remain unable to work from home during the COVID-19 response and your site is not open, discuss your working arrangements with your manager.
54 They also contained this restated section:
COVID-19 work from home checklist
This checklist guides you and your manager to consider suitable productivity, security and safety matters for you to work from home during the COVID-19 response.
….
Not every item in the checklist needs a positive response to work from home. Discuss with your manager how any issues can be sensibly mitigated or managed.
A copy of the completed checklist and confirmation should be kept by the manager and employee. They do not need to be submitted to the People Helpline.
…
55 The 9 April 2020 version of the WFH Guide said:
Be prepared for rapid response in case of an immediate site shutdown
All employees who are able to work from home should do so.
Use the COVID-19 Work from home checklist to discuss arrangements with your manager …
56 The 6 July 2020 version of the WFH Guide said:
Can you perform your work at home?
As the ATO implements our COVID-19 safe workplace transition plan, we will be welcoming more staff to return to the office when your site eases restrictions. When a site changes its restriction level, we will let you know.
…
When site restrictions transition to level 1 and is open to all staff, temporary COVID-19 working from home arrangements will cease. To work at home after this time (for any portion of your working hours) you may request a formal working at home agreement as per clause 50 of our Enterprise Agreement.
57 Versions of this WFH Guide were issued thereafter between 24 March 2020 and 14 December 2020.
2.9 Dealings with the ASU
58 On 3 March 2020, Jeffrey Lapidos (Branch Secretary of the Taxation Officers’ Branch of the ASU) and Ms Curtis exchanged communications. Ms Curtis’s email said that the ATO was making plans to deal with the pandemic to enable staff to work safely including from home where possible and to reduce risks.
59 On 11 March 2020, Mr Chapman emailed Mr Lapidos saying that the ATO’s response to the pandemic would evolve and be guided by the latest advice from the Department of Health and the expectations of the government. The email said that the ATO was currently able to support a proportion of its employees working from home and would continue to allocate the available VDP (virtual desktop platform) licences to those who needed them most (that is, to enable working from home). The email thanked Mr Lapidos for his concern and said that the ATO would have further updates shortly that could be discussed at the National Consultative Forum (the NCF).
60 On 13 March 2020, Ms Blaseotto sent an email to Mr Lapidos with the subject heading “Meetings re COVID-19” to invite the ASU to set up twice weekly meetings with Mr Moore and Ms Blaseotto. The email said:
We would like to set up meetings with you twice weekly to provide you updates on our response to the COVID-19 pandemic. I was thinking that potentially Tuesdays and Thursdays might work subject to your availability – unless you want one on a Friday to round up the week.
Can you please let me know if you would like twice weekly updates and what days/times would suit you.
61 Ms Blaseotto sent the same email to the Community and Public Sector Union (the CPSU). The ASU did not respond. The CPSU apparently did respond and twice weekly meetings with the CPSU started on 17 March 2020.
62 On 16 March 2020, Mr Lapidos sent an email to the Commissioner with the subject heading “Concern at inadequate response to pandemic”. The email said that the ATO “has not complied with its obligations under the Work Health and Safety Act 2011 in response to the COVID-19 pandemic”. The email suggested discussions, perhaps with Deputy Commissioner David Diment, to resolve the ASU’s concerns. The email also said:
Rapid expansion of working from home
The ATO needs to make working from home available, in the first instance and as a matter of priority, at the request of those employees who are most vulnerable to the virus because of their health, pregnancy or age or if they have members of their immediate family or for whom they have a caring responsibility, who are vulnerable. The ATO should then make available working from home arrangements to other employees who request this. The reduced numbers of staff at work will reduce the risk of transmission of the virus at work, on public transport and other common areas that ATO staff are likely to frequent.
63 Ms Blaseotto responded on the same day, 16 March 2020, referring to her 13 March 2020 email to which she had received no response and asking if Mr Lapidos could please let her know when he was available to meet and Ms Blaseotto would co-ordinate the meeting.
64 On 17 March 2020, Mr Chapman also responded to Mr Lapidos. This email said, in part:
You have raised a number of issues in your letter and staff emails which we are considering and would be happy to discuss with you at the twice-weekly meetings that we have been attempting to arrange with you since last week. I agree some of your suggestions have merit… Regular meetings with Assistant Commissioner Jeremy Moore, who is a key part of our policy development and business continuity meetings, are a key and productive way for you to provide input that is more beneficial to your members and ATO staff generally.
Earlier today Jeremy met with the CPSU, who have engaged with our offer. I would suggest that, if you avail yourself of similar opportunities, they may alleviate some of your misconceptions and place you in a better [position] to communicate to your members with greater accuracy.
65 On 18 March 2020, Ms Blaseotto emailed Mr Lapidos the pandemic information and guidance that the ATO had distributed to employees. The email said:
Attached for your information are the communications that have [been] issued this week to staff and managers about COVID-19. Also attached are the key documents that are linked in the communications.
Please let me know if you have any questions or would like to discuss the ATO response to COVID-19.
66 On Sunday 22 March 2020, Mr Moore emailed Mr Lapidos saying:
Sorry about the weekend email however, you would be aware of the announcements today in regards to widespread shutdowns, particularly in NSW and Victoria.
These measures will obviously impact several ATO sites.
We are currently planning to ensure that we have as few staff in ATO sites as possible on Tuesday morning and moving forward.
We want to be in a [position] to announce these to staff tomorrow morning and were keen to alert you to these plans.
Can you please advise if you are free to attend a telephone hook-up with Jeremy Geale and Brad Chapman, this evening, and I will organise the appropriate invitation. Can you please also advise anyone else you would like included in the invitation.
67 On 23 March 2020, Ms Blaseotto emailed Mr Lapidos the latest communications to employees and the WFH Guide. She emailed him again later that day with a further communication to employees.
68 On 23 March 2020, Mr Lapidos circulated a document to ASU members from the ATO saying:
The ATO asked the ASU to a telephone conference with Jeremy Geale (co-chair of COVID Response Committee) and Brad Chapman of ATO People at 7.45pm yesterday evening, Sunday, 22 March 2020. The reason we were given was the ATO wanted to have as few staff in ATO sites because of the announcements by State Governments in NSW and Victoria yesterday afternoon. The ATO wanted to alert us to their plans. Jeremy Geale confirmed they had a phone conference with the CPSU before us. This discussion occurred before the Prime Minister’s announcements late yesterday evening.
Brad Chapman introduced the discussion by saying the ASU would be aware that the ATO has been preparing its response to the pandemic to make sure it can manage the health and safety of its staff.
Jeremy Geale’s briefing
Jeremey [sic] Geale commenced by briefing us about what is likely to happen today and asked for our views in response. Jeremy referred to the NSW, Victorian and ACT Governments yesterday limiting non-essential services. The ATO intends to have a significant proportion of its workforce working from home from Tuesday. The Office is working on what it considers are ‘essential services’. The ATO had sent text messages to all staff to come to work today, unless they have existing work from home arrangements or are on leave. Today is to be spent making arrangements for staff to work from home. Jeremy and/or Jacqui Curtis will provide a video message to all staff about the ATO’s plans, with advice about what to do, what working from home entails, and what equipment you should take home with you. …
…
ASU’s response to Jeremy Geale
The ASU told Jeremy we were aware of the updates the ATO had been issuing to its staff. We received them from our members before we received them from the Office. We were not aware of any ATO planning to protect the health and safety of its staff. We said the ATO had not consulted with us, despite their obligation to do so under the Work Health and Safety Act 2011. We said Commissioner Jordan’s announcement to all staff last Thursday afternoon said the ATO had a comprehensive plan to deal with the pandemic. We had no knowledge of this plan. The ASU had written to Commissioner Jordan last Monday about our concerns. We said we would hold the Office to account for its failure to comply with its statutory obligations. The ASU said the ATO cannot legally compel its staff to work from home. Some staff are not in a position to work from home for a variety of reasons…
…
And then
Jeremy said we had some really valid concerns. These were the type of issues the Office wanted to discuss with us.
Jeremy had seen our letter to the Commissioner so he was aware of many of our concerns. But the Office was looking for our support to ensure everyone’s welfare is looked after, while the Office continues delivering for Australia.
The ASU responded that we can’t work with the Office unless it is prepared to consult and negotiate with us at an appropriately senior level. We need to see the Office put arrangements in place for the future, otherwise we will hold the Office to account for its past and future failures.
Jeremy said his commitment to us is to work with us. He said the Office needs our support. He said the Office would work with us to achieve those objectives. He said he would get back to us today.
The ASU asked for detail about the ATO’s announcements to staff today. Some may be prepared to work from home, some may not be able to work from home.
Jeremy said the Office would have regard to everyone’s individual circumstances. The Office would try to ensure that everyone has work to do from home.
The ASU said we would have to advise our members this morning of their legal rights and the ATO’s obligations about working from home. We asked Jeremy about Thursday and Friday.
Jeremy did not know. He said the circumstances were changing very quickly. Our phone conference concluded.
…
69 Mr Lapidos circulated another document to ASU members on 24 March 2020 saying:
…
This report addresses many of the issues in setting up working from home arrangements. See clause 50 of the ATO Enterprise Agreement.
If you have been working from home and you have systems issues
…
When you have approval to work from home all the rules in the ATO Enterprise Agreement, in the Public Service Act and in ATO policies continue to apply [50.4].... The ATO cannot terminate a formal working from home arrangement, except with four weeks notice [50.2 d)]. The ATO can terminate a working from home arrangement without notice, but only if you breach the agreed arrangements, which should be in writing. Please report to us if your manager persists to say you need to take some of your personal, annual or flex leave if your systems access fails or is irregular, runs too slowly to be effective. We will take the issue up with the Office. As always, we are prepared to take issues to the Fair Work Commission for resolution if necessary. But these rules are clear, and we do not expect the Office to disagree with us about this type of situation. However, we advise you to keep notes of any systems difficulties you experience and report them, preferably on a daily basis to your team leader.
Do not spend money on setting up suitable equipment etc for you to be able to work from home – without the ATO’s prior agreement
If the ATO asks you to work from home, or even if you ask to be able to work from home, it is the ATO’s responsibility to ensure that you have a place at your home that will be suitable and meet your health and safety needs for you to work there. Working from home arrangements could easily last 6 to 12 months or even longer as a result of the current crisis. We are in a difficult situation. The ATO Enterprise Agreement provides for the ATO to meet all or part of the cost of establishing work from home arrangements…
…
We support the Office, the Office needs to support us
We are doing the ATO and the people of Australia a favour, perhaps it is more than that, doing our best to support our nation in a time of crisis, by agreeing to work from home. The ATO cannot compel us to work from home. If the ATO cannot provide the facilities for us to work at its premises, then the ATO has to pay us our full salary anyway. When you see this in context, it is not too much to expect the ATO to pay for you to establish suitable working arrangements at home. If you recently bought equipment, such as an ergonomic chair or anything else you thought you would need to be able to work from home, then you should keep the receipt. You should seek reimbursement for the cost of such equipment as part of establishing a working from home arrangement.
…
70 On 25 March 2020, Mr Moore emailed Mr Lapidos. The email said:
In order to allow employees the maximum flexibility, to balance their work and other obligations, we [are] in the process of preparing simple guidance for managers about how employees may structure their work hours, within the current Enterprise Agreement provisions and without reverting to exceptional measures (eg. payment of penalty rates, putting Individual Flexibility Arrangements in place, etc).
We have extracted what we believe are the most relevant provisions from the EA (on which we will base our guidance) and would appreciate any feedback you have. As this is a work in progress we would appreciate any feedback you have by COB 26 March 2020.
71 On 26, 27, and 31 March 2020, Ms Blaseotto forwarded Mr Lapidos the latest ATO advice that had been sent to all staff.
72 On 31 March 2020, Mr Chapman emailed Mr Lapidos saying:
Thank you for agreeing to catch-up last evening to discuss how we might be able to work together.
As discussed below is a proposed set of arrangements to try and more productively work together as we progress into these very unusual times.
I proposed that, at least for the coming weeks, Assistant Commissioner’s Jeremy Moore and Christ Gyetvay will schedule two opportunities a week to discuss recent developments in relation to our response to COVID-19, future plans and issue resolution. These discussions would provide a great opportunity to provide feedback, raise issues or concerns with key decisions makers who will be able to take action where appropriate or talk through and explore issues and differing perspectives on issues. Between them, Jeremy and Chris have accountability for, and leadership of, employment policy matters, occupational health and safety and various staff support materials that form part of our response to COVID-19. In addition, as key members so [sic] of the ATO People Exec and the ATO’s senior leadership group they have reach into the organisation where things fall outside the scope of their direct teams.
Where possible I intend to make myself available for some or all of one of these meetings so I too can hear items that may be of concern to our staff / your members. On occasion I also expect that ATO Executive members Jacqui Curtis and Jeremy Geale may be available as well – though I expect this will be more challenging given the calls on their time.
As discussed, particularly in light of the time commitment required, my preference would be to engage in these discussions jointly with the ASU and the CPSU. These meetings with the CPSU have proven useful to date with a range of matters already explored – I would like to ensure that you and your members have equal opportunity to do the same.
I see these meetings as a key opportunity for the ATO to test potential directions with the unions and for you to put forward the views, concerns, feedback etc. of your members (on matters tabled by the ATO and on others you feel you need to raise).
Overall I don’t want unnecessary disputation as I don’t feel it is aiding our staff or bringing about as timely a resolution of issues as we can achieve through regular open dialogue.
I’d appreciate your consideration of this approach and look forward to hearing back from your [sic].
73 On 31 March 2020, Mr Lapidos and Ms Blaseotto exchanged emails on certain amendments to the WFH Guide. One focus was on the costs of working from home and tax claims for those costs. The amendments Ms Blaseotto proposed to the WFH Guide were as follows:
During our COVID-19 response, you may negotiate working from home arrangements with your manager depending on available equipment and operational priorities. A checklist is provided with this Guide to ensure you set up suitable arrangements with your manager about security and health and safety requirements, your office set up and working arrangements.
Please refer to the APSC advice on claiming expenses related to working at home on your income tax return.
Working from home during the COVID-19 response is voluntary and temporary and any interim working from home arrangements established during the COVID-19 response supersede existing working from home agreements.
You are covered by the same employment conditions when working from home as when working in the office.
Your current regular hours agreement, part time hours agreement, rostered hours or default hours will apply in the same way as when you work in the office.
You are entitled to access flextime in the same way when working from home as when working in the office.
You must uphold the APS Values and Code of Conduct and security protocols whilst working from home.
If you are unable to work from home during the COVID-19 response, and are unable to work from the office, discuss your working arrangements with your manager.
74 Mr Lapidos suggested that the WFH Guide be amended by including paragraphs saying:
During our COVID-19 response, you may negotiate a formal working from home arrangement with your manager.
It should address any security or health and safety requirements that may be needed;
Be in writing, setting out any relevant conditions and arrangements;
Must outline arrangements for the cost of establishing your working from home arrangement; and
Note that the arrangement can be terminated by agreement or on four weeks’ notice.
You are covered by the same employment conditions when working from home as when working at the office.
So your current regular hours agreement, part time hours agreement, rostered hours or default hours will apply in the same way as when you cease working from your site.
You are entitled to access flextime in the same way when working from home as when working at your site.
75 On 1 April 2020, Ms Blaseotto emailed Mr Lapidos saying:
I just wanted to let you know that we have had to make some changes to the agreed wording to reflect that some states have made it clear that if you can work from home you should. So the update is as follows.
76 The email then included amended extracts from the WFH Guide including:
Working from home when your site is still open
During our COVID-19 response, if you can work from home you should do so you may negotiate working from home arrangements with your manager depending on available equipment and operational priorities. A checklist is provided with this guide to ensure you set up suitable arrangements with your manager about security, health and safety requirements, your office set up, and working arrangements.
Working from home during the COVID-19 response is voluntary and temporary. Any interim working from home arrangements established during the COVID-19 response supersede existing working from home agreements.
You are covered by the same employment conditions when working from home as when working in the office. This includes your current regular hours agreement, part-time hours agreement, rostered hours or default hours will apply in the same way as when you work in the office.
You are also entitled to access flextime in the same way when working from home as when working in the office.
You must uphold the APS Values and Code of Conduct and security protocols and security protocols whilst working from home.
If you are unable to work from home during the COVID-19 response, and are unable to work from the office, discuss your working arrangements with your manager.
77 On 2 April 2020, Ms Blaseotto emailed Mr Lapidos the latest employee information and amended WFH Guide, as well as related information.
78 On 3 April 2020, Ms Blaseotto and Mr Lapidos exchanged emails. Ms Blaseotto asked Mr Lapidos if he wished to set up a meeting as suggested in Mr Chapman’s email of 31 March 2020. Mr Lapidos said he would, but queried the attendees at the meeting from the ATO. Ms Blaseotto responded saying the ATO attendees would be Mr Moore and Mr Gyetvay with Mr Chapman, Mr Geale and Ms Curtis if they were available. Mr Lapidos then emailed saying:
I am concerned we may be at cross purposes in relation to the meeting you are seeking to arrange, Anne.
We are preparing a response to Brad’s email to me on 31 March. I expect to provide Brad with a written response on Monday. My understanding is that Brad’s proposal was made to put arrangements in place to improve co-operation between the ASU and the ATO about the ATO’s response to the pandemic. As I understand it, Brad’s email had nothing to do with the ASU’s letters/emails to the Commissioner, which were issued in accordance with section 80 of the Work Health and Safety Act 2011.
I need the ATO to clarify for the ASU whether the proposed meeting is to be convened in accordance with section 81 of the Work Health and Safety Act 2011. I also need confirmation that the CPSU will not be invited to the meeting. If the ATO’s intention is to convene the meeting in accordance with section 81, we would want the date and time to be arranged so as to be convenient for an inspector from Comcare to join the discussion, if Comcare agrees to agree to our request that it appoints an inspector for this purpose.
Please let me know the ATO’s position.
79 On 3 April 2020, Mr Moore wrote to Mr Lapidos about a number of matters including the 2 April 2020 amendments to the WFH Guide.
80 On 6 April 2020, Mr Moore emailed Mr Lapidos saying:
… Anne’s email was following up from Brad Chapman’s email of 31 March where he proposed to schedule a “two opportunities a week” to discuss recent developments in relation to our response to COVID-19, future plans and any issues that any party may have. This offer (which has been on the table for several weeks) is not in response to your application to the CEO of Comcare of 2 April 2020…
…
Our offer to meet with you to discuss COVID-19 related issues predates you [sic] application to Comcare and more importantly is not limited to WHS matters. I was hoping to take the opportunity to respond to some of the questions you had raised in varied previous correspondence which also predates your application to Comcare.
As you would understand – the situation has been evolving rapidly and we have been responding to the requirements of the Australian Government, various state and territory jurisdictions and APS guidance. In these circumstances most employers, regulators and peak bodies have determined traditional timeframes and formulaic process driven consultation and decision making frameworks are not practicable and could put lives at risk in this quickly changing environment.
I am happy to meet with you separately to the CPSU – however obviously we would look to prioritising the attendance of Jeremy Geale, Jacqui Curtis and Brad Chapman when we have the opportunity to brief all parties in one session. I should note that the discussions we have been having for some weeks with the CPSU are not limited to WHS issues – we have discussed and taken feedback on issues including staff leave arrangements, responding to the state’s schooling and childcare announcements, the workload associated with recent Government stimulus package announcements, staff movements within and out of the ATO, performance and future development of IT solutions for working from home, options for further flexibility in working hours and work arrangements and many others. Where the CPSU have questions we are unable to answer, during these meetings, we generally provide short responses (out of session) before the next meeting.
Jeff – on a personal note I am not sure of where to next. We have been reaching out, in good faith, to engage with you. However, it is hard to understand how you want to be involved in this rapidly moving environment when you refuse offers to be part of the discussions at the time when the decisions are being made.
As always the offer of regular meetings, to discuss any concerns you have and for us to tell you what we are considering remains open. However, if you would prefer we did not engage further until we have a formal response [from] Comcare it would be appreciated if you could make that clear.
81 On 6 April 2020, Mr Lapidos emailed Mr Moore in reply saying:
…
We propose the following informal arrangements be put in place to deal with the ATO’s response to the COVID-19 pandemic. However the ASU would reserve our rights to deal with any issue through formal mechanisms if we consider it necessary.
Informal arrangements
1. Briefings by Jeremy Geale, Jacqui Curtis and Brad Chapman: The ASU is prepared to join these along with the CPSU. Amelia and I would join by telephone. Ancel would prefer to join by telepresence if this is available.
2. Twice weekly discussions: We accept your proposal that we meet with you without the CPSU. We would welcome you being joined by any other ATO representative you consider appropriate. We propose these occur by phone conference.
…
Formal mechanisms for resolutions of disputes
1. WHS dispute resolution: The ASU is concerned the ATO has not yet proposed any arrangement for resolution of the issues the ASU raised with Commissioner Jordan on 16 March or on 25 March. The ASU is prepared to discuss these concerns with anyone from the ATO who meets the requirements of section 80 (2) of the Work Health and Safety Act 2011. The ATO should not delay these discussions to obtain the outcome of Comcare’s decision about appointing an inspector in response to our request of 2 April 2020.
2. Other issues of concern: The ASU will notify the Office in writing if we need to deal with any issues through formal mechanisms.
82 On 8 April 2020, Mr Moore emailed Mr Lapidos saying:
I will you [sic] Ancel and Amelia and set up the twice weekly discussions as we have previously proposed.
I see these as opportunities to discuss broad approaches to issues related to the COVID-19 pandemic and for us to include your feedback in the decision making process.
…
I will look for an early opportunity to set up a meeting which includes Jeremy Geale, Jacqui Curtis and Brad Chapman so they are able to share their assessment of future directions and you can directly raise any issues of concern. You are of course welcome to write to Jeremy, Jacqui and Brad on any subject however, it will be no surprise that, in the first instance, they are likely to refer such enquires to my team for initial research and preparation of a response.
…
Concerning the WHS dispute you have asked Comcare to arbitrate on – I do consider myself a person who fits the requirement of section 80 (2) of the Work Health and Safety Act 2011; which is why I have been trying to set up meetings with you to discuss the concerns you have raised. However, as you have asked for certain matters to be acted on by Comcare I do not think it would be appropriate for either party to discuss those until Comcare asks for a formal response or provides an outcome. I am sure you would agree that it would not be prudent to circumvent a process you have asked an outside regulator to become involved in. I will ask Jess to touch base with you all, as soon as possible, to set up the meetings.
83 On 9 April 2020, Mr Lapidos emailed Frances Southward (Assistant Commissioner for Service Delivery in the ATO) saying:
One of our members at Newcastle in RDR is working from home. She has been told she has to return to the office for training, but it has not been clear what the Office wants her to do afterwards.
She is very distressed for personal reasons, which I can explain.
There is no mention of this in the brief report we received this afternoon from Caitlin Beesley. Our members are on WFH agreements. The ATO has to give 4 weeks’ notice to terminate.
On what basis does the Office say it can direct staff to again work in the office?
Can you get back to me today please?
84 In an internal email from Ms Catherine Beesley (ATO Employee Relations Advisor) to Mr Moore and Ms Blaseotto dated 9 April 2020 about Mr Lapidos’ email of that day, Ms Beesley said:
I’ve deliberately avoided answering Jeff’s statement about four weeks’ notice because I think we need more time to consider this with EP and others before responding on that point directly.
So, I’ve pulled out Clause 50 of the EA (attached) and I’ve included my comments, which in short are that Clause 50 applies to ‘formal’ working from home arrangements and as outlined in our COVID working at home guide – COVID working at home arrangements are ‘interim’. The only tricky part with this is that we have said COVID interim arrangements supersede existing arrangements but we can deal with that one another day.
In short, I think (and there are smarter people than me who would need to review this) that we are not under a formal arrangement and therefore 4 weeks does not apply. If Jeff disagrees after we have provided him with our reasoning I think we should encourage him to go to FWC about it because there’s no way they would consider 4 weeks wait time to service the public in the current circumstances reasonable. And as you’ve said Anne – our EA is not designed to provide us with the flexibility needed to respond in a pandemic situation.
Let me know what you think.
85 On 9 April 2020, Ms Southward emailed Mr Lapidos saying:
…
With regards to Working From Home Arrangements:
The ATO has been explicitly clear that employees may need to return to the workplace to support the ATO’s response to COVID-19 priority work.
As previously discussed in our workforce shift PHU’s and also outlined in ATO COVID-19 staff updates, the suitability of all working from home arrangements needs to be reviewed regularly, in case there are changes to operational requirements or an individual’s circumstances. All of us will play an important role in delivering our essential services to the community during this difficult time and staff may also be required to support other teams and roles in a capacity which involves them returning to the workplace.
Further the COVID-19 Working From Home document states:
• Working from home during the COVID-19 response is temporary. Any interim working from home arrangements established during the COVID-19 response supersede existing working from home agreements.
• If you are unable to work from home during the COVID-19 response, and are unable to work from the office, discuss your working arrangements with your manager
When working from home, you are required to:
• Attend the workplace when requested by your manager where appropriate and possible to do so.
With regards to your question about the basis on which the ATO can ask staff to return to the office:
Advice from the ATO and the APS is that staff should be working from home where it is operationally possible to do so.
We will see a number of staff needing to return to the office either for training to undertake temporary priority work or to undertake the priority work itself, if the work cannot yet be done from home. Instances of this include in our frontline services area where we are still trialling working from home solutions.
I hope that this answers your questions and am happy to discuss this with you further if necessary.
86 On 15 April 2020, Mr Lapidos wrote to the Commissioner saying:
The ASU writes in accordance with clause 100.3 of the ATO Enterprise Agreement 2017 (Agreement).
We are concerned that the ATO has improperly suspended the working from home arrangements of our members, contrary to clause 50 of the Agreement. The ASU wrote to Assistant Commissioner Fran Southward on 9 April. Her response of the same date is set out below my signature block.
The ATO may only impose a short term suspension of working from home arrangements in accordance with clause 50.9 of the Agreement. This requires the giving of a minimum of one week’s notice; taking any hardship into account; and the suspension may not exceed eight weeks unless a longer period is agreed with the employee.
It appears to us that the ATO has breached clause 50.9. We ask that the ATO remedy the situation as a matter of urgency.
Please ask your representative to contact me to arrange an urgent dispute conference.
87 In an email to the Commissioner also on 15 April 2020 Mr Lapidos said:
I again raise the ASU’s concerns with you in the hope you will see there have been significant errors of judgement in how the ATO has been implementing its response to the pandemic and the Government’s new initiatives, as far as they impact on ATO employees.
Today it is a dispute notice about the ATO improperly suspending working from home arrangements.
Unfortunately, I expect to draw other issues to your attention in the near future.
88 On the same day, 15 April 2020, Ms Blaseotto emailed Mr Moore saying:
The advice about suspension is in the formal WAH Policy [sic] and the EA but this is not what has been incorporated into the COVID WFH guide – the guide clearly notes this is a specific agreement that staff enter into for the COVID response as outlined below – it’s not actually really clear that staff can be directed back to the office and the [sic] is no end date on the COVID checklist – it notes regular reviews.
If you can work from home, you should do so. This guide is intended to help you transition into a work from home situation in order to continue to serve the public. Working from home during the COVID‐19 response is temporary.
Interim working from home arrangements confirmed during the COVID‐19 response supersede any existing working from home agreements.
Under employee responsibility
• Attend the workplace when requested by your manager where appropriate and possible to do so.
89 On 16 April 2020, Mr Lapidos emailed another ATO employee about staff issues in “SDMR [Strategic Debt Management Resolution] at Docklands”.
90 Ms Blaseotto emailed Mr Lapidos on the same day, 16 April 2020, saying:
I am writing to acknowledge receipt of your dispute notice about working from home arrangements. For future reference, could you please include the Employee and Industrial Relations mailbox in all communications as this will ensure we are aware of the communication and can take timely action.
Regarding the dispute notice, can you please advise who the employee is that you are representing so that we can investigate the circumstances with the relevant work area.
91 Also on 16 April 2020, Ms Blaseotto sent another email to Mr Lapidos about issues concerning staff in SDMR at Docklands.
92 On 17 April 2020, Mr Lapidos emailed Mr Chapman (copying Mr Moore and Ms Blaseotto as well as other ASU members) saying:
I refer to Anne Blaseotto’s email yesterday at 12.49 in response to the ASU’s dispute notice to Commissioner Jordan about improper suspensions of working from home arrangements and Anne’s email, also yesterday, sent at 5.45pm in response to concerns about staff in Strategic Debt Management Resolution at Docklands (SDMR) being wrongly expected to work below their classification and their working from home arrangements being improperly suspended and finally to Jeremy Moore’s response this morning to the ASU’s concerns about the ATO improperly expecting employees to work below their classification.
We should deal with these issues together and urgently
All these issues need to be dealt with as a matter of urgency because the ATO is telling its employees that it expects them to work below classification and suspending their working from home arrangements, both in breach of the ATO Enterprise Agreement in our view. These issues overlap because of how the ATO is administering the Government’s new initiatives. The ASU wishes to deal with them together. The ASU also wishes to bring all these issues together into one dispute, and deal with them urgently, so we can progress them as quickly as possible, and bring them to a final conclusion. We seek your agreement to this.
93 On 17 April 2020, Mr Moore emailed Mr Lapidos offering to meet to discuss all issues. Other emails about staff issues were also exchanged and continued thereafter.
94 On 13 May 2020 Mr Moore sent a letter to Mr Lapidos saying:
…
Matters under dispute
2. On 17 April 2020 the ASU requested that the three matters outlined below be treated as one dispute, despite only one matter being formally lodged as a dispute under clause 100 of the ATO Enterprise Agreement 2017 (EA).
a) Your dispute notification to the Commissioner dated 15 April 2020, regarding the suspension of working from home arrangements which you claim is in contravention of clause 50.9 of the EA. This clause requires the giving of a minimum of one week’s notice; taking any hardship into account; and that suspension may not exceed eight weeks unless a longer period is agreed with the employee.
b) Your email to Duncan Stewart of 16 April 2020 (following the Service Delivery Consultative Forum) indicating you believed that the ATO may not recall any ASU member who is currently working from home to work from an ATO site, except in accordance with clause 50.9 of the EA, and also may not assign duties to any ASU member which is below their substantive classification level.
c) Your letter to AC Fran Southward on 15 April 2020 indicating you believed that the ATO is not able to assign duties to employees that are at a lower classification than their substantive level.
3. On the same day, AC Jeremy Moore agreed to the ASU’s request for these matters to be considered together.
Summary of dispute outcome
4. We have outlined below a summary of the ATO’s position in relation to the dispute:
a) The ATO does not consider the arrangements, made in response to the COVID-19 pandemic, to be a working from home agreement as envisaged under clause 50.1 of the EA. As such, the ATO will continue to recall employees to the office to meet government priorities. There is no commitment to one weeks’ notice in recalling staff, however, as much notice as possible would be provided should this need arise. Where employees have formal working from home agreements, this will be done in accordance with the requirements of the EA. The ATO is not aware of any instances where staff with working from home agreements made under clause 50.1 of the EA have been suspended.
…
Suspension of working from home arrangements and recall to the office
8. As part of the Australian Government’s measures in response to the COVID-19 pandemic, this calls for a more flexible approach for the ATO to quickly support employees to work at home as per the government directive where it is operationally possible and safe to do so.
9. To this end, the ATO developed the COVID-19 Working from Home Guide and Checklist to support employees and managers to consider suitable productivity, security and safety matters while working from home during the COVID-19 response period.
10. The ATO does not consider this arrangement to be a working from home agreement as envisaged under clause 50.1 of the EA.
…
11. The ATO believes the Guide and Checklist:
• provides the ATO assurance that the employee agrees they have adequate facilities to work from home;
• provides a manager’s confirmation that the work type can be done in a home environment;
• does not provide any tacit or explicit guarantee of a full-time working from home arrangement nor is it intimated this arrangement would be indefinite; and
• provides explicit advice that employees are required to return when requested by their manager.
12. As such, we believe the ATO is able to recall employees to the office when operational requirements cannot be met by working from home.
13. If employees do not have a formal working from home agreement, then the requirements of clause 50.9 does not apply.
14. Noting our comments in paragraphs 4, 6 and 7 above, we are not aware of any working from home agreements, made under clause 50.1 of the EA which have bee1n suspended.
15. The ATO notes that clause 50.9 applies when employees have an approved formal working from home agreement in place as required by clause 50.1 of the EA.
16. The ATO is of the view that as much notice as possible of the need to return to the office will be given to employees who do not have formal working from home agreements. However, it cannot be guaranteed that it will be one week’s notice. Nor can there be a guarantee that the employee will be able to return to working from home as this will depend on operational requirements. It is noted that employees with special considerations need to discuss their circumstances with their manager. Managers have been asked to be as flexible as possible.
95 Communications between the ATO and Mr Lapidos continued.
96 The ATO and Mr Lapidos ultimately met on 9, 14, 15, 17, 20, 22, 24, and 29 April 2020.
97 Ms Blaseotto’s notes of the meeting of 9 April 2020 with Mr Lapidos include:
JM [Jeremy Moore] – if people can work at home they should – assessment left to individual – if they don't have the right equipment then they should not work at home.
Another meeting set up for Tuesday and JL to put questions in writing.
98 Ms Blaseotto’s notes of the meeting of 17 April 2020 with Mr Lapidos include:
2. Working from home
Why 50.9 doesn’t apply – generally it does but not normal circumstances – Guide says its temporary and [people] had [to] be able to perform their job from home – no guarantee – jobs have changed and cannot do it [from] home – so need to return to the office. If special circumstances then consider situation. Asking questions about vulnerable people to give evidence. This helps to prioritise equipment and ensure the right people are working from home. Managers and PST working with staff to be flexible.
ASU – If circumstances change then give 4 weeks notice – can WAH ad hoc and formal.
Cannot change the EA provisions.
If formal WAH – then can stay.
If people insist on a weeks notice – then we would look to cancel arrangement.
Arrangements in [place] to be flexible and to protect them and the people in the office.
Appealing to peoples flexibility. Now they need to come back unless there are real circumstances that they cannot come back in. Need to rely on staff to also be flexible. Always designed to be short term and staff advised they were temporary.
We are not agreeing – tell us the members who need to one week’s notice – and apply for hardship which is different to the Health guidelines.
No – give us the names of the people who need the notice.
ASU has advised staff to do as told and they will hold the ATO accountable – and deal with the consequences.
99 Ms Blaseotto’s notes of the meeting of 24 April 2020 with Mr Lapidos include:
JL – WFH for people approved to WFH as per Guide – that if we want to suspend arrangement the office needs to give minimum 1 weeks notice – wants this agreement. People can come in earlier if they agree.
JM – In force while you can do your job at home – will give as much notice as possible – cannot guarantee one week. In the abstract we don't know what notice has been given and have no evidence it’s not happening.
Will follow up if there is a real need – genuine reason why they cannot return to work for assigned duties.
WFM agreement – specific to COVID – employee agrees they can WFM and manager says they can do their WFH – no set pattern. What in WFH agreement guarantees right to WFH –
Agreement is under the checklist – wants 1 weeks notice of suspension and 4 weeks termination.
JM – won’t be agreeing that this represents a formal WFH agreement as per cl 50 – specific agreement for allowing people to WFH in COVID – will give as much time as possible – doubt there will be less than 1 weeks notification but not definite. Put in place to meet govt commitment –
Are they made under clause 50???
100 Amelia Tucker of the ASU took notes of the meetings. On 9 April 2020 Ms Tucker was on leave, and Mr Lapidos took notes of the meeting on that date, which included:
Consultation with employees, their representatives and the National OH&S Committee
The ATO has released a barrage of updates on its response to the pandemic to its employees. But it is not consulting with its employees. The ATO needs to put arrangements in place to consult with its employees and the ASU.
…
Provide safe systems of work for employees working from home
The ATO is approving its employees to work from home for the next six or more months, even though many employees do not have appropriate facilities to do so on a continuing basis. The ATO knows that its employees are using laptops for their work, even though this is not satisfactory on ergonomic grounds for longer than short periods of time. Many employees are working from home at kitchen counters or at kitchen or dining room tables. Some are working on couches. The ATO is not allowing its employees to take home the ergonomic chairs allocated to them at their workplace, unless they were especially provided to them in particular as reasonable adjustment for their disability and/or medical condition.
There is provision in the ATO Enterprise Agreement for the ATO to authorise meeting all or part of the cost of establishing a working from home arrangement. The ATO needs to accept responsibility for ensuring that its employees have a safe work station and safe equipment for their work from home.
…
JM – if can work at home, then should. If can’t because don’t have the right equipment, then not forcing them to work from home.
101 Ms Tucker’s notes of the 15 April 2020 meeting include (emphasis in original):
…
JM: guidance, says if you can work from home, you should be. So, if their home’s not suitable, or the work they do is not suitable – the type of work.
102 Ms Tucker’s notes of the 17 April 2020 meeting include (emphasis in original):
JM: we have questions from last meeting [previous] and joined up dispute?
Jeff: joined up dispute
JM: you raised the issue that called people are being called back to work, special circumstances, its’ hard to have a philosophical debate without understanding specific circumstances.
[is it a problem for us – that we’re not trying to resolve circumstances for individual people]
…
Jeff: people working from home, and being told to come into work – mainly in CAS. Why doesn’t the Office accept thats [sic] clause 50.9?
JM: generally I do, but these are not normal times. Agreement, most in Debt don’t have a WFH ag, either formal or informal. Guide, and the [signed] ones, indicated, this was a time bound activity, and people will have to be able to perform their job from home, jobs changed, so we need them to come back in to do the training. If people have exceptional circumstances, they should tell their [managers], and we’ll assess them. If they say they’re vulnerable, we’ll have to look at Gov’t definition. I know they don‘t like telling their [managers], but often [managers] are generally aware anyway. We’ll prioritise equipment to those who most need it. Also, vulnerable people, then we can free up others to the do the work.
Jeff: a couple of comments. If you think circumstances have changed, can give 4 weeks’ notice. Or, work from home, ad hoc, or formal. Ad hoc, don’t need notice but clause 4 relevant, if they’re WFH on a continuing basis, doesn’t meet the Office can terminate just because paperwork not completed. Can’t just opt out of EA.
JM: if they have formal WFH, I’ll consider the documentation, if some people really want a weeks’ notice, they were told on Thursday ... we don’t want to cancel the WFH arrangements. The arrangements we made to get people home quickly, were to make people safe. Now we have a need for them to come back to the office, we’d ask them to show us the same flexibility. If we can’t rely on people coming back to the Office, we may have to reconsider the WFH arrangements. We advised people short term. Many people won’t be covered by the EA without the clause
Jeff: how are they working from home if not covered by clause 50
JM: ‘ad hoc’
Jeff: well ‘ad hoc’ are not designed for long term use
JM: correct. We’ll get them back to the Office.
Jeff: you have at least 9,000 working from home. Your guidelines told them too. They guide told them to have discussions with their manager – and then [manager] either approved or not.
Anne: we agreed to temporary arrangement based on operational requirements. If circumstances changed, they’d have to come back
Jeff: yes – but that’s if the worked dried up or ...
Anne: what you’re saying is not in the guidelines
JM: tell me which of your members require a weeks’ notice.
Jeff: two issues – 1 is the weeks’ notice, 2 is the hardship. Almost 1,000 members, not going to give names. Give them the weeks’ notice – tell them that you’ll consider any hardship issues.
JM: no. tell me names of people that want the weeks‘ notice, and I’ll take that to the business lines.
Jeff: I told them we’ll hold the Office to account.
…
JM: a few weeks ago you were berating us for being too slow to let people work from home. What you’re now saying now is if we didn’t let them WFH quickly – we wouldn‘t be having this discussion.
Jeff: our Union would seek to hold you to amount [sic] for any EA breaches
JM: we don’t thing [sic] we have breached the EA. But the offer stands, they can come and speak to us about hardship. Duncan.
Jeff: in terms of WFH, comply with 50.9, or terminated the agreement. In terms of working below classification, I don’t agree. The old clause 114, in 2011, didn’t allow the Office to get people to work below their classification. The old 113.
103 Ms Tucker’s notes of the 24 April 2020 meeting include (emphasis in original):
Jeff: well I’ll say it again, WFH, want Office to adopt the position, for those who’ve been approved to WFH in the context of pandemic, if the Office wants to suspend those arrangements, give them a minimum weeks’ notice. They can say they’d appreciate it if they’d come in earlier, because a pandemic ... and secondly ....
JM: I’ll just deal with first that one. The WFH arrangements say they’re in force while you’re at home. Change of work means different situation. And, maybe people have been given a week. I don’t know.
Jeff: the Office has crowed about having 11,000 working from home.
JM: not crowed ...
Jeff: the point is, those people must have WFH agreements. We’re just asking you to comply with clause 50. Not much to ask.
JM: I told you specifically, if someone’s been given less than a week, we’ll fix it.
Jeff: ...
JM: you have to demonstrate a real need – genuine reason they can’t return to work to do the work they’re assigned. Their WFH agreement is for a specific purpose – it only applies if the work they’re doing can be performed at home. It’s been set up to meet a specific circumstances. What in their agreement guarantees they can ...
Jeff: clause 50.
JM: let’s look at the agreement they’ve signed.
JM: it denotes an ability to work from home [only]. Not in place for ever. If they’re recalled to work to do other work that can it be done at home. If you job changes you can’t WFH anymore.
Jeff: where does it say that?
Anne: checklist says – can you reach the operational requirements?
Jeff: under checklist. Manager agreement. In the absence of any comments ...
Anne: revised latest version changed the wording
Jeff: that’s all fine, but the EA sets out requirements. We want the Office to say, if the suspension will cause hardship, we’ll consider ...
JM: that’s the offer I gave you, and in the advice I gave you
Jeff: then put that in the Outcome letter.
JM: it’s not the same WFH Ag, that is envisaged in the EA. It’s very clear it’s only for a specific circumstance.
Jeff: are you saying the 11,000 agreements you’ve made are not in accordance with the EA?
JM: I’m saying [repeats]
Jeff: but are you saying cl. 50 doesn’t apply to all of these WFH agreements you’ve made?
JM: no. I’m trying to dance around that issue!
…
2.10 ATO evidence
2.10.1 Jacqui Curtis
104 In her affidavit Ms Curtis said that in her position as COO of the ATO and as part of the ATO Executive Committee, she was involved in the ATO’s response to the pandemic. The focus of the response was ensuring the health, safety and welfare of ATO staff in difficult circumstances.
105 Ms Curtis explained that:
On the basis of rolling government announcements, it became apparent that the ATO would most likely need to move a large number, if not all, of its workforce to working from home over a relatively short period of time.
…
To facilitate such a massive exercise as quickly and orderly as might be possible in the exceptional environment that the ATO had been put in, and to maintain the necessary safeguards in terms of matters such as health and safety and security of ATO equipment and information, the ATO needed to produce material to assist managers and employees to navigate that process at the local level. The ATO “Working from home COVID-19 Response” guide (the WFH Guide) was one of the resources produced to meet that need, consistently with the overall ATO pandemic response and broader whole of government guidelines and directions.
Jeremy Geale and I had joint responsibility for overseeing the making of, and then promulgating the WFH Guide.
106 Ms Curtis said that:
The WFH Guide was a living document and was continuously subject to revision and update as the circumstances presented by the pandemic developed. I was not across the detail of every change to, and every iteration of, the WFH Guide (many of which would have been minor updates), I oversaw its ongoing role as an important part of the ATO COVID-19 response.
It was essential that any working from home solution for all ATO employees had the employees’ wellbeing and safety front of mind at all times. Individual circumstances varied. Some people were readily able to work from home. Others had children or other caring responsibilities, or home situations (such as living in share houses) that did not readily facilitate working from home. The ATO needed to find a way to consider, and have regard to and empathy for, the circumstances of every individual member of its staff, and to tailor an appropriate solution to meet the safety and operational needs associated with their work and domestic situation. To assist those at the local level to reach a solution to those issues as quickly and efficiently and effectively as possible, the WFH Guide required the local manager to talk to their direct reports to explore the relevant issues, which the guide identifies by way of flowchart and a checklist. The WFH Guide was intended to provide practical assistance to facilitate employees and managers to have those conversations. The language of the WFH Guide was specifically directed to flexibly accommodating varying staff situations. It was not presenting hard and fast rules, but rather emphasised that arrangements needed to be appropriate and possible.
107 According to Ms Curtis:
At the time of creation of the WFH Guide, it never occurred to me that we would need to enter into formal working from home agreements with employees under clause 50.1 of the ATO Enterprise Agreement. The circumstances were totally inappropriate to make any such agreement with everyone, or large parts, of the whole of the ATO workforce, which as mentioned went well beyond just those employees who are eligible to be members of the ASU and to whom the ATO Enterprise Agreement applies.
At the time of preparing the first iteration of the WFH Guide, I was aware that employees to whom the ATO Enterprise Agreement applied had a right to seek or make a formal working from home agreement. However, I was not familiar in any detailed way with the relevant clause facilitating formal working from home agreements (which I now know to be clause 50.1 of the ATO Enterprise Agreement). At best, my awareness was at a very general level… The circumstances in which the ATO was looking to move the entirety of its workforce, or very large parts of its entire workforce, to work from home, were remarkably different to those which were contemplated by clause 50.1 and the ATO working from home policy.
…
From my perspective, the WFH Guide had no relationship with clause 50.1 of the ATO Enterprise Agreement or to the entitlements available to employees under clause 50. At no moment did I consider, or intend that arrangements made pursuant to the WFH Guide would take away formal working from home rights or impact on those rights in any way. Formal working from home agreement working patterns were preserved.
The sentence in the WFH Guide, to the effect that the ATO Enterprise Agreement continued to apply when working at home and, when working at home, employees are required to attend the workplace when requested by their manager where appropriate and possible to do so… was not intended to suggest that any formal working from home agreement could be suspended or terminated without giving an employee appropriate notice in accordance with the ATO Enterprise Agreement. It was not intended to apply to the hours an employee was working from home in accordance with a formal working from home agreement under clause 50.1 (if they had such an agreement in place).
The sentence in later iterations of the WFH Guide to the effect that “Any interim working from home arrangements confirmed during the COVID-19 response supersede any preexisting working from home agreements” … was not intended to suggest that existing formal working from home agreements under clause 50.1 would end. This was not the case. Formal working from home agreements were preserved and overlayed with the additional working from home hours arranged between managers and staff following the procedures in the WFH Guide.
…
I deny that I made those statements [in the WFH Guide] for any purpose other than to facilitate arrangements under the ATO Pandemic Response to protect the health and safety of employees by assisting them to work from home, and to protect them from exposure to the virus by helping limit their movements by having to attend the workplace, whilst preserving the ability of the ATO to request that they attend for work associated with critical functions to be provided by the ATO or another public service body in accordance with whole of government arrangements.
The idea that the above sentences would involve suspension or termination of a formal working from home agreement did not enter my mind at any time and certainly not during the exceptional environment in which we were making and promulgating the WFH Guide.
108 Ms Curtis gave oral evidence that nothing in any version of the WFH Guide was intended to prevent an employee from seeking a formal arrangement under cl 50 of the EA. Rather, the iterations of the WFH Guide were all intended to ensure people could work from home safely if possible.
109 The statement in the WFH Guide that “when working at home, you are required to:… [a]ttend the workplace when requested by your manager where appropriate and possible to do so” was:
… just to alert staff to the possibility that at some point they would perhaps be requested by their manager to attend the workplace, and that they should talk to their manager, if that was the case, about when it would be appropriate or possible to do it. It was really just putting it on their radar to make them aware that whilst they may be working from home some of the time or in the workplace some of the time, if they were required to come back into the workplace, that they should talk to their manager about it and talk about when and how it might be appropriate and how it might be possible.
110 Ms Curtis was asked “did clause 50 have anything to do with the inclusion of that sentence in the Working From Home Guide?” to which she responded:
No, I have to say, clause 50 wasn’t something that was a consideration when putting this together. This was about a guide that was created during a very, very short space of time in very, very unusual, unprecedented situation where top of mind for the people that were working in this space was to try and get as many of our people in a position where they could be working from home faithfully, with confidence and securely, because obviously being the Tax Office, we’ve got lots and lots of confidential information, and in a way, that enabled them to do their job productively. And, you know, at this period of time, people were confused, they were anxious, everyone’s circumstances were different, and we were trying to give as much information to our extended workforce, as I’ve explained before, to help them to figure out what are the decision making points, who do they need to talk to, what are some of their responsibilities, and to do that with empathy and concern for the situation of each of them because there were some very unusual circumstances at this period of time. So the answer to that, Mr O’Grady, is no.
111 In cross-examination, Ms Curtis reiterated that:
As I said previously, we weren’t contemplating a formal working from home agreement in the development of the COVID-19 response guide. We were actually trying to enable as many of our staff as possible, as quickly as possible, to be able to work from home. Not just those covered by the enterprise agreement but casual employees, outsourced employees, labour hire, our SES employees. Our whole contingent workforce as well as our APS employees so no, I didn’t.
…
…normally when people are entering into a formal working from home agreement, they go to their manager, they have given it some consideration, they have put some thought into how they’re going to work from home. They sit down and have a conversation. People have time to work through the arrangements, safety considerations, etcetera. Their home becomes a second workplace but this was an entirely different situation. This was a pandemic. This was an emergency. People were talking about thousands of people possibly dying. We were getting all sorts of advice from different jurisdictions and from the government itself. Our staff were anxious. Our managers were anxious. Everybody wanted to do the right thing and put health and safety of our workforce as the number 1 thing that we did and to get people working from home as quickly as we could and still be able to fulfill the obligations of the Tax Office to the community. Don’t forget, we were also at the forefront of economic stimulus and we had to do all of this in a very rapid period of time. So to think that we would enter into a formal working agreement under clause 50 of the enterprise agreement, which would normally be, as I said, quite a considered process and something where people wouldn’t be racing out the door with computers and chairs and equipment trying to think how we were going to get people working from home with technology, try to think how we would even source the technology in the first place. That’s why I’m saying that it would be inappropriate to try to get the whole ATO workforce on a clause 50 enterprise agreement, which wouldn’t have applied anyway because I’m talking about the entirety of people who were working for the ATO to deliver services to the community.
112 Ms Curtis agreed that she “expected staff to use [the WFH Guide] as a guide to help them make that decision with their manager about working from home…[t]hey had to use the guide. Yes”, and “[i]f the manager and they found that they were an essential worker, that they were unable to do their work from home for whatever reason that that might be the case then they would need to come into the workplace”.
113 This exchange occurred:
And the full context of this statement in the paragraph [“Interim working from home arrangements confirmed during the COVID-19 response supersede any existing working from home agreements”] is this, isn’t it, which is that the temporary COVID response replaces existing working from home agreements. That’s the intention, isn’t it?---Well, I would disagree. The intention was that people had a formal working from home agreement, maybe two days a week working from home, and then when COVID hit, we had to maybe get them working from home five days a week, if possible, so they had – over and above their formal working from home agreement, they then had another, say, three days working [from] home agreement. It wasn’t to say that we were extinguishing the formal working from home agreement; it was you now have that, plus the extra three days that you’re working from home. So the answer to that would be, if I recall your question properly, no... We weren’t trying to extinguish the working from home arrangements they already had; we were trying to overlay them with some additional working from home, which were the ones that we put in place over COVID-19, and, therefore, those things superseded what they had in place before, which was just the two days formal agreement.
2.10.2 Bradley Chapman
114 In his affidavit Mr Chapman said he is a Deputy Commissioner and head of ATO People, reporting to Ms Curtis. He was involved in the formation and delivery of the ATO’s response to the pandemic.
115 Mr Chapman said that:
By the end of the week commencing 16 March 2020, it was clear that the A TO needed to be prepared to act quickly to manage the impact of the COVID-19 pandemic on its workplaces, its staff and on the broader community. The health advice was changing rapidly. Governments were considering, developing and announcing programs to assist the community, both the business community and the broader community as a whole, to deal with the impact of the pandemic. This was likely to have a significant impact on the ATO, as it would be likely to be involved in administering new programs which might be introduced by the federal government to assist business and the broader community to manage the financial and other impacts of the onset of the pandemic. The magnitude of those programs would likely require a significant increase in ATO staffing resources and the reallocation of staff to more critical functions associated with the pandemic response.
There were a lot of considerations at play. There were a number of pressing matters over a very short period of time in an environment of great uncertainty and constant change. Amongst all of this, one of these issues was to manage the likely significant increase in demand on ATO staff and resources, as well as the normal day to day activities of the ATO, in a way which would reduce or limit the exposure of ATO staff and their families and communities to the risk of catching the COVID-19 virus.
This would require the transition [of] large segments of the ATO’s workforce from working in the office to working at home. This gave rise to a wide range of important and urgent considerations for establishing workable arrangements which would permit ATO staff to work safely and productively at home in a way which did not put ATO IT resources and confidential information at risk. This placed an immediate and enormous burden on ATO system resources and equipment and a need to urgently review the adequacy of IT systems to service previously unmanageable external access to the ATO databases. Initially, the ATO capacity to establish the level of connectivity to enable staff to work remotely was insufficient. Pilot programs were established to road test different means of increasing the network and connectivity capacity and enable remote accesses to systems never previously available through remote access systems.
…
In the face of such an immediate world of uncertainty and anxiety, the ATO had to provide clear and digestible guidance that could be easily distributed in order to help staff and managers understand what they needed to do to facilitate a smooth, but fast transition to working from home as and when needed, which was imminent. The circumstances would be different for each office around the country in response to varying degrees of COVID-19 in each State or Territory. Some workplaces might not be directed by government to shut but, equally, some may be directed to shut at short notice. It was necessary to cover all bases and prepare guidance to assist a large and distributed workforce.
The “Working From Home – COVID-19 Response” (WFH Guide) was one part of the ATO response to the impact of the pandemic. It was developed to facilitate a discussion between managers and employees on areas of critical concern during a rapid transition to working from home.
116 Mr Chapman said that:
The WFH Guide arrangements were to be introduced as a matter of priority to facilitate the movement of as much of the ATO workforce as possible to a working from home environment. This was not something that we had ever encountered before.
The WFH Guide was not intended to operate on a permanent basis. It sought to provide a short-term response to an unprecedented situation. The need to avoid the WFH Guide arrangements being confused as the “new norm” was recorded in the COVID-19 Steering Committee Minutes of 20 March 2020… I consistently held the view that the working from home arrangements under the WFH Guide were temporary and emergency arrangements.
117 Mr Chapman also said:
The ATO had been trying to engage with the ASU on the ATO’s response to the COVID pandemic since at least 13 March 2020…. The ATO issued a similar invitation to the CPSU.
…
On Sunday, 22 March 2020, it became apparent that a significant migration of the workforce to working from home was likely imminent. Through Mr Moore, the ATO again reached out to both the CPSU and the ASU.
I attended a meeting with the CPSU that evening at about 7pm AEDST.
I also attended a telephone meeting with the ASU at about 7:45pm AEDST.
118 Mr Chapman said that as a result of communications from Mr Lapidos, he asked others within the ATO (by email dated 24 March 2020 at 4:58pm):
…can you also confirm whether we believe these new WFH checklists that we’re getting everyone to do would be considered a formal working from home agreement? And what we may have in them to clarify that they do not constitute that.
119 Mr Chapman said he did so:
… because it had not been contemplated in any discussion I had been party to, or intended, by me that the arrangements under the WFH Guide would constitute a formal working from home agreement for the purpose of clause 50.1 of the ATO Enterprise Agreement. Formal working from home agreements under the ATO Enterprise Agreement were for circumstances where an employee would work from home as part of their normal working week. The ATO had historically had a limited take up of and capacity for formal working from home agreements. The onset of COVID-19 made it essential to find a working from home solution that would allow people to work from home for the entire week across the bulk of the workforce, including our casual workers, who were not covered by the clause 50 of the ATO Enterprise Agreement and labour hire workers who were not covered by the ATO Enterprise Agreement at all. Due to the completely unique circumstance we were in, prior to receiving a copy of Mr Lapidos’ circular that day, I had not even contemplated, that the WFH Guide arrangements would constitute a formal working from home agreement. My question in the email I sent at 4:58pm was to seek confirmation on whether I had missed a point, and if not, how we could clarify that fact in the materials we had circulated. I asked this question of my Industrial Relations experts who had developed the guide’s content.
120 In response to that email, Mr Gyetvay recommended that the ATO review all communications and the WFH Guide to clarify to the effect that arrangements made pursuant to the WFH Guide were not formal working from home agreements. The subsequent iteration of the WFH Guide, which was promulgated by way of an all staff communication on 2 April 2020, accounted for these matters amongst other changes. Specifically, it included the statement that “[i]nterim working from home arrangements confirmed during the COVID-19 response supersede any existing working from home agreements”. Mr Chapman said that:
This sentence was important to ensure that those employees who had an existing formal working from home agreement under clause 50.1 of the ATO Enterprise Agreement retained their entitlement to work from home in accordance with the terms of that agreement after any period during which they had work from home full-time during the ATO pandemic response. Through the course of the pandemic, if they would work the whole of the week from home, their existing formal working from home agreement would be superseded by the COVID-19 working from home arrangement put in place to protect their health and safety. When it would be safe to return to the workplace, they would revert to the regime in place in accordance with their formal working from home agreement. The ATO had no entitlement, and in no way intended, to deprive any employee with an existing formal working from home agreement from retaining the working from home hours under that formal agreement after their period of working from home during the pandemic response ended.
121 Mr Chapman said that:
At a meeting of the People Committee on 19 May 2020 we discussed, among other things, the arrangements for transitioning back to the office in States and Territories where ii was possible to do so … At that point in time all COVID WFH arrangements would cease and staff were expected to return to the office unless they had a current pre-existing formal working from home agreement enabling them to work some of their working week from home. Those on existing formal working from home agreements would continue to work from home for the hours designated in their existing formal working from home agreements. That was consistent with the intent of the WFH Guide arrangements to extend working from home hours for those with existing formal working from home agreements to cover their entire working hours during the ATO pandemic response.
122 In oral evidence, Mr Chapman gave evidence to the effect that cl 50 of the EA was not a reason for any provision of the WFH Guide in its various versions.
123 Mr Chapman said that Mr Lapidos attended the meeting between the ATO and ASU on 22 March 2020 and said that he “would be holding the ATO to account about what he considered to be mismanagement of our pandemic response and breaches of the Work Health and Safety Act”.
124 Mr Chapman explained that when preparing the first WFH Guide the ATO “did not understand yet whether there would be blanket shut downs where we may not have a choice as to having people in the office at all” in circumstances where “we had historically only had a very small portion of our workforce who ever worked from home, or were even capable of working from home”. As noted, Mr Chapman said that the existence of cl 50 of the EA was not a reason for any part of the versions of the WFH Guide. There was no intention to prevent any ATO employee under the EA from seeking a formal work for home arrangement under cl 50. It was “all about COVID, responding and getting people out of our offices and safe at home”. The words “[w]hen working at home you are required to… [a]ttend the workplace when requested by your manager and where appropriate and possible to do so” were included in the WFH Guide because:
…we knew that there might be instances where people would need to return to the office, but, of course, we would only want that to occur where it was safe and appropriate to do so. We knew that people were juggling children and had – with home schooling and had other issues to attend to as well, so it needed to be appropriate in the – in the particular circumstances.
125 According to Mr Chapman this statement had nothing to do with cl 50 of the EA.
126 Mr Chapman said:
…we felt it was pretty self-evident from the front cover saying this was about our COVID response, but we wanted to make it clear that these arrangements were an emergency response to the current COVID situation. It was not our new normal way of working, and, therefore, we didn’t want to set the expectation that forever more this is the way thing[s] would be. So we needed to ensure that there were review dates, but also we knew that with the changing environment, people’s circumstances would change so we would need to make sure that those – these things still remained current.
127 In cross-examination Mr Chapman said that:
It did come down to a discussion between an individual and their manager but it was a broad approach to try and get – facilitate as many people being able to work at home, whether it was then and then or whether it was about being prepared for what we expected was coming based on the trajectory that we had seen over the recent weeks.
…
They [managers] were under the authority to say yes or no but we certainly were making it clear that whilst operational arrangements needed – requirements needed to be met, we were expecting our managers to be flexible and look at alternate ways people could remain productive even if it wasn’t necessarily doing what they ordinarily might be doing on a given day to ensure we could maximise the ability for those people who want to work from home to make that shift ahead of those specific requirement or direction coming.
128 He also said:
We certainly knew that we might be needing to shift people from one type of work onto another type of work to help deal with – manage the impact of the COVID – the government’s COVID response.
129 Mr Chapman confirmed that before 23 March 2020, less than 10 per cent of the ATO workforce had a formal work from home arrangement under cl 50 of the EA. Most of these employees also worked from home only for a day or two each week. The WFH Guide, in contrast:
… was not a technical document, this was a document designed to facilitate moving 20,000 people, or close to, out of our buildings to support them to work from home. We did not get down to a degree of specificity that would have seen this be a far lengthier and more confusing document at a time when our workforce was already under a lot of pressure and feeling stress about what they were reading in the media.
130 Mr Chapman reiterated that:
This was very much about ensuring the safety of our people in unprecedented circumstances. So we didn’t – didn’t contemplate that these would be clause 50 agreements.
…
I think the thinking at the time was this was well outside of the usual, sort of, working from home arrangements, so we didn’t contemplate that it would be remotely linked. Maybe remotely is the wrong term, but not linked to that. A clause 50 working from home agreement was very much needing to meet a certain bar as to maintaining operational requirements. Quite overtly, here we’re according all sorts of flexibility, trying to push – whilst we talked about meeting operational requirements, we were telling our managers to look at how they could adapt roles and duties to enable people to still be productive but kept them working from home if they were – if that’s what they wanted to do. So I think we were showing far more flexibility to enable people to take up these arrangements then you would in the ordinary course of somebody who happened to say that, you know, and to help their work/life balance they were looking to enter into a working from home agreement for a day or two a week.
…
…unlike a regular working from home arrangement or a formal working from home arrangement under clause 50, here was a situation where we wanted people to be thinking about these things but we were going to be far more flexible whether it was operational requirements around the setup, the equipment and what we may need to be able to get for them to assist them in shifting to home.
…
It was definitely a response to the specific circumstances of the pandemic.
…
We were trying to roll this out across the best part of 20,000 people. We weren’t requiring people to lodge these things online and attach them to – to our virtual HR system so process-wise, there were a number of differences but, equally, I don’t think it was a situation of ignore everything you’ve done for formal working from home arrangements and start completely from scratch.
131 After seeing the circulars from the ASU Mr Chapman was concerned that “our intention has been misunderstood and [asked] how do we clarify that to make that intention clear that this is about an emergency response”. He said:
…I was concerned that people may be confusing what we saw as a temporary interim emergency response as a longer term formal – formal arrangement that – that clearly the circumstances in which we were entering into the context in the Working From Home Guide on the front cover and the opening pages, etcetera, made very clear the intent and purpose, and it had been made clear that the ASU had obviously confused that with a formal working from home arrangement, and we needed to be clear that this was an emergency response, this was not our new way of operating forevermore. But it’s clarifying that intent to ensure that others were not confused.
…
… it was to avoid the risk that people confused this with the formal working from home agreements full stop, including all of the connotations that brings with it, such as a 12-month lifespan, etcetera, when we did not know how long these arrangements would be required and we knew that they were providing a greater level of flexibility working from home and reasonable adjustment, if I can use that term, in terms of what we were accepting that would not ordinarily be acceptable under our existing formal working from home arrangements.
132 Mr Chapman agreed that the suspension and termination provisions from cl 50 of the EA were not part of the WFH Guide, saying “if they weren’t clause 50 agreements, then those things didn’t actually apply”. He explained:
… you said it was a deliberate omission as if we intentionally sought to specifically exclude those sections from the enterprise agreement, whereas I would say you could say it was a deliberate omission, but in the context of we did not think these were clause 50 agreements, so that was not relevant.
133 Mr Chapman became aware that the ASU held a different view. He agreed that those provisions for suspension and termination could have been included in the WFH Guide. This exchange occurred:
And you deliberately omitted to include that because that would be inconsistent with the kind of flexibility that you were seeking from the arrangements under the guide?--- I – I think we did not include those – I think you are part correct. The other part, though, being we didn’t include it because these were not agreements we considered to be clause 50, so why would we specifically call out and incorporate things that were specified in clause 50 in – in a framework that was to our mind not about clause 50?
Well, I thought your evidence pretty clearly, Mr Chapman, was the only purpose of the guide was to protect the health and safety of staff?---Look, I think it’s – our number one driver was to protect the health and safety of our staff, but we equally, you know, we are an employer who is part of the public service supporting the community during a critical time, so we also needed to have an eye to and balance that very carefully with the execution of the responsibilities and accountabilities that government had – had required of us to support the community who was requiring an incredibly heightened level of support from the ATO during that time.
Yes. And you had the view that having included suspension and termination provisions from the clause would be inconsistent with that – a secondary purpose, if I can put it that way? ---No, I – I’m not sure – I think you’re – you may be ascribing too much – too much deliberate thought to that – we didn’t include it because it wasn’t specific. We didn’t think that it was clause 50. And this was about getting people out of the office in an appropriate way where we could, whilst still meeting operational requirements, and we did not know for how long because we could not forecast the future path of the pandemic.
134 Mr Chapman said that cl 50 arrangements were “very business-as-usual” arrangements, whereas “[w]e were in very unusual times and looking to provide greater flexibility than we would under clause 50, generally”. This exchange occurred:
For people who had formal working from home arrangements of, say, two days a week, the intention was that the guide would cover the remainder of their time?---Yes.
And you could have varied the formal arrangement to cover that additional time under the clause, couldn’t you; you accept that?---Yes, we could have.
And that – I’m sorry?---That would have been a – sorry. That would have been a – a very detailed time-consuming process, I imagine, pulling out of all of those existing ones. Here, we were looking to try and shift or prepare 20,000 people, so very – I would – I would say we were – we were – we were taking an approach that made life as easy as possible for our people and for our managers to actually enact this.
And if you had done that, that would have ensured that, for those employees, they could have stayed at home and protected their health and safety in the same way as the guide does; you agree with that?---Yes.
So I suggest to you that when you – when the 2 April iteration of the guide was produced, you had made a decision not to include termination and suspension arrangements in it?---I would – I – I think that’s more strongly-worded than I would say. We didn’t see that there was a need to, given the existing – given these were (1), in our view, not clause 50 agreements and (2) we had provision in there for people returning to the office where appropriate to do so.
And you changed the ATO policy on 9 April to steer employees to the guide during the pandemic?---It – it certainly notified people that – yes – that we had COVID emergency arrangements that they could follow, which were more streamlined.
And by the time 9 April had come about, you made that change for reasons that included that you thought that employees might ask for an arrangement under clause 50.1?---No. We – it in no way says people could not – the amendment didn’t – in no way say that people could not apply for a clause 50; in fact, I – I was advised that there were some people who – who sought clause 50 agreements during that period and did receive them. But we equally wanted our people to ensure that they were aware of the most streamlined way for them being able to enact in an emergency – approach that would enable them to work from home as quickly and as easily for their safety.
Well, by the time 2 April had come about, it’s the case, isn’t it, that a large section of your workforce had already transitioned to working from home?---Yes, a large – a large section had, but we were – we were ramping up our staff numbers significantly, so we had lots of new staff members joining to help us deal with the huge workload that came with the government’s COVID response work, so we – whilst we may have shifted a lot of our people to working from home, we were gradually still shifting more and more, whether they be existing staff or new staff, so there remained a number of people who were still entering into new agreements.
135 This exchange also occurred:
It’s the case, isn’t it, that the – a reason for why you wanted staff to be on the Working From Home Guide arrangement rather than the clause is so that they didn’t have access to the termination and suspension provisions that come with the guide – come with the clause?---The driver for having people on the Working From Home Guide was about keeping people safe and getting them home en masse as quickly as possible.
And- - -?---That was the intent.
That was the intent. You had achieved that intent when they started working at home, though, Mr Chapman. So another purpose of your – of asking and requiring employees to sign onto the guide was so that they didn’t have access to the termination and suspension provisions of the clause?---That was not the intent of the guide. The intent of the guide was to deal with an emergency situation which we did not – had not contemplated that the enterprise agreement clause catered for.
And the changes that were made to the policy and the direction that was given to employees to obtain an arrangement under the guide before they started working home were intended to prevent a circumstance arising in which an employee would ask for a clause 5[0].1 arrangement; do you agree with that?---No. We did not deny people asking for a clause 50 arrangement, but this arrangement offered far greater working from home time than we would ordinarily accept and provided greater reasonable adjustment in terms of what people were able to do.
You didn’t bar them, but you made it harder, didn’t you?---I don’t think – no, I disagree. I don’t think we made it harder; they were still there. We – we didn’t remove the policy. We – we didn’t shut down any of the links, to my knowledge; we left it all there, and I think the fact that people – some people did actually enter into those agreements would – would be evidence of that.
Because you were concerned that- - -?--- But we were making it as easy as possible for people to get to home in this environment. I think there is a level of – of deliberate intent here that was simply not what our focus was.
136 Mr Chapman gave evidence about the statement in the WFH Guide from 2 April 2020 onwards that “[i]nterim working from home arrangements confirmed during the COVID-19 response supersede any existing working from home agreements”. This exchange occurred:
And what it says, doesn’t it, quite clearly to a reader, that the interim working from home arrangement which is under the guide supersedes, in the sense that it replaces, an existing working from home agreement?---I don’t believe – “replace”, I think, would indicate cancellation of existing formal working from home arrangements, or agreements. That was not a step that we took. In fact, when we transitioned people back to level 1, we said “if you’ve got an existing working from home – formal working from home agreement, that remains in place until its expiry unless you and your manager engage in a review [and] seek to alter it”. So we did not cancel, so that’s not the – that’s not the effect of what those words had. I can’t say I was involved in the specific wording of “supersede”, but my understanding of it was that those existing – from what I was told around – somewhere around that time was that that word was about – well, the phrase was about saying those existing agreements remain in play but are overlayed by the COVID emergency arrangements which provided additional time and flexibility for people.
And they are overlayed – on the clear meaning of those words, they overlayed them to their exclusion, didn’t they, that’s what it says?---I – I don’t think that’s the case. I would say if they were excluded, that means we could effectively disregard them, and we did not.
Okay?---I don’t believe there was anybody we told them – who we told their clause 50 agreement was cancelled, or – and I’ve not had any specific examples raised to me where somebody was asked to do something that – in relation to their formal working from home days under their clause 50 agreement that was contrary to any of the arrangements or provisions of that agreement or the – or clause 50.
Yes. But it’s the case, isn’t it, that those words were intended to make it clear that the guide arrangements were the ones that employees needed to look to in order to work from home during the pandemic. It made the – isn’t that right?---They – it does not say that it could not enter into a clause 50 agreement, but this was certainly the arrangement that we wanted people to take forward, because it was streamlined, it was easier, it was more flexible in terms of the consideration being given to operational requirements and how people could be supported to actually take up this opportunity to protect their safety and welfare.
137 Mr Chapman also gave this evidence:
…It’s the case, isn’t it, Mr Chapman, that the ATO did not consult with the ASU about the content of the guide prior to it being developed?---Yes, given it was largely developed over those handful of days, that is correct. Had Mr Lapidos and the ASU taken up the offer from Ms Blaseotto for the meetings back when they were first requested, perhaps there would have been some opportunity to discuss in a bit more detail there, but in the absence of taking that up or those being scheduled, then no, I don’t believe – I don’t believe he would have. We certainly did talk about the intent on the Sunday evening, but we did not have a guide, per se, at that time ready to actually give Mr Lapidos the detail as to what was going in there.
2.10.3 Jeremy Geale
138 In his affidavit Mr Geale said that he was a Deputy Commissioner for Review and Dispute Resolution in the ATO and a member of the ATO Executive Committee from 1 January 2020 until 1 August 2020. The Commissioner appointed him to lead the ATO’s pandemic response.
139 Mr Geale explained that during the initial impact of COVID-19 in early March 2020, there was serious tension between the following competing concerns pressing upon him in his role at the ATO:
(a) how to best protect the health and wellbeing of ATO staff, their families and communities;
(b) how to ensure the Australian community continued to have confidence in the government, ATO and the economy, a critical part of which was to assess how the ATO could continue to provide critical services and support and deliver on the ATO’s role in the Government’s response to the pandemic; and
(c) how to most efficiently and effectively deploy the ATO’s limited technical and technological resources in order to enable ATO staff to perform work from home as and when required to deliver critical services.
140 His first priority was to provide the ATO staff with the support they needed and to ensure their health and wellbeing. In early March 2020, he was receiving twice daily reports from the Department of Health, which included data on the number of COVID-19 cases and the number of lives lost. Most concerning was the estimated fatality rate for COVID-19 in other countries of 4.6 per cent of the population. At the time, based on the information he was receiving, his hypothesis was that most ATO staff would get the virus over a short period of time due to the spread of the virus throughout the community. If that hypothesis played out in fact, the ATO was facing a significant loss of ATO staff on a permanent or temporary basis due to the virus. Whilst hindsight might moderate the potential for that to have occurred, in the environment that existed at that time, it was essential to put in place appropriate plans to cater for that scenario and the many unknowns regarding the transmission of the virus, its impact on mortality and the long term health impacts of the virus.
141 Mr Geale said:
The information available through the general media, the Department of Health and other government entities suggested that the virus was highly transmissible and was likely to be airborne. There were also early reports that transmission could be limited by restricting the movement of people… For this reason, as it became apparent that there was transmission of the virus in Australia, it was important for the ATO to limit to the extent it could the potential exposure of ATO staff to the virus and, if they were already a carrier, the potential for them to spread the virus. This was primarily achieved by limiting the work-related movement of staff or where that was not possible, reducing the number of people in offices. The ATO also had to remain mindful and respectful of the guidance and operational directions coming from relevant state and federal government agencies, such as public health orders and statements from the Australian Public Service Commissioner (APSC), the Prime Minister, the State Premiers and various Chief Health Officers and Health Ministers.
142 The ATO also had to ensure continuing services to:
…support the delivery of critical services and the Government’s stimulus initiatives, to the extent this could be achieved safely. This included new stimulus programs introduced urgently to support the economy and the community, the first of which, cashflow boost, was announced by the Government on 12 March 2020. We were also working on highly confidential proposals for further stimulus proposals, including the proposal that was later implemented as JobKeeper. Finally, we were already in critical planning for tax time, which would play a particularly critical role in an economic depression by allowing access to tax refunds. For the government and for the community to maintain confidence in the system, to the extent it was possible to do so safely, we had to continue to deliver those programs, all within the highly uncertain COVID-19 environment.
143 At the time it was unclear whether all staff would be required to work from home across the country, or only those staff who were not providing a critical function. Mr Geale said:
The prospect of migrating the whole or large parts of the ATO workforce to work away from the office to work from home was extremely daunting. It would give rise to significant logistical and operational issues such as protecting the security and integrity of the ATO IT systems, the obviously confidential and highly sensitive information on which people would be working, the operational requirements across the board and at the local level, doing the very best to have staff working productively and effectively whilst ensuring resources were allocated to the critical functions which were to be given priority at the time.
144 Mr Geale continued:
I was initially concerned that the ATO did not have the technical and technological capacity to facilitate enough staff, or even all critical staff, to work from home. At that time a limited number of staff had ATO laptops, or were provided with access to an online platform called the Virtual Digital Platform (VDP) that enabled them to access ATO systems remotely. It was my understanding that the ATO had a limited number of laptops and that the capacity of the VDP was limited to about 1,500 concurrent users.
I was working on the understanding that as at early March 2020 the ATO had capacity for about 3,000 ATO staff to work from home. This was unlikely to be sufficient to maintain the critical functions, let alone keep the entire workforce productive if working from home.
We worked to identify the critical functions and how we could access the technological capacity we currently had to continue to perform or ramp up those critical functions, whilst also exploring ways to increase our technological capacity going forward.
…
The escalating pandemic crisis and rolling government announcements on restrictions created great uncertainty. The pressure of that uncertainty was exacerbated by the significant increase in workload and my concerns about the ATO’s technological capacity to support working from home. Even if the ATO could build sufficient capacity, we did not know how Australia’s telecommunications network would cope with the majority of the Australian population working from home.
145 Mr Geale said:
Ms Curtis and I took total responsibility for the oversight of the making and then the promulgation of the WFH Guide to all ATO staff, including those who seem to be the subject of the claims being brought by the ASU in this proceeding. Given our level of seniority and the multitude of matters demanding our attention at that critical time, we drew on the resources of others to do much of the work, but the ultimate decision-making responsibility for the content and form of the WFH Guide rested with me and Ms Curtis.
146 Mr Geale was conscious that the WFH Guide should not set the expectation that working from home would become the “new normal” but make clear that the move of as many staff as possible to work from home was intended purely as a direct response to the pandemic crisis, and as an important part of the ATO’s pandemic response. He knew that the ATO had a working from home policy and that the EA made provision for working from home, but had no familiarity with either document. Mr Geale said that the ATO needed to ensure that the terms of the WFH Guide were consistent with the relevant industrial instruments and policies in place which governed the terms and conditions of all ATO staff and this responsibility was dealt with by Mr Chapman, Mr Moore, and Mr Gyetvay. Mr Geale said:
In the extraordinary circumstances of the onset of the global pandemic and the ATO’s response, I was particularly conscious of the need to treat ATO staff fairly, including acting in accordance with relevant workplace rights. It was a difficult and stressful time for all of the ATO staff. At no stage did I intend, or did I envisage, that we would act in a way which would diminish the entitlements of ATO staff or do anything other than comply with our obligations under the law.
147 Mr Geale said:
The terms of the ATO Enterprise Agreement were not at the forefront of my mind when compiling the WFH Guide. The primary purpose of the WFH Guide was to protect the health and safety of staff by making it easier for them to work from home. For those who were already working from home for part of the week, it was intended to make it easier for them to work from home for the whole of the week, with the primary purpose of adhering to the government’s basic message that those who can work from home should work from home – to protect their health and safety by avoiding any preventable exposure to a workplace where they may encounter someone who is suffering from the virus. There was no reason related to any entitlement to work from home, or any specific aspect of any existing or prospective formal working from home agreement, under the ATO Enterprise Agreement, which operated on my mind when compiling the WFH Guide.
The WFH Guide was not intended to, and did not, address the situation where an ATO employee was already working from home under a formal working from home agreement.
148 In respect of the statement in the WFH Guide included from 2 April 2020, that “[i]nterim working from home arrangements confirmed during the COVID-19 response supersede any existing working from home agreements”, Mr Geale said:
It was not the intention to extinguish or diminish any existing and current formal working from home agreements made in accordance with the ATO Enterprise Agreement or to diminish or detract from any rights or entitlements that the ATO Enterprise Agreement conferred upon ATO employees. To the contrary, the WFH Guide was intended to benefit employees and to protect their health and safety, by giving them the option of working from home.
Consistent with our intention and obligation to protect the health and safety of ATO staff, the amendment made it clear that those employees with existing working from home agreements did not need to attend their workplace and could, consistent with other employees work from home for the entirety of their working hours, not just those hours under their current or existing working from home agreement. That was the reason for the inclusion of the above sentence on page 4. To the extent that a formal working from home agreement was in place, for example, to work from home three days a week, the WFH Guide “superseded” that only in the sense that the employee could then work from home five days per week. It was intended to refer to the additional hours that people would be working from home, above and beyond the hours that an employee may already have been working from home.
At no stage in any consultation at which I was present or involved, and to the best of my knowledge, at no stage other than for the purposes of these proceedings, has the ASU suggested that, by the above sentence, the ATO did, or sought to, extinguish or interfere with any existing or potential formal working from home agreements. ATO employees remained free and able to seek a formal working from home agreement in accordance with the relevant provisions of the ATO Enterprise Agreement throughout.
149 Mr Geale said that the statement that “[w]hen working from home, you are required to: .... [a]ttend the workplace when requested by your manager where appropriate and possible to do so”:
addressed the arrangements that were put in place to facilitate staff working from home due to the onset of the COVID-19 pandemic. It did not address the circumstance of a person working from home in accordance with a formal working from home agreement under clause 50.1 of the ATO Enterprise Agreement. It in no way required a person with a formal working from home agreement to attend the workplace for the hours which they were entitled, under their formal agreement, to work from home, when requested by their manager. It was not, and it was not of itself capable of being, or intended to be, applied to suspend or terminate any existing formal working from home agreement.
150 In oral evidence Mr Geale gave evidence to the effect that cl 50 of the EA was not a reason for the inclusion of any part of the WFH Guide over its versions.
151 In cross-examination, Mr Geale said that the WFH Guide was intended to be a means whereby ATO employees could work from home during the pandemic. He gave this evidence:
But it was the case, isn’t it, that in that week of the 26th, the Prime Minister announced that the Australian Public Service would be declared essential workers; do you remember that?---There was a – there was a direction to that effect. Yes.
Yes. And the effect of that direction, even in relation to States where there lockdown orders, used that – your staff – the ATO staff could be – could go to the office as essential workers?---They could. But there was also a direction about that time that we were also to enable our workers to work from home if they could work from home. Not from the Prime Minister, but I think that came from the APS – the Australian Public Service Commission. I think that came from them. But there were other orders in place, or directions.
Yes. And so you were under an obligation through the APSC, the Australian Public Service Commissioner, to enable workers to work [from] home if they could?---Yes.
But at all times the working from home arrangements were voluntary between the worker and the ATO. That’s correct, isn’t it?---Yes.
152 This exchange occurred:
But one thing that was an aspect that you were keen to address in your COVID response was the need to bring people back from time-to-time to address what you regarded as critical priorities?---Well, it was to ensure that we had the flexibility to do that should the need arise.
Yes. That’s right. You wanted the flexibility to bring people back to address critical priorities?---Well, probably a better way of saying it is that we wanted – we had to serve the community, and we had to maintain critical operations, but at the same time we wanted to facilitate, where possible, people working from home.
153 In another exchange this occurred:
Well, Mr Geale, when you were devising this guide on the weekend of the 21st and the 22nd, I don’t suggest you were doing it personally, but you were – you knew it was happening and, ultimately, you approved it; is that right?---That’s right.
And you knew it was about the subject of working from home?---Yes.
Would you not have asked a question of your workplace relations experts as to why you were doing this when there was a clause in the agreement?---The view, which I had, and I think it was consistent with what was being told to me was we were facilitating staff to work from home. So we were giving them something. We were giving them an opportunity and it was to deal with, you know, a scenario where (1) we were about to be either forced to do it by way of government direction or forced in the sense of staff will just not turn up to work because of the anxiety.
Yes?---So it was to facilitate it in that context. I don’t think it was contemplated that it was to be the type of working from home arrangement covered by the formal working from home arrangement that I was familiar with. It wasn’t in that nature.
Well, but I think you gave some evidence that – earlier on – that the guide arrangements was one way of achieving working from home- - -?---Yes.
- - -during the pandemic?---Yes.
Was the other way a former [sic] working from home agreement?---So that is another way. So we – you could have had former [sic] working from home agreement. There was nothing to stop people from having a working from home arrangement. And there were also generally flexible arrangements. I mean, people prior to this and continue as far as I’m aware to have flexible arrangements with their manager for working from home.
So is your evidence you really didn’t care which way an employee went: the guide or the clause?---I think I was dealing with 20,000 employees- - -
Yes?--- - - -under pressure and with little time ..... need to manage that in a sensible way.
Yes?---And the working from home guide was not just concerned with issues with regards to, you know, employment rights or anything in that sense. I wanted them to use the right technology, have the right equipment.
Yes?---You know, ensure their workplace was – at home was safe. So a whole lot of other things, which I would want them to have done which were covered by the work – working from home guide, so, yes, I would have had strong preference to following the working from home guide because of those other aspects.
But you could have – it was perfectly possible, was it not, to simply produce a specific set of arrangements to deal with the circumstances of the pandemic and then allow people to make the arrangement under the clause?---That – in hindsight, that may well have been possible at the time. At which we were dealing with it, I had very clear directions to my team. We had to focus on the 80 per cent, not the 20 per cent. Most of my team over that weekend and probably for the most previous week had been working 20 plus hours a day to deal – this wasn’t the only issue that we had on our plate. I was also managing JobKeeper, cashflow boost, you know, many, many other operational issues. Yes, there were many possibilities on which we could have structured it. This is how we structured it.
154 In respect of the statement in the WFH Guide about employees attending the office when requested by a manager (where appropriate and possible to do so), Mr Geale said the:
…intention of this was to enable workers to work from home, and to enable that to occur we needed the flexibility to be able to require them to come back at some point in time. The other choice was if we weren’t able to have that flexibility, we may not be able to let employees work from home. So it’s a slightly different way of, I think, saying what you ..... like, this was to facilitate people to work from home. And one way which we could facilitate that is knowing that we had the flexibility that we may need to call them back if the circumstances changed.
155 Mr Geale confirmed that had any employee wished to pursue a formal work from home arrangement under cl 50 of the EA during the pandemic, he would have had no concern if that was what could be agreed between the employee and their manager. This exchange occurred:
Including being – including in an event being subject to the termination and suspension conditions that are contained in clause 50?---Well, if that’s – I mean, I’m not – if that’s how those agreements do follow and operate, then I would expect those to be followed.
Yes, but my point is this: for the pandemic, it must follow from your evidence that it didn’t matter from your point of view whether someone was subject to notice or the suspension requirements provided that they were able to work from home in a way that corresponded with the [kinds] of considerations that you’ve articulated in the guide?---That’s right.
So notice was simply not a barrier to working from home during the COVID pandemic?---Well, notice was not something I specifically put my mind other than, you know, in – throughout these circumstances I reiterated on a number of occasions the need for flexibility. I expected the ATO to be flexible and I expected our employees to be flexible- - -
Yes?--- - - -or dynamic to deal with the circumstances.
156 In respect of the statement about the interim pandemic arrangements superseding formal work from home arrangements, Mr Geale said he did not recall speaking with Mr Moore about those words but he had read the WFH Guide as a whole. He agreed the intention was to make clear that those employees with existing working from home agreements did not need to attend their workplace but, with hindsight, the statement could have been clearer. Nevertheless “that …was I had in mind at the time when I reviewed that. And I thought it adequately addressed it”.
2.10.4 Anne Blaseotto
157 In her affidavit Ms Blaseotto said that she had been in the Workplace Relations area of the ATO since July 2013, reporting to Mr Moore.
158 It was part of Ms Blaseotto’s duties to liaise with representatives from the ASU and CPSU in relation to workplace and industrial issues that affected the ATO’s employees as a result of the ATO’s transition process to working from home full time during the pandemic. This included consultation about the ATO’s response to COVID-19 which included the development of the WFH Guide.
159 Ms Blaseotto said that in early-to-mid March 2020, Mr Moore told her that they needed to engage with and involve the unions at an early stage regarding the potential of the COVID-19 pandemic. As a result, on Friday, 13 March 2020, she sent an email to Mr Lapidos of the ASU with the subject heading “Meetings re COVID-19” to invite the ASU to set up twice weekly meetings. As noted, Mr Lapidos did not respond. She made a similar invitation to the CPSU. The CPSU took up the opportunity to set up twice weekly meetings with the ATO and those twice weekly meetings commenced on 17 March 2020.
160 On 16 March 2020, Mr Lapidos sent an email to the Commissioner setting out concerns about the ATO’s response to the pandemic. Ms Blaseotto sent a reply on the same day attaching her email of 13 March 2020. Again, she received no response. On 17 March 2020, Mr Chapman sent an email to Mr Lapidos in response to his email and letter to the Commissioner which again reiterated that the ATO was willing to discuss COVID-19 related issues with the ASU at twice weekly meetings. On 18 March 2020, Ms Blaseotto sent an email to Mr Lapidos and Ms Tucker, with the subject heading “Information provided to ATO employees about COVID-19”, attaching numerous documents that had been provided to staff and managers. On 23 March 2020, Ms Blaseotto sent an email to Mr Lapidos and Ms Tucker with the subject heading “FW: All staff: COVID-19-Video update from Jeremy Geale” and a copy of the first iteration of the WFH Guide. On 24 March 2020, Mr Lapidos sent Ms Blaseotto an email attaching a document titled “ATO Guide to COVID” and requesting that she provide him with a “proper copy”. She did so the following day, 25 March 2020.
161 On 25 March 2020, Ms Blaseotto attended a meeting of the NCF, which is a body established by cl 6 of the EA, and which facilitates consultation between the ATO, the CPSU, and the ASU on industrial matters relating to the EA. Members of the ASU, including Mr Lapidos, were in attendance. On 27 March 2020, the NCF meeting that commenced on 25 March was reconvened. She again attended, as did members of the ASU, including Mr Lapidos.
162 On 31 March 2020, Ms Blaseotto had an email exchange with Mr Lapidos regarding changes proposed by the ASU to the WFH Guide. Later that day she sent an email to Ms Horvath (Director of Culture (Leadership) in the ATO) proposing amended content to the WFH Guide as agreed with the ASU. On 1 April 2020, she sent an email to Mr Lapidos setting out some changes which she had made to the wording of the WFH Guide that had been discussed in the emails the day before. She then received a telephone call from Mr Lapidos during which he confirmed that he was content with the proposed changes. During the telephone conversation, they also discussed that there were no end dates to the COVID-19 working at home arrangements and that she had recommended that the ATO set review dates. Mr Lapidos thought that review dates were okay but noted that they needed to give manager guidance on how to set review dates. He also wanted it to be made clear that the working at home arrangements were “formal and agreed”. Ms Blaseotto relayed that feedback to Mr Moore and Mr Gyetvay by email.
163 On 2 April 2020, a further iteration of the WFH Guide was provided to staff by way of an all-ATO staff email. Ms Blaseotto provided Mr Lapidos with the all-staff communication, a copy of the updated WFH Guide, leave provisions information and updated FAQs on the same day.
164 Ms Blaseotto said that:
in the first week of April 2020, Mr Moore, Mr Chapman and I repeated the ATO’s invitation to the ASU to meet twice per week to consult about issues relating to the ATO’s response to the pandemic. This was initially proposed by Mr Chapman in an email to Mr Lapidos on 31 March 2020 (of which I was provided a copy), and then the arrangements were made through a chain of emails between Mr Lapidos, Mr Moore, and myself. Mr Lapidos finally accepted the proposal to meet twice weekly on 6 April 2020.
165 Consultation meetings with the ASU and Mr Moore and Ms Blaseotto occurred thereafter on 9, 14, 15, 17, 20, 22, 24, and 29 April 2020. Ms Blaseotto took contemporaneous notes of these meetings.
166 In oral evidence Ms Blaseotto said, in effect, that cl 50 of the EA was not a reason for any provision of the WFH Guide in its various versions.
167 In cross-examination Ms Blaseotto confirmed that she was not a part of the team responsible for the decision-making process with respect to the WFH Guide. Mr Moore and others were responsible for that process.
168 Ms Blaseotto referred to a note of the meeting on 24 April 2020 written by Ms Tucker which attributed to Mr Moore the statement that (in the context of Mr Lapidos asking whether cl 50 of the EA applied to the WFH Guide arrangements) “No. I’m trying to dance around that issue”. Ms Blaseotto said she did not recall Mr Moore saying those words.
2.10.5 Christopher Gyetvay
169 In his affidavit Mr Gyetvay said that from October 2018 to October 2020, he was the Assistant Commissioner, Staff Experience in the ATO.
170 He was directly involved in the making of the WFH Guide in its various versions. He was responsible for content concerning work health and safety, which included the flow charts and associated material concerning staying connected, the workplace environment and physical activity and the like. His first involvement with the making of the WFH Guide was on about Thursday, 19 March 2020. From that day he worked closely with Misha Kaur, Assistant Commissioner of ATO Design, to pull together the first iteration of the WFH Guide over that weekend. The WFH Guide included material that touched on the responsibility of a number of different groups at the ATO, including other groups within ATO People, and he sought and received input from those groups. Some of this co-ordination was delegated to other members of his team to collate via directors in other work areas. Mr Moore was ultimately responsible for making decisions about the content in the WFH Guide concerning industrial matters.
171 Mr Gyetvay said that the WFH Guide was intended to provide an interim solution and an emergency response to enable over 12,000 ATO staff to quickly and safely move from working in the office to working at home. The purpose of the WFH Guide was to keep people safe whilst also ensuring IT access and information security. In drafting content for the WFH Guide, it was important to give staff comfort that the ATO was doing all that it could to keep people safe from the virus and to ensure that they had a safe work from home set up.
172 According to Mr Gyetvay, given the unprecedented situation, the ATO was also allowing people to take home ATO equipment and technology, such as chairs, keyboards and monitors. The WFH Guide included a process to identify and document equipment that staff took from the office so that staff, and in turn, the ATO, could be accountable for those items as Commonwealth property. Ordinarily, when an employee enters into a formal working from home agreement under cl 50.1 of the EA, they are creating an arrangement for their home to be an additional place of work on set days each week or on ad hoc days. Employees covered by the EA who were entitled to seek a formal working from home agreement would not usually take equipment from their workstations such as chairs, monitors and keyboards for their home office under those arrangements. The WFH Guide put in place arrangements that anticipated that the home of each staff member would be an alternative place of work during the pandemic emergency. In those circumstances, it was appropriate where required to remove from the office necessary hardware in order to set up the alternative place of work.
173 Further, under a cl 50.1 formal working from home agreement, an employee would initiate the application process to seek approval from their manager to work from home for nominated days, with their manager determining whether this could be accommodated under business requirements. Under the WFH Guide (and associated communications), the ATO made working from home available, on a voluntary basis, to anyone who wished to undertake the arrangement to enhance their own safety and who could meet the requirements as set out in the WFH Guide.
174 On 24 March 2020, Ms Blaseotto sent Mr Gyetvay a copy of a circular sent by Mr Lapidos at 11:17am that day titled “Advice on working from home”. Ms Blaseotto noted in her cover email that “staff are asking many questions on the basis of this email”. He was surprised to read the content of Mr Lapidos’ circular, as reflected in the content of his response at 4:35pm. He asked Ms Blaseotto whether the EA supported Mr Lapidos’ proposition that the ATO is responsible to ensure that an employee has a place at home that will be suitable to meet their health and safety needs if the employee is voluntarily working from home. Mr Chapman then asked whether the WFH Guide checklists would be considered a formal working from home agreement and what they may be needed in order to clarify that they did not constitute a formal working from home agreement under the EA. Mr Gyetvay responded at 5:05pm to the effect that they should review all communications and the WFH Guide to specify that those arrangements apply during the period of the COVID-19 response and were approved interim WFH arrangements, not formal working from home agreements. In response to his suggestion, Mr Skinner confirmed that he and John McCarthy (a member of Mr Gyetvay’s team) would review the material to ensure that this was covered. The intention of the WFH Guide remained consistent throughout – that the WFH Guide was to cover interim arrangements necessary to respond to the pandemic emergency.
175 In oral evidence Mr Gyetvay said that, in effect, cl 50 of the EA was not part of the reason for the WFH Guide or its provisions.
176 In respect of the words relating to attending the workplace “when requested by your man[a]ger where appropriate and possible to do so”, Mr Gyetvay said:
Certainly my understanding of – my recollection of why we would have included those – those words were in relation to giving people the ability so if they needed to attend the office for any reason – that could be training, to collect IT, to update their software, it could have been any number of reasons – that the – it was to ensure that a manager was being reasonable and ensuring that the manager and the employee had a discussion to account for things such as, “I’m sorry, I can’t attend because I’m COVID positive or I’m in isolation or I have caring responsibilities or I can’t have – I don’t have transport available to me.” So it’s obviously about having a conversation around reasonableness of having the – an agreement as to when they would be able to attend.
177 In cross-examination, Mr Gyetvay said that he knew about cl 50 of the EA and the ATO’s associated Working at home policy before being involved in the preparation of the WFH Guide in response to the pandemic. Mr Moore had oversight of the industrial relations issues relating to the WFH Guide. Mr Gyetvay did not believe that at any time “it was mentioned or discussed in the context of a formal working from home arrangement as part of clause 50” when preparing the WFH Guide. The WFH Guide was:
not around balancing work and life arrangements, it was around emergency alternative – alternative working arrangements, rather than an additional place to work, and that we would be very unusual and somewhat unprecedented, I would say, to set up a work from – a formal work from home arrangement whereby we would tell people, “sure, take your desk – sorry, take your keyboard, your mouse, your monitor and other equipment home” as part of that formal work from home arrangement on the basis that it would normally be a balance of working from home and working from the office.
178 Mr Gyetvay’s understanding of cl 50 of the EA was that “the intent of the clause was to balance work and personal arrangements so that people had personal flexibility, which is quite a different intent from what we were looking to do through the work from home guide”.
179 Mr Gyetvay said, in respect of the communications at the time from Mr Lapidos of the ASU:
…from our perspective, it seemed that Mr Lapidos had a different understanding of what the work from home guide was, ie, a formal agreement, whereas, as we’ve said throughout, there was no clause 50 formal arrangement or thought around clause 50 from the get-go of the design of the work from home guide.
180 These exchanges occurred:
Well there’s no motivation for you to change, but what’s the problem about these arrangements being made under clause 50? They would achieve the same end, wouldn’t they, working from home?---No, they – well, I – again, you had probably best ask those sorts of questions to the person who was the subject matter expert at the time. However, clause 50, as we talked about at the beginning of this, was – is envisaged to be a different process by which – as a work/life balance one whereby there would be a different – different policy would apply in terms of – as I say, the provision of equipment; taking home desks, taking home monitors, taking home chairs, those sorts of things. So there is a differentiation between clause 50 when you think about it, at this particular point in time.
…
Because the reality is, isn’t it, that what you created under the guide was so similar to what was available under the clause that anyone reading the guide would conclude that they were getting exactly what the clause provided them as a term and condition of their employment?---That would not be my interpretation, no.
And you were motivated by the content of the guide to make it clear in the way that you have described that we need to differentiate the two things so that employees didn’t get the benefit of a formal working from home agreement?---No. I would say the benefit was to be able to voluntarily work from home at any particular point in time 100 per cent, which would exceed the benefit from a working from home agreement in its traditional form.
2.10.6 Craig Skinner
181 In his affidavit Mr Skinner said that since September 2019, he has held the position of Director in the Workforce Adjustment and Remuneration team which is part of the Workplace Relations function of ATO People. His team deals with employment policy, workforce adjustments and remuneration.
182 Mr Skinner said that in late 2019 and the early part of 2020, the ATO was faced with people having to work from home at short notice due to the bushfires that were occurring, particularly in the eastern States. Prior to the bushfires, when people had worked from home, many had done so generally on an ad hoc basis. As such, many people had not worked through all of the assurances the ATO required for them to safely work from home. In early 2020, Mr Moore asked Mr Skinner to develop a checklist in order to ensure that ATO processes for working at home were efficient to confirm matters such as work health and safety.
183 In response to the onset of the COVID-19 pandemic in March 2020, the development of the checklist was fast tracked. It became apparent that the ATO would need to have assurances around work health and safety and security, given that a large number of its workforce may be moved to working from home. Mr Skinner was then tasked with putting together the “COVID-19 Work from Home Checklist” which later appeared in a similar form in the early iterations of the WFH Guide.
184 The purpose of the creation of the COVID-19 Work from Home Checklist was to provide information to facilitate a conversation between managers and employees to ensure matters such as work health and safety, security, productivity and operational requirements. Mr Skinner was told by Mr Moore, and understood and accepted that, what he was involved in developing was a COVID-19 arrangement which was separate from the working from home provisions of the EA. He recalled that amendments were made to the ATO’s existing Working at home policy to point people to the WFH Guide during the ATO’s pandemic response, given that the COVID-19 working at home arrangements did not fall within the scope of that policy.
185 In oral evidence Mr Skinner said, in effect, that cl 50 of the EA was not a reason for any of the provisions of the WFH Guide he had prepared.
186 In cross-examination Mr Skinner was asked about his email of 24 March 2020 at 5:37pm in which Mr Skinner said that “[w]e may need to adjust some language and may need further advice on the requirements of clause 50 of the EA”. He denied that he had not referred to the following words in this email “and may need further advice on the requirements of clause 50 of the EA” in his affidavit because he did not want to highlight those words. He said the need for further advice was his initial thought and it was later clarified to him that “the COVID arrangements were not to be formal agreements under clause 50”. He then was of the view that “[w]ell, if these are not to be formal agreements, then we may need to adjust some language and make sure that there’s nothing in them that can be perceived to be a formal agreement under clause 50”. He said “[w]hat I was concerned about was that they might be perceived to be formal agreements under clause 50 after it had been clarified to me that these COVID arrangements were not to be formal agreements”.
2.10.7 Jeremy Moore
187 In his affidavit Mr Moore said that he is an Assistant Commissioner for Workplace Relations in ATO People. He reports to Mr Chapman. Ms Blaseotto and Mr Skinner report to him. He is responsible for overseeing the work of the Workplace Relations Branch.
188 Mr Moore said the EA applies to all employees of the ATO who are employed under the PS Act in classifications at and below the APS Executive Level 2. It does not cover Senior Executive Service (SES) Band employees or those performing contracting work at the ATO and only has limited application in relation to casual employees.
189 Mr Moore said cl 6 of the EA provides for the NCF to facilitate communication and consultation on ATO-wide employment and workplace relations matters. The NCF is convened (and usually chaired) by Mr Chapman. Ms Blaseotto and Mr Moore both attend NCF meetings as advisors. Both the ASU and the CPSU are represented at the NCF.
190 Mr Moore said cl 8 of the EA is applied in a range of different ways and at varying levels of formality. Ms Blaseotto and he speak with Mr Lapidos on a regular basis about a range of issues concerning matters arising under the EA in a manner which would constitute consultation under cl 8.
191 According to Mr Moore:
The …pandemic response consisted of a range of very significant and very urgent matters, many of which touched on important logistical and operational matters outside the control of the ATO. There was no scope within the provisions of the ATO Enterprise Agreement as they existed to manage the impact of the exceptional circumstances of the onset of the COVID-19 pandemic on the logistical and operational matters of such significance, most particularly in relation to the measures that had to be taken to encourage staff to work from home. The only provision in the ATO Enterprise Agreement dealing with working from home arrangements is clause 50. It contemplated a formal working from home agreement under clause 50.1 and ad hoc working from home arrangements under clause 50.7. What we were faced with was a massive logistical exercise in migrating the entire A TO workforce, or significant parts of it, and not just those employees to whom the ATO Enterprise Agreement applied, to work from home. This was not something contemplated by the ATO working from home policy either.
In the circumstances, as things could not be dealt with under the ATO Enterprise Agreement and the existing ATO working from home policy, it was my view that the specific consultation obligations in clause 8 of the A TO Enterprise Agreement did not apply. Of course, that did not mean that the ATO would not actively seek to engage with the CPSU and the ASU in relation to all matters relating to the ATO’s pandemic response. That is what we did do. The consultation took forms which were appropriate to the circumstances, most particularly the scale and urgency of the exercise In migrating people to a work from home situation in the face of ever changing (sometime daily or even more frequently) public health orders and instructions from government, all directed to protecting the health and safety of the community in the fact of the onset of the pandemic.
192 According to Mr Moore:
…the ATO Working From Home COVID-19 Response (WFH Guide) was first promulgated to all ATO staff on 23 March 2020. It was constructed over the weekend of 21 and 22 March 2020. It is wrong to characterise the WFH Guide as a policy. It was, as the footer on it acknowledged, a living document, or a continual work in progress. Given the urgency of the situation, it simply was not practical or possible to engage with the unions in a line by line analysis of its content… prior to its promulgation on 23 March 2020. From that point on, the WFH Guide was subject to ongoing review and change and Mr Lapidos provided important input into its content, through the discussions with me, Ms Blaseotto and others, and through the messages he was circulating to his membership.
Whilst I may not have agreed with some of the things he said, most particularly that a work from home arrangement under the WFH Guide was a formal working from home agreement under clause 50.1 of the ATO Enterprise Agreement, adjustments were made to the language of the WFH Guide to clarify any uncertainty which may have been created or drawn to our attention by communications originating from Mr Lapidos.
193 Mr Moore said:
Another important distinction is to be made in relation to consultation in relation to matters the subject of the ATO’s pandemic response. Consultation under the workplace health and safety legislation in place around the country was primarily with the relevant health and safety representatives (HSRs). Many of the HSRs were also union delegates. Given the evolving situation, it was “reasonably practicable” to use a more abbreviated process than might otherwise have been the case. As far as I am aware none of the HSRs (be they union delegates or not) requested Mr Lapidos to be involved in this process of consultation in accordance with the relevant provisions of the applicable workplace health and safety legislation.
194 Mr Moore said that he was:
directly involved in the making of the WFH Guide and subsequent amendments to that guide. It was only one aspect of a broad ranging response by the ATO to the onset of the pandemic in circumstances where, due to the onset of the pandemic and the introduction of new programs and the like, a significantly increased demand was being imposed upon the resources of the ATO.
195 Mr Moore said:
By early March 2020, it was apparent that the COVID-19 pandemic was going to have a significant impact on the entire ATO workforce.
Following discussions with Mr Chapman, we decided that it was important to engage with the unions on a regular basis get their input into the measures the ATO would be taking to respond to the challenges presented by the COVID-19 pandemic, and also to assist with messaging those measures to the workforce. With this in mind, on my instruction, on 13 March 2020, Anne Blaseotto reached out to Mr Lapidos by email to arrange bi-weekly meetings with the ASU… and the CPSU.
The CPSU was responsive to this invitation and we commenced bi-weekly meetings with the CPSU from Tuesday 17 March 2020.
Unfortunately, the ASU did not respond in the same way.
196 Mr Moore explained, amongst other things, that:
In a circular email to ASU members dated 24 March 2020, Mr Lapidos was suggesting that clause 50 of the ATO Enterprise Agreement applied to the circumstances where people were working from home as part of the ATO pandemic response. He was suggesting that people would have to be given notice of any return to work. That did not accord with what was intended by the working from home arrangements under the WFH Guide…
This resulted in an email exchange between me and Craig Skinner. Mr Skinner had reviewed the WFH Guide check list to take into account the concern that it might be interpreted as dealing with a formal working from home agreement under clause 50 of the ATO Enterprise Agreement. Mr Skinner offered his initial thoughts by email dated 24 March 2020… I responded on the morning of 25 March 2020 at 7:09am… In my email, I invited consideration of whether we should include an addition to the WFH Guide to say that we are giving notice to all of those who were then already on existing formal working from home agreements in accordance with the terms of those agreements. This was not done. Rather, the WFH Guide was then amended so that it was made clear that agreement by the manager and employee was not required in response to every item in the checklist. The checklist was just a facility to assist managers and employees to understand the need to provide a safe and secure working environment at home and determine if other working arrangements were required…
Also in response to the potential for confusion between formal working from home agreements under clause 50.1 of the ATO Enterprise Agreement, I authorised a change to the WFH Guide which inserted a sentence to the effect that “Interim working from home arrangements confirmed during the COVID-19 response supersede any existing working from home agreements”. The purpose of this change was to give staff on existing formal working from home agreements under clause 50.1 of the ATO Enterprise Agreement that they could work from home in accordance with the arrangements under the WFH Guide, so as to avoid exposure to risks to their health and safety by attending work outside their existing working from home hours, during the ATO pandemic response.
197 Mr Moore said:
At the time of developing the WFH Guide, and making changes to the WFH Guide, I did not consider that the consultation obligations in clause 8.1 (a) of the ATO Enterprise Agreement applied because the WFH Guide was not a guide that related to the provisions of the ATO Enterprise Agreement. It was not concerned with formal working from home agreements under clause 50. Nevertheless, having succeeded in engaging Mr Lapidos in discussions about the ATO pandemic response from the conference on the Sunday evening, 22 March 2020, we continued to welcome any input he wished to offer in relation to the ATO’s response and, as part of that, the terms of the WFH Guide.
198 Mr Moore said that:
During the ATO Pandemic Response employees who requested a formal working at home agreement had that request considered according to the usual process provided for under clause 50.1 of the ATO Enterprise Agreement.
199 In oral evidence Mr Moore gave evidence to the effect that cl 50 of the EA was not a reason for any provision of the WFH Guide. He explained:
…we were dealing with a rapidly evolving and very uncertain situation. Our – my colleagues in our ..... were trying to [roll] out systems as quickly as they could to allow more widespread working from home than had been available previously. But there was still many unknowns about the stability of the systems, and indeed, if you could access all the systems we utilise while working from home. So we wanted to make it clear that, if we couldn’t support working from home, people would have to come return back into the office. Also at that stage, it wasn’t clear to us what the government would require of us in terms of the COVID response, and so we wanted to make sure that people understood that there was that requirement to return if we needed to and if it was possible for them to do so.
200 In cross-examination Mr Moore said:
…the formal working from home arrangements [under cl 50 of the EA and associated policy] stipulate that they’re to be reviewed every 12 months. The guide was pushing managers to review far more frequently than that.
201 Mr Moore said that when the WFH Guide was being prepared he instructed Mr Skinner to ensure “that these weren’t formal working from home agreements, which is one element of clause 50”. The WFH Guide “allowed an employee to work from home if they wished to. And it allowed us to recall them to the office if we needed to”. There was no deliberate decision to include or exclude the cl 50 notice of termination or suspension provisions. He considered it obvious that the WFH Guide was not about formal working from home arrangements under cl 50 as “we told them that they were interim guides, and that they would have to return to the workplace if their manager requested them to do so”.
202 This exchange occurred:
Okay. So there were people who were working some of their time under the guide, and some of their time at the office?---Correct.
Just like a formal working from home arrangement?---Yes.
Except that this was under the guide?---That’s correct.
…At the time these guides were released, this pandemic was a situation of unknown duration?---That’s correct.
And you were preparing the guides on the basis that an employee might be working from home, under the guides, for an unspecified period?---That’s right.
And that would be subject to you saying, “come back to the office when we need you and when we want you”?---That’s correct.
Now, you’re not saying, are you, that the guide arrangements were ad-hoc arrangements, are you?---I don’t believe I’ve said that.
But you’re not saying it, are you?---No, I’m not saying that.
You’re not suggesting to the court that you understood these guide arrangements to be ad hoc arrangements under the clause 50, are you?---They could be considered that.
They could be considered that. What were they, Mr Moore? ---They were a working from home arrangement that we put in place to ensure that our staff were safe, and that we could continue our operations.
Did they, or did they not, engage clause 50?---They didn’t engage clause 50.1.
Did they, or did they not, engage any aspect of clause 50?---I believe they could have engaged clause 50.7.
They could have- - -?---Yes.
- - -did they?---I would have to take advice on that.
And you didn’t take advice?---Not at that stage.
Well, sir, can I take you to paragraph 15 of your affidavit?---Certainly.
You say there – and this – you first deal with the nature of the pandemic response in paragraph 14, and then you say, in the circumstances, as things stand, as things could not be dealt with under the ATO enterprise agreement and the existing working from home policy, it was your view that the consultation obligations in clause 8 did not apply?---That’s correct.
Well, that’s – that statement only works if none of clause 50 applied?---I would have to refresh myself on the other aspects, but yes.
So that – on your evidence, no part of clause 50 applied to these guide arrangements. Do you accept that?---I do.
All right. Now, I think I’ve put it to you – and I will put it to you again – CB940, which is the employee responsibilities and requirements that I took you to in the 2 April iteration of the guide?---Yes.
There is no provision in there for notice, is there? ---No, there’s not.
And no provision for suspension, is there?---No.
And you left those out?---Not deliberately.
Was it an accident?---No, it wasn’t something we contemplated. We realised we would need people to attend the workplace occasionally, and hence that dot point.
203 Mr Moore was asked about Mr Gyetvay’s email of 24 March 2020 which said:
Jeremy rang through an additional suggestion – included in orange below. Overall we think it might be a good idea to somehow differentiate any working from home arrangements during the COVID-19 crisis from what the EA refers to as ‘formal working from home arrangements’ – because otherwise formal negotiation/timeframes apply in changing/ceasing anything.
204 In response, this exchange occurred:
And he says:
Great, thanks. Jeremy rang through an additional suggestion.
That’s you, isn’t it, Mr Moore?---It is.
And when he speaks in – when he says in the next sentence, “Overall, we think it might be a good idea,” that’s you and him, isn’t it?---It is.
And there, you’re turning your minds expressly, aren’t you, to clause 50.1 to think of ways to differentiate the guide from the clause?---Yes.
And the reason why is because of the formal notice and negotiation requirements and conditions that are in that clause 50.1?---No.
Well, he says, “Because otherwise, formal negotiation timeframes apply in changing ceasing anything”. You see that?---Yes .....
And you agree with that?---No. We wanted to differentiate the two, because the former [sic] working from home arrangements didn’t meet our operational needs at that stage.
So you were motivated by the content of clause 50.1 to say that the ATO needed to distinguish the guide from the clause?---Yes, we needed to distinguish between the two.
And the basis for that was the content of the clause?---Well, one of the bases of that, yes.
Because you wouldn’t need to worry about that at all if there wasn’t an enterprise agreement, would you?---There are other aspects or other legislation which speak to working from home agreements, but .....
Yes. Well, that’s what you’re talking about in this email, isn’t it?---That’s correct.
Well, what Gyetvay is talking about, and reflecting your discussion?---Yes.
205 This exchange also occurred:
…Mr Moore, you’ve given some evidence in your affidavit – and you might need to have that again, at CB2304, which is paragraph 50- - -?---Yes.
- - -that during the pandemic response, those who requested a formal work at home agreement could do so, and would have it considered in accordance with the usual process?---That is correct.
But you would agree though, would you not, that the Guide – to work at home during the pandemic response, employees were required to do so under the Guide?---That was our preference, yes.
Yes. And so – but I take it from what you say in paragraph 50 that if – if someone requested a formal working at home agreement, and the manager granted it, that would be fine?---That’s correct.
And then, in those circumstances, the ATO would be subject to the termination and suspension conditions in the clause, wouldn’t they?---They would be.
So what’s the problem with either of those two conditions?---There’s no problem with either of the conditions. I said they were both available.
Why not include them in the Guide?---Because widespread use of formal working from home arrangements wouldn’t have met the ATO’s operational needs at that stage.
If it was available to an employee to ask for a formal working from home guide, it was also available for a manager to approve it, wasn’t it?---That’s correct.
And if the manager considered that the ATO’s operational requirements could be met?---Yes.
- - -and approved it – approved a formal working from home agreement?---Yes
- - -then the ATO would accept that your operational requirements could be met?--- That’s correct.
In those circumstances, there is no reason, is there, for not including those conditions in the guide?---Again, managers would not have been able to approve widespread formal working from home agreements because they wouldn’t have met operational needs. I agree on a case-by-case basis, managers could and did make those formal arrangements, and indeed, there were formal arrangements which were still in place because they had been previously approved.
…
And yet, you still say that you omitted them from the Guide because they would not have – those conditions would not have met the ATO’s operational requirements?--- Well, I didn’t say we omitted them from the Guide. I said the Guide was set up to provide a set of working from home arrangements that met our operational needs at that time.
Without those two conditions in it?---Yes, because they weren’t formal working from home agreements.
Yes, but Mr Moore, you’ve said to the court if a worker wanted a formal working from home arrangement, they could apply for one and then that arrangement would be assessed in accordance with the policy and the clause?---That’s right.
If a manager certified that the employee could meet the operational requirements of the ATO, then they would satisfy those needs. Do you – do you agree with that?---Yes.
In which case, there is no reason why you would exclude them from the Guide, because it replicates the same process?---As I said, the employees’ widespread use of formal working from home agreements would not have met our operational needs. If an employee wanted to apply for them and they were considered on a case-by-case basis, they could be approved.
But all – any arrangement, whether under the Guide or the clause, is considered on a case-by-case basis?---Yes.
Because whether under the Guide or the clause, the process was this, wasn’t it – an employee asked for an arrangement, completed the steps that you asked them to complete, and the manager approved or didn’t approve?---That’s correct.
206 This exchange then occurred:
…well, what it says, unequivocally, is it not, is that prior to developing a new policy or guideline that relates to the provisions of the agreement, the ATO has got to consult with employees and their representatives – do you see that- - -?---It does.
- - -and the ASU is representative?---Yes.
And likewise, you’ve got to – prior to changing an existing policy of guideline that relates to the provisions of the agreement, there has got to be consultation?---That’s correct.
And you have absolutely no doubt in your mind that there was – that the working at home guide was at least a guideline?---No, I didn’t say that.
Okay. Well, what is it?---It’s guidance to managers and employers about how to set up working from home arrangements in exceptional circumstances.
Are you serious – that you don’t see this as a guideline?---I – I don’t see it in the guideline – as a guideline in the way it’s envisaged in the EA, no.
Okay. So you’ve got a view about what guideline means in the EA, do you?---Yes.
And it – does it include the things that you think are a guideline and exclude the things you think are not a guideline?--- .....
Is it your evidence to this court that guideline, for the purposes of clause 8, depends on what you think is a guideline?---No, I said I – I don’t believe this particular working from home guide meets that criteria.
Because you’ve annexed an email – the exchange you had with Ms Blaseotto, about this, haven’t you, at JM4 of your affidavit, which is CB2321, in which you’re having a discussion with Ms Blaseotto about trying to distinguish policy on guidelines from guidance?---That’s right.
And you say this kind of – this was a jaunty – a tongue-in-cheek conversation, do you? ---No, I don’t say that at all. We were very – we were – we were quite – quite clear that we wanted to differentiate that to – that being said, we were trying to consult with – with both unions on this.
So your evidence is this, is it, that we should keep in mind we should not call things a policy and guidelines. Let’s come up with other words?---Yes.
And if you came up with other words, then clause 8 doesn’t apply. Is that your evidence?---No. My evidence is that I don’t believe this is a guideline as envisaged by the – the EA, and we did try and consult with both unions.
207 Mr Moore also gave this evidence:
And is it your evidence that meant that you didn’t have to consult prior to the publishing and promulgation of the Working From Home Guide on 23 May – March?---We did consult.
You’re saying you consulted the ASU prior to publishing and promulgating the Guide on 23 March?---We consulted with the CPSU. We attempted to set up meetings with the ASU to discuss these matters.
I’m not asking you about the CPSU. I’m asking you about the ASU. Did you – did you consult with the ASU prior to publication of the Working From Home Guide on 23 March?---I am unsure. I think we sent them a copy, but I would have to probably reflect my notes on that.
And you thought that was all right because you had taken the view that the Guide did not engage with a provision in the Enterprise Agreement?---We had taken a view that we needed to move quickly and yes, it doesn’t trigger the clause 8 in the Enterprise Agreement, but we were moving quickly and we were consulting as much as we could.
Well, isn’t it the case that you didn’t disclose to the ASU, at any time before 13 May, the view – the evidence that you’re giving to the court now, which is that you believe that the Guide was entirely separate from the clause?---No, that’s incorrect.
All right. So you say that you told the ASU prior to 13 May, do you?---That’s correct.
When did you tell them?---A meeting on 17 April, from memory.
…
CB2471 [Notes taken by Ms Tucker of meeting on 17 April 2020]?---Yes.
Is that where you say you informed the ASU of what you had in your mind?---I informed them that I didn’t believe these were formal working from home arrangements, yes.
In fact, you seem to be suggesting that they were ad hoc?---Well, they were constructed in [sic] an ad hoc basis, yes.
They were constructed in [sic] an ad hoc – what does that mean, Mr Moore?---Well, these arrangements were put in place for the purpose, which is what ad hoc means, for the purpose of covering us during COVID pandemic.
Well, I thought your evidence earlier was that you didn’t accept that – these – that clause 50 was engaged by your guide?---That was my evidence, yes. And ad hoc in this means – general English – as I understand it, ad hoc means that something is done for a particular purpose as necessary. So these were done to support the COVID working from home arrangements.
Okay. So it’s ad hoc, but outside clause 50, is that your evidence?---That was the construction of the working from home arrangements, yes.
So you – your evidence, this – that the guide didn’t engage any part of clause 50, but they were still ad hoc?---Yes.
All right. And you say it was made clear on 17 April just that to the union, do you?---That they weren’t formal working from home arrangements, yes.
Well, is it your evidence that they weren’t any kind of arrangements within clause 50?---That’s what I said, yes.
And are you saying you made that clear on 17 April to the union, did you?---I believe so, yes. I was asked why clause 50.9 didn’t come into effect, and I said these weren’t formal working from home arrangements.
…
You’re just not being up front with the union, are you, about a fundamental aspect of the guide?---I think I’m being very upfront. I had been attempting to set up meetings to discuss this with Mr Lapidos for some time. We met and went through issues that he was concerned about first. This wasn’t important enough to him to discuss it our first meeting. He was concerned about other things. But as soon as he raised it, I believe I was very clear.
…
You didn’t feel under any obligation to communicate with the union something fundamental about the guide. You left them to guess at it, didn’t you?---That’s untrue. We provided them with copies of all the guides, and all the correspondence we were sending to staff. And we discussed many matters related to the COVID situation with the unions at every opportunity.
You sent him copies of the guide, but you didn’t say at any time after you became aware of what he understood those – the guide to be that he was wrong, according to your intention, did you?---I – as I said, I did, in this meeting, tell him he was wrong. And Mr Lapidos is very experienced in these industrial matters. A cursory glance at the COVID working from home guide would separate them very distinctly from the formal working from home guides.
Are you serious in saying that it was clear as day that the guide did not create a formal working from home agreement?---It was clear as day that people would have to return to work if operationally we needed it.
That’s not my question. My question is this: are you seriously telling the court that it was as clear as day that the guide did not create a formal working from home agreement?---I believe so, yes.
And yes, you can’t point to any part of the guide that made that clear in express terms, can you?---No. Apart from the fact that people were told to return from – to work. They were interim arrangements covering the COVID pandemic.
Okay. So because employees were told to return to work, you expected that they would realise that because there was no notice or suspension provisions, they would know that they weren’t getting a clause 50.1; is that your evidence?---I do.
208 Mr Moore said that he never said “I’m trying to dance around the issue” in a meeting with Mr Lapidos. Mr Moore gave this evidence:
Trying to dance around the issue?---No. I – far from it. I was being very clear that I believed the agreements the employees had signed were – were clear.
No. What you’re trying to do is not give him a straight answer, aren’t you?---No. That’s not correct.
Because you didn’t want him commencing a dispute under the dispute clause around these Guide arrangements, did you?---Mr Lapidos probably had about 10 or 20 disputes going at that time. Another dispute wouldn’t have worried me one way or another.
Well- - -?---I was trying to be – I was trying to be honest and clear to Mr Lapidos.
You knew, Mr Moore, didn’t you, that as soon as those words uttered your – left your mouth that he would have had a problem with it. As soon as you told him that the Guide did not create formal working from home arrangements, you knew he would have a problem with it, didn’t you?---Mr Lapidos has a number of problems with things but I won’t pretend to speak for him.
I’m not asking you to speak for him; I’m asking you to speak for yourself. You knew, didn’t you, that as soon as you told him what was in your mind, he would have a problem with it?---No, I don’t. I – we put those in place to protect staff, including his members. I thought he would have appreciated that.
Mr Lapidos – Mr Moore, you knew – if you could just answer my question – you knew that as soon as you told him that the Guide arrangements did not create a formal working from home arrangement, that he would have a problem with it?---No, I did not know that.
Even though you knew from 24 March that that’s what he was telling the workforce? ---And we made changes to the Guide to clarify that.
And you didn’t tell him you had made those changes for that purpose, did you?---No, but we showed him the document.
209 This evidence was also given by Mr Moore about the 9 April 2020 version of the WFH Guide:
And the purpose of that note in the policy was to direct staff to the Guide as the means to work from home during the pandemic, wasn’t it?---That’s correct.
Because that’s what you wanted staff to do. To use the Guide to make those arrangements?---That’s correct.
210 In respect of the statement in the WFH Guide from 2 April 2020 that “[i]nterim working from home arrangements confirmed during the COVID-19 response supersede any existing working from home agreements”, this exchange occurred:
Now, paragraph 36 of your affidavit, and 37, you give some evidence about why the words, “interim working from home arrangements confirmed during the COVID-19 response superseded any existing working from home agreements” was included in the Guide?---Yes.
Now, I can tell you, those words first appear on 2 April. Do you want to see them?---No. I – that’s – that accords with my recollection.
And you would agree, wouldn’t you, that the intention that you record in paragraph 37 for those words is simply nowhere in the Guide, is it?---The intention of the word “supersede”?
That’s what – the intention that you state in 37 was the – is the meaning that is to be given to those words?---Again, I don’t quite understand. I acknowledge I included that word, but I don’t – you’re saying – you’re asking me what my intention was for including that word?
No. I understand what you’re saying, paragraph 37 was your intention. I’m putting to you that that – the words that you’ve used in paragraph 37 to record your intention were not included in the working from home guide, were they?---Not that I recall.
No. And you say in paragraph 36 that you had contemplated – or you had proposed – inviting – proposed to the group, which is Mr Chapman, Mr Gyetvay and Ms Blaseotto, giving notice to everyone who was on a formal working from home arrangement at that time?---Yes.
And the purpose of that, in your mind, was to bring everyone onto the guide, wasn’t it?---No.
Well, why would you be otherwise giving people formal notice to terminate the arrangements at that time?--- Because the formal arrangements would have been quite specific, in the hours that people could work, the number of days, when they became due. And I was concerned that confusion of having two working from home arrangements in place, there may – that may cause some staff confusion. But in the end, we decided that the guide provided so much more additional flexibility that they could actually sit over the top of the formal working from home arrangements, and cover full time work that formal agreements wouldn’t have done. So in the end, a decision was taken that we didn’t need to do that, because the guide provided that flexibility.
Well, who made the decision?---I did.
Did you convey it to Mr Geale?---I don’t recall. My guess would be probably not.
And – so you used the word “superseded” immediately after thinking, “Well, I won’t give them notice, I will just say that they’re superseded”?---In the sense – again, English language sense that supersede means to replace ineffectiveness, yes.
…
2.11 ASU evidence
2.11.1 Jeff Lapidos
211 In his affidavit Mr Lapidos explained that members of the ASU who are employed in the ATO are attached to the Taxation Officers’ Branch. The ASU members attached to the Taxation Officers’ Branch work in the following ATO offices: Hobart, Traralgon, Dandenong, Box Hill, Docklands, Moonee Ponds, Geelong, Adelaide, Perth, Albury, both national offices in Canberra, Wollongong, Penrith, Parramatta, Sydney, Gosford, Newcastle, Brisbane, Upper Mount Gravatt, Chermside and Townsville.
212 Mr Lapidos said he first became aware of ATO plans that staff could work from home as a response to the COVID-19 pandemic on 22 March 2020. On the same day, he learned that there would be a staff guide for working from home. He supported the idea of ATO staff working from home due to the pandemic as stated in his letter to the Commissioner of 16 March 2020.
213 On Sunday 22 March 2020, he and other ASU representatives met Mr Geale, Mr Chapman, and Mr Moore as requested by the ATO. Mr Lapidos said that the ASU supported staff working from home. He was told at the meeting that the ATO would give staff guides on how to arrange being able to work from home. He was not provided with any draft guide before this meeting. He received the WFH Guide the next day, 23 March 2020. He read the WFH Guide. He did not discern a difference between the arrangement created under the WFH Guide and one created under cl 50.1 of the EA. Mr Lapidos said:
Clause 50.1 states that a formal working at home arrangement may be entered into or varied by agreement between the ATO and an employee. An agreement between an employee and their manager was the process foreshadowed by the guide and the checklist that it contained. The ATO policy before and after 23 March 2020 said that that [sic] managers and above held the delegation to make decisions about working at home.
214 Mr Lapidos said:
Under the heading, “Employee Responsibilities”, the guide stated that relevant legislation, the EA, and ATO policies continued to apply when working at home (page 595 of the SOAF). I read “EA” as a reference to the ATO Enterprise Agreement. When I first read the guide, I recall reading the words “Attend the workplace when requested by your manager where appropriate and possible to do so” in the last dot point under the heading “Employee Responsibilities.” Because I viewed the guide as a practical way of facilitating work at home under clause 50.1 due to the pandemic, I understood that a request would still need to accord with clause 50.2(d), which provides for termination, and clause 50.9, which provides for suspension.
Prior to the release of the working from home guide on 23 March 2020, none of the respondents gave me reason to believe that the guide produced something different clause 50.1 of the ATO Enterprise Agreement.
215 In his email to Ms Blaseotto of 31 March 2020 Mr Lapidos said that he:
proposed that an updated guide include two paragraphs to replace the language then used in the guide to describe working at home agreements. I proposed words that specifically described them as formal working from home arrangements, and also proposed inclusion of words that noted that the arrangement could be terminated by agreement or on 4 weeks’ notice.
216 Mr Lapidos said he agreed to Ms Blaseotto’s suggested amendments because:
although expressed in more general terms than my proposal, I believed then that the ATO had introduced the guide to facilitate the very agreements clause 50.1 describes and the email discussion was about bringing the flextime wording in the Guide into line with the ATO Enterprise Agreement.
217 With respect to the letter he received from Mr Moore on 13 May 2020, Mr Lapidos said that:
The ATO “view” conveyed by Mr Moore had never been conveyed to the ASU before 13 May 2020, whether before or after the guide was published on 23 March 2020.
The ASU was not informed or consulted about any part of the guide that would enable employees working at home under the working from home guide to be “recalled” to the office. The notion of a “recall to the office,” as something different from termination or suspension of a working at home arrangement, was not raised with the ASU prior to the working from home guides being published or at all. The ASU disagreed with the “ATO view.” It notified a dispute about it to the Fair Work Commission on 19 May 2020.
218 Mr Lapidos noted that the WFH Guide was amended on 26 March 2020 to include the words “[i]nterim working from home arrangements confirmed during the COVID-19 response supersede any existing working from home agreements”. Mr Lapidos said that this change was not drawn to his attention and was not the subject of consultation with the ASU.
219 The WFH Guide was also changed on 1, 9 and 21 April 2020. Mr Lapidos said that the ASU was not consulted about these changes prior to them being made or informed of the reasons for them prior to the change being made.
220 Mr Lapidos gave evidence in cross-examination.
221 Mr Lapidos agreed that the email from Ms Curtis of 3 March 2020 (in response to his letter of the same date) said that the ATO were making plans including for staff working from home in response to the safety issues arising from the pandemic. He said he did not regard the statement in Mr Chapman’s email of 11 March 2020 (to the effect that that the ATO would have further updates shortly that could be discussed at the NCF) as an “open invitation” to raise any issues with Mr Chapman. He agreed that Ms Blaseotto invited him to attend meetings about the ATO’s response to the pandemic on 13 March 2020. He said he also did not regard this as an invitation to consult with the ATO as “[c]onsultation involves more than the employer merely telling us what it was doing”. Mr Lapidos agreed that he had meetings over the years with Mr Moore and Ms Blaseotto and “[i]n the course of those meetings, they would tell us the Tax Office is going to do this or is doing this or has done that, and in some of those meetings, they would ask us what’s your opinion about this idea, or we would tell them we propose this or that”. Mr Lapidos gave evidence in this exchange about not responding to Ms Blaseotto’s invitation to meet:
…it’s not a matter of what Ms Blaseotto would have to say to us, she was offering us on behalf of the office twice weekly updates. We were getting regular updates from her with copies of the all staff emails or equivalent, you know, it might be an email that went to all the New South Wales staff, for example, and we were not interested in being given updates.---That’s not what I had been asking for from the office.
But if you were not happy with what the office was offering you, you would actually speak to Ms Blaseotto, wouldn’t you?---Not necessarily, no.
“I’m not interested, Ms Blaseotto, in just getting updates from you. I want consultation”?---I’m unlikely to raise – make that point to Ms Blaseotto because of her relatively junior position in the office.
I see. So the consultation obligations of the ATO turn on the level of seniority of the person who reaches out to you, did it?---No. I’m saying that if the union wishes to raise a concern with the office, we think about which is the appropriate level of the office and which particular person we should raise the issue with.
Mr Lapidos, you have an exchange with Ms Curtis on 3 March, you have an email from Mr Chapman on 11 March, you have an invitation from Ms Blaseotto two days later on 13 March to meet with you in relation to the COVID-19 pandemic. Why do you not take up the invitation?---Because it was not what we were asking for.
Why did you not actually ask for what you were asking for?---I – as I recall, I wrote to the Commissioner and indicated to him what we were looking for.
And you completely disregard Ms Blaseotto’s invitation?---I didn’t disregard it. I decided it didn’t meet the union’s needs.
222 Mr Lapidos said that he did not regard the email from Ms Blaseotto of 16 March 2020 inviting him to contact her to arrange a meeting about his letter to the Commissioner as “an invitation …to discuss the matters that you express concern about in your letter to the Commissioner”. This exchange occurred:
But you didn’t tell Ms Blaseotto that, did you?---No.
You just didn’t bother to respond at all, did you?---I wouldn’t say that I didn’t bother to respond. I didn’t respond.
Is it right to say that there were a number of occasions on which either Mr Moore or Ms Blaseotto asked you to copy in the employee relations team when you sent a letter like this to the Commissioner, or to someone more senior within the organisation?---I – I recall there was – there were – there was a request or more of that general nature.
223 Mr Lapidos said that he did not read the statement in the email from Mr Chapman of 17 March 2020 that “[y]ou have raised a number of issues in your letter and staff emails which we are considering and would be happy to discuss with you at the twice-weekly meetings that we have been attempting to arrange with you since last week” as confirming the purpose of the proposed twice weekly meetings. This exchange occurred:
So what he is doing is he is confirming, is he not, the purpose of the twice-weekly meetings?---Well, I didn’t read it that way.
Well, if you had any doubts before you received this letter, there were none to be had once you received this letter, was there?---All he said is that they were prepared to discuss the issues that we had raised with them at those meetings they had proposed.
Isn’t that what you want?---We certainly wanted to have discussions with the office about the issues of concern that we had.
Here’s your forum, isn’t it?---Well, we wanted to have clarity about the nature of the consultation process, and I wasn’t particularly pleased about the nature of the response compared to the issues I had raised with the Commissioner.
The very next sentence he says:
I agree some of your suggestions have merit –
doesn’t he?---He says that.
So is that not a positive response to the matters that you raised in your letter to the Commissioner?---Well, I thought that he mischaracterised the nature of the letter the union sent to the Commissioner in the first paragraph of his email.
Well, wasn’t the best way to deal with that to take it up either with Mr Chapman or attend the twice-weekly meetings?---Well, the union has always got a number of options available to it about how to address any concern that we might have.
Mr Chapman then goes on to say, a few lines further down:
Regular meetings with Assistant Commissioner Jeremy Moore, who is a key part of our policy development and business continuity meetings, are a key and productive way for you to provide input that is more beneficial to your members and ATO staff generally.
That is a correct statement, isn’t it?---Well, it’s correct in the sense that you read it out from the email correctly.
Well, what’s the issue? What issue do you have with it, Mr Lapidos?---I didn’t think that Jeremy Moore was – having meetings with Jeremy Moore would be a productive way of resolving the union’s concerns about these matters.
…
Mr Chapman then, in the next sentence, says:
I would suggest that you avail yourself of similar opportunities that may alleviate some of your misconceptions and place you in a better position to communicate to your members with greater accuracy.
?---That’s what he wrote.
That’s what he wrote?---Yes.
And that’s a fair assessment on the basis of the exchange of emails that I have taken you through, is it not?---No, it’s not.
You’ve missed an opportunity, haven’t you, Mr Lapidos, to meet with the ATO and talk about the very things that you want to talk about?---I didn’t think it was of value to our union to have meetings with Mr Moore to discuss our concerns.
There’s one thing that is certain, after you’ve received this letter you know that the twice-weekly meetings are the avenue through which you are free to, and in fact invited to, raise any issues you might have with the ATO COVID response, don’t you?---I don’t think that was that clear in the email from Mr Chapman. And, in any case, merely being free to raise issues with Mr Moore wouldn’t have addressed the – our union’s concerns.
Well, it’s better than ignoring emails inviting you to participate in the discussions, isn’t it?---I don’t agree with you. We still had avenues available to us if we wished to pursue our concern about the nature of the consultation process we were seeking.
224 Mr Lapidos agreed he attended the NCF meeting on 25 and 27 March 2020 and raised the ASU’s concerns at that meeting. The following exchange occurred about Mr Chapman’s earlier email to Mr Lapidos of 17 March 2020 to which Mr Lapidos did not respond:
Well, this has come about as a result of your and Mr Chapman getting together and sorting out what the discussions should consist of, isn’t it?---Well, Mr Chapman rang me up. I thought the purpose of the call was to sort out the consultation issue.
Something that you did not see fit to raise with Mr Chapman despite receiving his email of 17 March?---Well, I don’t regularly call Mr Chapman. He calls me more often than I call him.
Something you did not see fit to raise with Mr Chapman after you received his email of 17 March?---If you’re asking me did I phone him or did I write to him after that in the – between that time and 30 March, my recollection is I did not.
You ignored his email of 17 March, didn’t you?---I did not ignore it.
You didn’t respond to it, did you?---I did not write to him in response.
…
Returning to Mr Chapman’s email to you of 31 March, Mr Lapidos, you will see at about point 5 of the page, after the sentence we were just at:
These discussions would provide a great opportunity to provide feedback, raise issues or concerns with key decision makers who will be able to take action where appropriate, or talk through and explore issues and differing perspectives on issues.
You see that?---Yes.
That’s exactly what he was offering on 17 March, is it not?---Well, I saw the email on 17 March in a different light to the email of 31 March. I didn’t think they were doing the same thing.
You did at the time, or you – on revisiting it now, feel that there was a difference between the two?---I didn’t at the time. I saw that they were different qualitatively.
He reiterates the position that Mr Moore and Mr Gyetvay have accountability and leadership of employment policy matters, occupational health and safety and various staff support materials that form part of the ATOs response to COVID-19. You see that?---Yes.
They’re the go-to people for you, aren’t they?---I didn’t see it that way.
Occupational health and safety, employment policy matters, they’re – that is the basket of matters that covers the issues that you wanted to raise with the ATO in relation to the COVID-19 response, isn’t it?---The union decides who the best person is that we should raise things with. We’re not going to be dictated to by the Tax Office and say “the only people you can talk to are these people”. If we’ve got concerns that we think should be raised with the commissioner, we will raise them with the commissioner. If we think they should be raised with Ms Curtis, we will raise them with Ms Curtis. And if we think they should be raised with the deputy commissioner of a business line, then we will raise it with the deputy commissioner of the business line. And if we think it should be raised with a team leader, we will raise it with the team leader.
And at the very same time, you accuse the ATO of failing to consult with you in circumstances where you’re getting this sort of correspondence?---Well, I don’t know which time – which particular thing you’re referring to now.
…
This email from Mr Chapman provides you with the very avenue that had been made available to you from as early as 13 March to raise issues in relation to the COVID- 19 response, isn’t it?---I thought it was considerably different from the offer on 13 March.
225 This further evidence was given about Mr Chapman’s email of 31 March 2020:
And you will see then, the next line he says:
I see these meetings as a key opportunity for the ATO to test potential directions with the unions and for you to put forward the views, concerns, feedback, etcetera, of your members.
?---Yes, he wrote that.
Now, there is no reason for you to doubt that that was the intent of the ATO right from 13 March, is there?---I, certainly, had reason to believe that was not their intention on 13 March.
226 In respect of Ms Blaseotto’s email of 3 April 2020 about setting up a meeting and Mr Lapidos’ response inquiring who from the ATO would be attending, this exchange occurred:
And then your response at the bottom of the court book 1185:
We would Anne, but could you tell us who would represent the Commissioner at the meeting?
?---Yes, that’s what I wrote.
You want control over who you meet with at the ATO, don’t you?---I was asking who the ATO intended representing the Commissioner at the meeting. I don’t – I have never had the power to require the Office to – you know, put this particular person to represent the Commissioner. That’s what the office does.
Well, it’s a source of frustration for you, isn’t it?---No, because that’s what happens. That’s what has always happened. They decide who will represent the Commissioner at meetings. I have meetings with the Office, if not every day of the week, every other day of the week and plenty of days where there’s more than one meeting. I don’t control who sits on the other side of the discussion.
But if you’re not satisfied with who the ATO is sending, you refuse to engage with them, don’t you?---No, if – I might prefer someone else if I think someone else would resolve it quicker and easier, but if they’re not able to do that, where I can and it’s practical for me to do it, I will escalate the issue.
Well, an example of what I just said is your refusal to engage with Ms Blaseotto in relation to her invitations on the 13th and 16th of March, is it not?---I didn’t refuse. I don’t know what you mean by “refuse”. I decided against responding to her email.
Because she wasn’t the right person from the ATO to engage with. That was your view, wasn’t it?---No. There’s – you can see I responded to Ms Blaseotto on 3 April. I have no problem with Ms Blaseotto. We get along quite fine.
227 Mr Lapidos agreed that he wanted Mr Geale, Ms Curtis, and Mr Chapman to be able to attend meetings and received this confirmation on 8 April 2020 in an email from Mr Moore. This exchange occurred:
Why did everything have to be so difficult, Mr Lapidos, to get together with the ATO to talk about its pandemic response?---Well, it didn’t need to be difficult. Mr Chapman made it a lot easier by phoning me up and putting a proposal that almost went all the way to what we needed. You don’t understand the history. There had been discussion – separate discussions between that Assistant Commissioner level in ATO people and each of the unions – or both of the unions, separate discussions that had been going on for a long time, and they had been very fruitful from our perspective, and that’s what we were seeking to continue, or a variant on that.
There was absolutely nothing stopping you from picking up the phone and you raising that with Mr Chapman rather than waiting for him to call you on 30 March, was there?---No one stopped me.
228 Mr Lapidos said that he considered Ms Tucker’s notes of the meeting of 24 April 2020 to be inaccurate to the extent that they recorded Mr Moore as saying “it’s not the same working from home agreement that is envisaged in the EA”. This evidence was given by Mr Lapidos:
It was your view, was it not, Mr Lapidos, that the arrangements that the ATO sought to put in place through the making and promulgation of the working from home guide were arrangements that were covered by clause 50.1 of the ATO enterprise agreement?---Certainly clause 50 of the agreement, yes.
And Mr Moore disagreed with your view, didn’t he?---Well, that’s what I was trying to find out. I really didn’t find out the ATOs position until we got the 13 May letter from Mr Moore.
I see. So that – and that’s in your evidence, isn’t it?---It is.
What I put to you, Mr Lapidos, is that you say that as a matter of convenience. The reality is you knew from reading the working from home guide, you knew from your discussions with Mr Moore and Ms Blaseotto in these meetings that the ATO was of the view that clause 50 did not apply to these arrangements?---So I read the first iteration of the working from home guide when it came out. It was a fairly quick reading, but I read it. And I understood it to be arrangements under clause 50. I had no doubt in my mind that the arrangements it was seeking to put in place were arrangements under clause 50. And - - -
…
I’m putting to you that Mr Moore expressed a very different view to you and you knew from your discussions that he disagreed with your view, didn’t you?---Sorry, you will need to be clearer about which discussions. But if you’re talking about as a general proposition the discussions covered by these notes made by Ms Tucker and Ms Blaseotto, clearly we weren’t agreeing – I was trying to understand the ATOs position. And it took a long time to get that. And the reason it was taking a long time; Mr Moore had a bad habit, from [our] perspective, of telling us his personal opinion, something we were not interested in. All we ever want to know is the ATOs position. And so it can be difficult in discussions with Mr Moore to find out what the ATOs position actually is, and that’s what I was trying to understand through these discussions.
So are you suggesting that Mr Moore’s letter of 13 May was, like, an enlightening moment for you?---It was.
And you hadn’t suspected at any point before that that the ATO position was that clause 50 did not apply to these working from home agreements?---I did not understand it before then.
You had been asserting in your emails to your members all along your view that clause 50 applied to these arrangements, weren’t you?---Yes.
And you were urging your members to exercise rights under clause 50 in relation to those arrangements, weren’t you?---I was explaining to our members how to make a clause 50 arrangement and how best to organise the nature of the arrangement. At that stage I don’t think there was a question about actually exercising rights because at that stage, very early stage, there was no need for anyone to exercise the rights. What we were trying to do was get arrangements in place at that stage.
And what the working from home guide emphasised continually was that these were interim arrangements, wasn’t it?---Well, that’s what the guide said.
That’s exactly what it was, isn’t it? That’s what- - -?---That’s what the guide said.
The reality is, it didn’t matter what Mr Moore said in his letter of 13 May, did it, Mr Lapidos. You had your own view of what these working from home arrangements were, and the fact that clause 50 applied to them, didn’t you?---No, it was very important for our union to know what the ATOs position was on these arrangements.
You had been saying to the ATO all along that you were going to take them to the commission about this, weren’t you?---No, not all along. No.
Well, for some weeks, hadn’t you?---I don’t know that – for some weeks, either. You would have to help me with the timeline before I could answer that question.
And, of course, that’s exactly what you did do within six days of getting the letter of 13 May, isn’t it?---It took a little while to prepare the referral.
229 Mr Lapidos said that he considered his co-operation with the ATO about amendments to the WFH Guide was done “under false pretences” because, at that time, he did not know these were not formal working from home arrangements under cl 50 of the EA. He believed the ATO officials had been misleading him in that regard, saying “one of the things that concerns me is they may put these arrangements in place without telling me that they weren’t being done in accordance with clause 50”.
2.11.2 (Josephine) Amelia Tucker
230 In her affidavit Ms Tucker explained that she is the Branch Assistant Secretary of the Taxation Officers’ Branch of the ASU.
231 Ms Tucker attended the meetings which were held with the ATO on 14 April 2020, 15 April 2020, 17 April 2020, 24 April 2020 and 29 April 2020. During each of these meetings Mr Lapidos did most of the speaking on behalf of the ASU and she took notes recording what was said during the meetings.
232 In cross-examination Ms Tucker said her notes of the meetings were “just trying [to] capture what was being said at the time”. She recalled Mr Moore saying the words “I’m trying to dance around that issue” at the meeting of 24 April 2020.
2.11.3 Other evidence
233 The ASU also adduced evidence from employees of the ATO about their working from home and in the office arrangements during the pandemic. I will refer to that evidence separately and only to the extent necessary.
3. THE ENTERPRISE AGREEMENT
3.1 EA provisions
234 Section 185 of the FW Act requires a bargaining representative to apply to the Fair Work Commission for approval of an enterprise agreement which has been made.
235 The Fair Work Commission approved the EA in July 2017.
236 Under cl 2.1 the EA covers:
Employer
Commonwealth of Australia, represented by the Commissioner of Taxation.
Employees
All employees of the ATO, who are employed under the Public Service Act 1999 in classifications at and below APS Executive Level 2.
237 According to cl 4.1:
4. Principles and values-based employment framework
4.1 This Agreement provides a principles-based decision-making framework. The following principles underpin all provisions in this Agreement:
a) providing a safe, secure and fair environment;
b) assisting employees to balance their work and personal commitments;
c) the ATO being as flexible as it can, taking into account the employee’s preferences and personal circumstances;
d) fostering strong cooperative relationships between the ATO and its employees;
e) safeguarding the health and wellbeing of employees;
f) respecting and valuing diversity;
g) preventing discrimination and harassment;
h) treating employees fairly and impartially;
i) making the most efficient use of resources; and
j) supporting sustainable environmental management.
They will be supported by policies and guidelines as appropriate.
238 Clause 6 provides that:
6. Consultation forum
6.1 There will be a National Consultative Forum (NCF) to facilitate communication and consultation on ATO-wide employment and workplace relations matters.
…
239 Clause 7 relates to certain decisions of the ATO.
240 Clause 8 is in these terms:
8. ATO policies and guidelines
8.1 Prior to:
a) developing a new policy or guideline that relates to the provisions of this Agreement, or
b) changing an existing policy or guideline that relates to the provisions of this Agreement, where that change is significant or substantial;
the ATO will consult with employees and their representatives for a reasonable period which should be at least two weeks. The ATO will consider any comments or feedback prior to finalising the policy or guideline.
8.2 Any such policies and guidelines are not incorporated into, and do not form part of, this Agreement. A term of this Agreement prevails to the extent of any inconsistency with a policy, guideline or procedure.
241 Section D of the EA contains provisions as follows:
SECTION D – BALANCING WORK & PERSONAL LIFE
43. Work / personal life balance
43.1 The ATO and employees agree on the importance of an appropriate balance between working and personal lives. The ATO is committed to supporting employees to achieve an appropriate balance between their work responsibilities and their personal life.
…
ATTENDANCE AND WORKING PATTERNS
44. Hours of work
…
50. Working at home
50.1 A formal working at home arrangement may be entered into or varied by agreement between the ATO and an employee when it is suitable for both the employee and ATO, provided ATO operational requirements can continue to be met.
50.2 A formal working at home arrangement is to be reached that:
a) meets security and work health and safety requirements;
b) must be in writing setting out the relevant conditions and arrangements
c) must outline arrangements for cost of establishment; and
d) can be terminated by agreement or on four weeks’ notice.
50.3 Working at home arrangements may be terminated without notice if the employee fails to comply with the agreed arrangements for home based work.
50.4 An employee working at home is covered by the same employment conditions as an employee working at an office site. This includes access to conditions in this Agreement associated with ‘field work’ as defined in Attachment E.
50.5 Apart from situations covered by subclause 42.1 the employee’s ATO office is deemed to be their usual place of work for the purposes of any work travel.
50.6 The delegate may approve for the ATO to meet all or part of the costs of establishing a working at home arrangement.
50.7 This clause does not affect a delegate’s ability to approve ad hoc periods of working away from the office on a case by case basis.
50.8 Approval may be given for employees to work at home while they are suffering from a minor illness or injury, or have responsibility for another person who needs minor care, but not if it is more appropriate for the employee to use Personal Leave.
Short term suspension
50.9 Without limiting termination arrangements, working at home arrangements may be suspended on a short-term basis due to operational requirements, such as the need to deploy employees to priority functions. If this is necessary, the following conditions will apply:
a) the ATO will give the employee a minimum of one week’s notice (and where it can, as much notice as possible) of the suspension of arrangements (this notice may be less if the employee agrees);
b) the ATO in reaching a decision on suspension will take account of any hardship the employee might have;
c) such suspension will not exceed eight weeks, unless a longer period is agreed with the employee; and
d) at the end of the suspension, the previous working at home arrangements will be reinstated.
242 Section G, which is entitled “Dispute Settlement Procedures”, includes the following:
100.1 If a dispute relates to:
a) a matter arising under this Agreement; or
b) the National Employment Standards,
this clause sets out procedures to settle the dispute.
100.2 An employee who is a party to the dispute may appoint a representative for the purposes of the procedures in this clause.
100.3 In the first instance, the parties to the dispute must try to resolve the dispute at the workplace level, by discussions between the employee or employees and relevant managers and/or management.
100.4 If discussions at the workplace level do not resolve the dispute, a party to the dispute may refer the matter to the Fair Work Commission (FWC).
…
100.6 While the parties are trying to resolve the dispute using the procedures in this clause:
a) an employee must continue to perform their work as they would normally unless they have a reasonable concern about an imminent risk to their health or safety; and
b) an employee must comply with a direction given by the delegate to perform other available work at the same workplace, or at another workplace, unless:
i. the work is not safe; or
ii. applicable occupational health and safety legislation would not permit the work to be performed; or
iii. the work is not appropriate for the employee to perform; or
iv. there are other reasonable grounds for the employee to refuse to comply with the direction.
100.7 The parties to the dispute agree to be bound by a decision made by the FWC in accordance with this clause.
243 Section H, which is entitled “Individual Flexibility Arrangements”, includes the following:
101.1 The ATO and an employee covered by this Agreement may agree to make an individual flexibility arrangement to vary the effect of terms of the Agreement if:
a) the arrangement deals with one or more of the following matters:
i. arrangements about when work is performed;
ii. overtime rates;
iii. penalty rates;
iv. allowances;
v. remuneration; and/or
vi. leave; and
b) the arrangement meets the genuine needs of the ATO and the employee in relation to one or more of the matters mentioned in paragraph (a); and
c) the arrangement is genuinely agreed to by the delegate and the employee.
101.2 The ATO must ensure that the terms of the individual flexibility arrangement:
a) are about permitted matters under section 172 of the Fair Work Act 2009; and
b) are not unlawful terms under section 194 of the Fair Work Act 2009; and
c) result in the employee being better off overall than the employee would be if no arrangement was made.
101.3 The ATO must ensure that the individual flexibility arrangement:
a) is in writing; and
b) includes the name of the employer and employee; and
c) is signed by the delegate and the employee, and if the employee is under 18 years of age, signed by a parent or guardian of the employee; and
d) includes details of:
i. the terms of the enterprise agreement that will be varied by the arrangement; and
ii. how the arrangement will vary the effect of the terms; and
iii. how the employee will be better off overall in relation to the terms and conditions of his or her employment as a result of the arrangement;
and
e) states the day on which the arrangement commences and, where applicable, when the arrangement ceases.
101.4 The ATO must give the employee a copy of the individual flexibility arrangement within 14 days after it is agreed to.
101.5 The ATO or the employee may terminate the individual flexibility arrangement:
a) by giving no more than 28 days written notice to the other party to the arrangement; or
b) if the delegate and employee agree in writing — at any time.
244 Clause 103.1 says:
This clause and the clauses relevantly indicated in Column 3, Attachment D exhaustively set out the terms and conditions of employment for employees engaged for a specified term or for the duration of a specified task in accordance with the Public Service Act 1999 (non-ongoing employees). No other clauses apply to non-ongoing employees.
245 Clause 104 is to the same effect for casual employees.
3.2 Construction principles
246 The principles of construction of the EA were not in dispute.
247 In OneKey Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union [2018] FCAFC 77; (2018) 262 FCR 527 at [189]–[191] Bromberg, Katzmann and O’Callaghan JJ said:
The principles governing the interpretation of enterprise agreements are the same as those governing the interpretation of awards: see Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at [96] (Kirby J) and [129] (Callinan J); Australasian Meat Industry Employees Union v Coles Supermarkets Australia Pty Ltd [1998] FCA 166; (1998) 80 IR 208 at 212 (Northrop J); Energy Australia Yallourn Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2017] FCA 1245 at [74] (Bromberg J).
In the oft-cited words of Madgwick J in Kucks v CSR Ltd (1996) 66 IR 182 at 184:
It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.
(Emphasis added.)
Similarly, words in an industrial agreement must not be interpreted “in a vacuum divorced from industrial realities”: City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; (2006) 153 IR 426 at [57]. Regard must be had to the nature of the document, the manner of its expression, the context in which it operates, and the industrial purpose it serves: Amcor at [96] per Kirby J. Another relevant factor is the intention of the parties: Shop Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [14]; Kucks at 184….
248 Another summary is provided in WorkPac Pty Ltd v Skene [2018] FCAFC 131; (2018) 264 FCR 536 at [197] (per Tracey, Bromberg and Rangiah JJ):
The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context: City of Wanneroo v Holmes (1989) 30 IR 362 at 378 (French J). The interpretation “… turns on the language of the particular agreement, understood in the light of its industrial context and purpose …”: Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at [2] (Gleeson CJ and McHugh J). The words are not to be interpreted in a vacuum divorced from industrial realities (Holmes at 378); rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament (Holmes at 378–9, citing Geo A Bond & Co Ltd (in liq) v McKenzie [1929] AR(NSW) 498 at 503 (Street J)). To similar effect, it has been said that the framers of such documents were likely of a “practical bent of mind” and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced: see Kucks v CSR Limited (1996) 66 IR 182 at 184 (Madgwick J); Shop Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16] (Marshall, Tracey and Flick JJ); Amcor at [96] (Kirby J).
249 To similar effect in James Cook University v Ridd [2020] FCAFC 123; (2020) 278 FCR 566, Griffiths and Derrington JJ said at [65]:
The relevant principles applicable to the interpretation of an enterprise agreement may be stated as follows:
(i) The starting point is the ordinary meaning of the words, read as a whole and in context (City of Wanneroo v Holmes [1989] FCA 553; 30 IR 362, 378; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426 [53]; WorkPac Pty Ltd v Skene [2018] FCAFC 131; 264 FCR 536 [197]).
(ii) A purposive approach is preferred to a narrow or pedantic approach — the framers of such documents were likely to be of a “practical bent of mind” (Kucks v CSR Limited [1996] 66 IR 182, 184; Shop Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 [16]; WorkPac Pty Ltd v Skene [2018] FCAFC 131; 264 FCR 536 [197]). The interpretation “turns upon the language of the particular agreement, understood in the light of its industrial context and purpose” (Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; 222 CLR 241 [2]).
(iii) Context is not confined to the words of the instrument surrounding the expression to be construed (City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426 [53]). It may extend to “… the entire document of which it is a part, or to other documents with which there is an association” (Short v FW Hercus Pty Ltd [1993] FCA 51; 40 FCR 511, 518; Australian Municipal, Administrative, Clerical and Services Union v Treasurer of the Commonwealth of Australia [1998] FCA 249; 82 FCR 175, 178).
(iv) Context may include “… ideas that gave rise to an expression in a document from which it has been taken” (Short v FW Hercus Pty Ltd [1993] FCA 51; 40 FCR 511, 518).
(v) Recourse may be had to the history of a particular clause “Where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form…” (Short v FW Hercus Pty Ltd [1993] FCA 51; 40 FCR 511, 518).
(vi) A generous construction is preferred over a strictly literal approach (Geo A Bond and Co Ltd (in liq) v McKenzie [1929] AR 499, 503–4; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426 [57]), but “Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties” (City of Wanneroo v Holmes [1989] FCA 553; 30 IR 362, 380).
(vii) Words are not to be interpreted in a vacuum divorced from industrial realities but in the light of the customs and working conditions of the particular industry (City of Wanneroo v Holmes [1989] FCA 553; 30 IR 362, 378–9; WorkPac Pty Ltd v Skene [2018] FCAFC 131; 264 FCR 536 [197]).
250 In Australian Licensed Aircraft Engineers Association v Qantas Airways Limited [2022] FCAFC 50; (2022) 314 IR 231 Besanko, Bromberg and Wheelahan JJ said at [28]–[29]:
The Full Court of this Court observed in Transport Workers’ Union of Australia v Coles Supermarkets Australia Pty Ltd [2014] FCAFC 148; (2014) 245 IR 449 (TWU v Coles) that, although the observations in Kucks were made in dealing with the construction of awards, they apply equally to industrial agreements subject to one additional observation. Enterprise agreements are agreements in name only and their construction should not proceed on the premise that they are a form of bargain between agreeing parties (TWU v Coles at [40]; Toyota Motor Corp Australia Ltd v Marmara [2014] FCAFC 84; (2014) 222 FCR 152 at [88]–[89]). In other words, because of the circumstances in which they are made and the consequences of contravention (i.e., penal consequences for contravention: s 50 of the FW Act), enterprise agreements have a legislative character.
The main guides to construction are text, context and purpose and there is utility in bearing in mind the facts as they are known at the time the instrument is drafted (Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 at [2] per Gleeson CJ and McHugh J; at [30] per Gummow, Hayne and Heydon JJ; at [64] and [96] per Kirby J; at [129]–[131] per Callinan J; TWU v Coles at [46]; see also Herzfeld P and Prince T, Interpretation (2nd ed, Lawbook Co, 2020) at [16.160] et seq).
3.3 Discussion
3.3.1 Clause 50
251 The ASU referred to various provisions of the PS Act in the context of the construction of the EA, cl 50 in particular. These included:
8 Relationship with Fair Work Acts
(1) This Act has effect subject to the Fair Work Act 2009 and the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.
…
13 The APS Code of Conduct
(5) An APS employee must comply with any lawful and reasonable direction given by someone in the employee’s Agency who has authority to give the direction.
…
24 Terms and conditions of employment [Notes omitted]
(1) An Agency Head may from time to time determine in writing the terms and conditions of employment applying to an APS employee or APS employees in the Agency.
(1A) A determination under subsection (1) is of no effect to the extent that it would reduce the benefit to an APS employee of an individual term or condition applicable to the employee under:
(a) a fair work instrument; or
(b) a WR Act transitional instrument.
(2) A determination under subsection (1) may apply, adopt or incorporate, with or without modification, any of the provisions of:
(a) a fair work instrument; or
(b) a WR Act collective transitional instrument;
(3) The Public Service Minister may, by legislative instrument, determine the terms and conditions of employment applying to APS employees, if the Public Service Minister is of the opinion that it is desirable to do so because of exceptional circumstances.
(4) The limitation in subsection (1A) does not apply in relation to a determination under subsection (3).
(5) A determination under subsection (3) overrides the following, to the extent of any inconsistency:
(a) a determination under subsection (1);
(b) the Australian Fair Pay and Conditions Standard;
(c) the National Employment Standards.
252 It is common ground that no determination was made under s 24(3) of the PS Act in response to the pandemic.
253 The ASU’s case is that cl 50 of the EA “occupies the whole subject of consensual arrangements and approvals for performing work at home for ATO employees covered by the ATO Enterprise Agreement”. According to the ASU, the respondents’ contrary case should be rejected because:
(1) the only clause under the Section D heading that addresses the subject matter of “Balancing Work & Personal Life” is cl 43.1. Clauses 43.2 and 43.2 deal with specific examples of how this balance may be achieved. The commitment in cl 43.1 refers to a balance between “working” and “personal lives”. However, work from home is concerned with working. Further, a diversity of topics is arranged under the Section D heading that may or may not have anything to do with any putative “balance” between work and personal lives;
(2) the respondents lean heavily on general, non-specific words in a heading that derive from unstated assumptions about what might constitute the “balance” between work and personal life to cut down the scope of unambiguous language. There is no textual or contextual footing for doing so discernible from:
(a) the ordinary meaning of the words used in cl 50.1, which is the starting point for construction. The generality of the words in the Section D heading cannot reliably sustain a construction that excludes the pandemic from the scope of cl 50.1;
(b) the context apparent from the surrounding provisions, which rely on worker/manager based agreement making as the means of determining how the employer should respond to an employee’s circumstances;
(c) the associated pre-pandemic ATO Policy (the Working at home policy). Before and during the pandemic this policy said the following about a formal working at home arrangement: “[t]he EA provides for formal working at home arrangements where the employee and the manager agree on a regular pattern of days/hours each week to be work at home”. The words are simple and clear; and
(d) any admissible evidence that demonstrates a shared common understanding of the scope of cl 50.1 that qualified the ordinary meaning of the general words “suitability” and “operational requirements”. There is only supposition from the respondents;
(3) any hypothesised absurdity arising from the notion that the ATO should be required to give four weeks’ notice to get an employee back to an ATO office was eschewed by the evidence. Neither Ms Curtis nor Mr Geale identified notice as a problem. Mr Moore’s evidence was that a formal arrangement was available during the ATO’s pandemic response;
(4) any hypothesised absurdity is eschewed by principle. Intention and purpose cannot be approached as if the EA was really an “agreement” between parties. This feature has significance for the attribution of intention to those who bargained for and then made the instrument. In Health Services Union v Ballarat Health Services [2011] FCA 1256 at [79] Gray J said:
In the current era, most industrial instruments are required to be put to a vote of the employees whose work will be covered by them, before they can be certified or approved so as to become enforceable by statute. The union and the employer who negotiated the terms might have had a common understanding of the meaning of them, but that understanding might not have been shared by all or some of the employees who voted for the operation of the agreement. They may have been entirely ignorant of the common understanding. In those circumstances, the occasions on which it can be said that a party to an agreement who entered into it on a common understanding should not be allowed to resile from that understanding will be rarer than they have been in the past;
(5) the presence in the statutory instrument (the EA) of the procedures and processes provided for by cl 50.1 makes it appropriate to approach its terms from the standpoint that those processes and procedures would be observed. In National Tertiary Education Union v La Trobe University [2015] FCAFC 142; (2015) 254 IR 238 at [108] White J said:
Although it may be a statement of the obvious, it is appropriate to keep in mind that the document which the Court is asked to construe is an enterprise agreement made pursuant to the regime in Pt 2–4 of the Fair Work Act 2009 (Cth) (the FW Act). It is in the very nature of these agreements that they are intended to establish binding obligations. The manner of making such agreements is subject to detailed prescription and their operation is contingent upon approval by the Fair Work Commission, the obtaining of which is itself a matter of detailed prescription. In my opinion, it is natural to suppose that parties engaging in this detailed process intend that the result should be a binding and enforceable agreement. To my mind, that is an important matter of context when approaching the construction of cl 74;
(6) the evidence rejects the significance of what was described by the respondents as the “blanket approach” to working from home achieved by means of the WFH Guide. This contention conflates scale with process. The WFH Guide merely provided a pandemic focused approach to agreement making between a particular worker and their manager. The pandemic itself altered nothing about the outcome of the agreement making; the need for suitability or need for the ATO’s operational needs to be satisfied by the home based work;
(7) there is evidence that tells in favour of the view that work/life balance was a live consideration. The industrial purpose of notice to allow an employee time to change the arrangements he or she had in place was just as present in the situation addressed by the WFH Guide;
(8) an underpinning principle stipulated by cl 4.1(a) and (e) of the EA is employee safety. So is flexibility. These principles should not, as the respondents contend, be treated as “aspirational”, as if they had no constructional value. In terms, they are described as “underpinning” principles of each clause. The constructional significance of one or another of these principles may vary according to the subject matter, but the Court is entitled to, and should, give weight to cl 4.1 as ideas that inform the scope and operation of cl 50 and guide decision-making by this employer. There is no difficulty in doing so. The broad language of cl 50.1 is harmonious with the principles enunciated in cl 4.1(a)–(e), (h) and (i). Those sub-clauses support a view of a formal working at home arrangement as entirely “suitable” as a health and safety measure if home based work is itself appropriate for that purpose. This was a term that Mr Geale and Ms Curtis also applied to WFH Guide arrangements; and
(9) three other contextual factors favour the ASU’s argument:
(a) the absence of any authority on the part of the Commissioner to declare the existence of overriding exceptional circumstances;
(b) the obvious flexibility cl 50.1 offered to mould a suitable arrangement. Under the existing ATO Working at home policy, it was up to an employee’s manager to come up with an arrangement for days and hours of work at home. This is exemplified by the two examples of formal arrangements proffered by Mr Moore;
(c) for non-ongoing employees (to whom cl 50 applies), cl 103.1 of the EA states that:
This clause and the clauses relevantly indicated in column 3, Attachment D exhaustively set out the terms and conditions of employment for employees engaged for a specified term or for the duration of a specified task in accordance with the Public Service Act 1999 (non-ongoing employees). No other clauses apply to non-ongoing employees;
and
(d) the EA stipulates that policies or guidelines that “relate to” its provisions are subservient to its terms. This operation is conveyed in cl 8.2.
254 In answer to the respondents’ submissions about the proper construction of cl 50 of the EA, the ASU said:
(1) cl 50 makes provision for agreement making on a specific subject and lays down the conditions that attach to the agreement reached. The clause has been included in an instrument that is subject to the statutory command in s 50 of the FW Act. It follows that the Court would approach the benefit on the basis that the process it contains was intended to be applied to that subject matter;
(2) reliance on the word “may” in cl 50.1 is misplaced. Viewed contextually, the word “may” in cl 50.1 expresses a power or authority to enter into the arrangement described therein “when” (which is the conditional statement in cl 50.1) the prescribed conditions for doing so are met. The respondents’ approach would strip cl 50.1 of its practical effect and diminish its enforceability. This view of “may” would serve only to undercut conditions prescribed by law by sidelining the EA and s 24(1A) of the PS Act;
(3) there is no textual footing for the respondents’ contention that cl 50.1 provides for “relatively long-term or permanent working from home arrangements”. Indeed, it is contrary to the existing ATO Working at home policy which recognises that the period of operation is in the hands of the makers of the arrangement. That policy indicates that ATO consent will only be given for a maximum period of 12 months before any renewal;
(4) cll 50.7 and 50.8 do not demonstrate any material distinction between a formal arrangement under cl 50.1 and one made under the WFH Guide; and
(5) cll 4.1, 8 and 100 do have contextual significance. They demonstrate the absurdity of construing cl 50.1 as if it recognised more than one way of making an arrangement to work at home. One way (cl 50.1) to which those clauses applied and another, unknown at the time the EA was “made” and “approved” by the Fair Work Commission, that was beyond the reach of the instrument and unenforceable under the FW Act. The absurdity is manifest if one thinks of the consequences for dispute resolution.
255 I am unable to accept the ASU’s submissions about the proper construction of cl 50 of the EA.
256 I am not persuaded that the terms of, in particular, s 24(3) of the PS Act should be taken as indicating that cl 50 is to be construed assuming an intention to cover the field of working from home arrangements. The capacity of the Public Service Minister, by legislative instrument, to determine the terms and conditions of employment applying to APS employees, if the Public Service Minister is of the opinion that it is desirable to do so because of exceptional circumstances, should not be characterised as a foundational background fact in relation to the construction of any provision of the EA, including cl 50. While the EA operates in the context of the PS Act and contains many references to it given that the employees covered by it under cl 2.1 are employees of the ATO employed under the PS Act at and below APS Executive Level 2, I do not accept that should be taken to mean that the EA necessarily evinces a legislative intention that each or, indeed, any of its provisions must cover the field merely because of the overriding capacity of the Public Service Minister to determine the terms and conditions of employment applying to APS employees if of the opinion that it is desirable to do so because of exceptional circumstances. Rather, each provision of the EA should be construed according to its own terms and in the context of the EA as a whole. The PS Act is relevant to the background context, but the very fact that s 24(3) of the PS Act requires an opinion of exceptional circumstances weighs against any construction of the EA on the basis of the availability of s 24(3).
257 I also do not accept that a proper process of construction of cl 50 of the EA permits weight to be given to the particular circumstances of the present case. That is, evidence of events that occurred in the present case are not legitimate tools of construction. The text, context, purpose and background of the provisions of the EA, at the time the EA was made, are the legitimate tools of construction.
258 It is relevant that cl 50 appears in section D of the EA which concerns “Balancing Work and Personal Life”. This is an important part of the context indicating the meaning to be given to cl 50.
259 The ATO’s commitment to “supporting employees to achieve an appropriate balance between their work responsibilities and their personal life” is stated in cl 43.1. This indicates that the principal sphere of action with which the provisions in section D are concerned is the needs and wants of the individual employee (at least to the extent they are consistent with the operational needs of the ATO). For this reason, for example, while cl 44 generally sets out the standard working hours, cl 44.6 provides that “[b]usiness lines should monitor the implementation of the new arrangements to assess the impact on the health and well-being of the employees in the workplace”. Similarly, cl 44.9 provides that an “employee and their manager will agree on the employee’s regular hours within the bandwidth hours balancing the needs of the employee and clients”. Again, the focus is the needs and wants of the individual employee (at least to the extent they are consistent with the needs of the ATO).
260 The same focus is apparent in cl 46.4 which provides that where “a flexible working arrangement is in place, requests from EL [Executive Level] employees to access flexible time-off will not be refused, subject to operational requirements”. That is, the contemplated request is from an individual employee. The permissible refusal to meet those individual employee needs is the ATO’s operational requirements.
261 Clause 47, about rostering, is different. It relates to rostering arrangements in “business areas”. The focus of the provisions is not an arrangement between an individual employee and the ATO but an arrangement affecting a business area potentially affecting multiple employees. Nevertheless, the work-life balance aspect of cl 47 for an individual employee is apparent in cl 47.4, for example, which provides that the ATO will work with employees to minimise impacts on employee access to flexibility and “will rely on voluntary arrangements to the maximum extent practicable, while ensuring that operational requirements are met”. Further, cl 47.8 provides that “[a]t any time an employee can seek to renegotiate their rostered hours or implement a swapping arrangement, however the hours can only be changed with the agreement of the Director/manager”. Again, the seeker of the individual arrangement is the employee and the giver of approval to meet the work/life balance needs of the employee is the ATO.
262 Clause 48.13 also focuses on the individual employee. It provides that a “reasonable request by an employee to access part time employment, or to renew a current regular part-time employment arrangement, will be approved if there is a balance between the employee’s personal needs and operational requirements”. The same pattern is apparent – the seeker of the individual arrangement is the employee and the giver of approval to meet the work/life balance needs of the employee is the ATO.
263 Clause 49.1 has the same focus. It provides that job sharing arrangements “between two or more regular part-time employees may be approved by the delegate. This will be subject to operational circumstances and the agreement of each employee”.
264 We then come to cl 50. The indicators to its proper construction include these matters:
(1) the background fact, which I infer must have existed at all material times, that the bulk of ATO employees (some 20,000 or thereabouts) did not work from home and, for the few who did so, the arrangement reached related to part only (such as one or two days) of the employee’s working week. This background fact is apparent from many aspects of the evidence, which I infer must have been the same when the EA was made in 2017 including the numerous workplace locations of the ATO, the lack of IT and other equipment to enable widespread working from home which had to be rectified during the early phase of the pandemic, and the ATO’s obvious concern that the pandemic response was an interim response only and not the “new normal”, amongst other things;
(2) this background fact is consistent with an assumption, not expressly stated in the EA, that employees ordinarily work from an ATO office. This is the whole point of cl 50, to provide an exception to the rule of working from an ATO office. But other provisions of the EA are also consistent with this assumption including, for example:
(a) cl 28 in respect of relocation costs;
(b) cll 29–30 in respect of removal expenses and temporary accommodation;
(c) cl 50.5 in respect of an employee’s “usual place of work” which is deemed to be the employee’s “ATO office”;
(d) cl 74 in respect of permanent relocation of employees between offices;
(e) cl 87 in respect of ATO office accommodation; and
(f) sch 4 in respect of workplace duties allowances for roles such as First Aid Officer, Site First Aid coordinator, Emergency Warden, Chief Emergency Warden, and Wellbeing Site Representative;
(3) for example, cl 74.1 provides that it applies “where the ATO proposes to permanently move employees between buildings in the same city” and cl 87 provides:
87.1 The ATO is committed to providing high quality office accommodation that meets the professional needs of employees and the nature of the employees’ work.
87.2 The ATO will continue to make more effective use of space, greater use of flexible work arrangements and rationalise accommodation holdings.
87.3 Where a decision has been made to have new accommodation or modify existing accommodation, affected employees and where they choose, their representatives will be consulted;
(4) the contemplated formal working from home arrangement by agreement under cl 50 is to be between the ATO and “an employee”. That is, the contemplated arrangement is an arrangement to be worked out on an employee-by-employee basis. This accords with the background fact of the large number of ATO employees spread across numerous office locations working in different sections under different managers with different operational needs, with a small number requiring some capacity to work from home on required days a week due to individual needs;
(5) the contemplated arrangement is an arrangement required to be “suitable for both the employee and ATO, provided ATO operational requirements can continue to be met”. This, along with the whole of cl 50, indicates what might be described as the “default setting” for ATO employees covered by the EA. The “default setting” is for employees to work from the office. Clause 50 enables an exception to that “default setting”. The exception is an individual employee and manager arrangement enabling an employee to work from home as they wish, but provided the ATO operational requirements can continue to be met. The assumptions underlying cl 50 are that:
(a) the ATO’s operational requirements will ordinarily be met by employees working in ATO offices;
(b) the individual employee may seek to work from home by making a request to their manager; and
(c) the overriding requirement is that the ATO’s operational requirements can continue to be met; and
(6) the nature of cl 50 as a potential individual employee initiated exception to the “default setting” of working from the office is also apparent from:
(a) cl 50.2(c) which provides that the arrangement to be reached “must outline arrangements for cost of establishment” and cl 50.6 that the delegate “may approve for the ATO to meet all or part of the costs of establishing a working at home arrangement”. This enables the ATO to either meet the whole or part of the establishment costs or to require the employee to meet the whole or part of the establishment costs. If an employee’s ordinary place of work was their home it would be unusual for there to be provisions such as cll 50.2(c) and 50.6. These provisions recognise that the arrangement, in effect, is for the benefit of the individual employee and that, as a result, the individual employee might have to pay something to take the benefit of the exception from the “default setting” of working from the office;
(b) cl 50.3 which enables the ATO to terminate, not the employment of the employee, but the working from home arrangement if the employee fails to comply with the agreed arrangements for home based work;
(c) cl 50.5 which provides that apart from situations covered by cl 42.1 (relating to field work) the employee’s ATO office is deemed to be their usual place of work for the purposes of any work travel;
(d) cl 50.7 that a delegate may approve “ad hoc periods of working away from the office on a case by case basis”;
(e) cl 50.8 that approval “may be given for employees to work at home while they are suffering from a minor illness or injury, or have responsibility for another person who needs minor care”; and
(f) cl 50.9 that working at home arrangements may be suspended on a short-term basis due to operational requirements.
265 Accordingly, it is apparent that cl 50 contemplates that:
(1) ATO employees work from an ATO office;
(2) ATO operational requirements are met by ATO employees working from an ATO office;
(3) an individual employee may have a reason to wish to work from home;
(4) an individual employee can request their manager/delegate to enter a work from home arrangement;
(5) a manager/delegate has authority to enter into an arrangement as requested by an individual employee;
(6) the arrangement must meet ATO operational requirements;
(7) the arrangement must have certain other features including termination or suspension as described in which event the employee will work from the office; and
(8) the ATO may or may not pay for the establishment costs of the arrangement, reflecting the fact that the arrangement is at the request, and for the benefit of, the employee and not the ATO.
266 In other words, while cl 50 does not, in terms, refer to an employee requesting that the employee’s manager (on behalf of the ATO) agree to the employee being permitted to work from home, this is how cl 50 should be construed. This construction, of cl 50 applying to an employee seeking permission from their manager to agree (on behalf of the ATO) to the employee being permitted to work from home, results from:
(1) the “default setting” of employees working from an ATO office apparent from the other provisions of the EA discussed above (eg cll 28, 29–30, 74, 50.4, 50.5, 87, and Sch 4), indicating that working from home is an exception under cl 50;
(2) the assumption in the provisions of the EA, as discussed above, that the ATO’s operational requirements are met by ATO employees working from an ATO office, meaning that the “default setting” is appropriate for the ATO; and
(3) the need for an agreement to be reached between an employee and their manager in cl 50.1 “when it is suitable for both the employee and ATO, provided ATO operational requirements can continue to be met”. While, in theory, the ATO could initiate such an agreement with an individual employee, it is apparent that such a possibility is not what cl 50 contemplates given:
(a) the matters in (1) and (2) above;
(b) the fact that it is the ATO which has the right of termination and suspension under cll 50.3 and 50.9;
(c) the fact that the costs of establishment of the working from home arrangement are not necessarily to be paid by the ATO under cll 50.2(c) and 50.5; and
(d) cll 50.7 and 50.8 which both refer to the giving of approval to an employee working from home.
267 I consider that, construed in context and having regard to its evident purpose (to provide employees with a capacity to obtain an arrangement from the ATO to work from home as an exception to the default assumption in the EA of employees working from an ATO office) and the realities of the ATO’s enterprise, the field of operation of cl 50 is apparent. It applies to any individual employee requesting a manager/delegate to permit the employee to work from home rather than from their regular ATO office. It does not apply to any decision of the ATO that employees either generally or, for example, in a particular office (or indeed, an individual employee) must or should work from home for a period.
268 Accordingly, I agree with the respondents that cl 50 is not a code. It has a particular field of operation which is an employee requesting a manager/delegate to permit the employee to work from home rather than from their regular ATO office. As the respondents put it:
The ATO Enterprise Agreement contemplates a normative premise for work to be performed in the office, and for arrangements made under clause 50.1 to be an agreement varying that norm. So much is clear from the requirements in clause 50 for agreement to be reached before an employee may work from home (as opposed to agreement being required before an employee works in the office). It would never have been in the contemplation of those making the agreement that clause 50.1 would have applied to the arrangements governing work from home in circumstances where the normative presumption of work from the office was inverted.
269 The “inversion” I perceive is that the background, text, context and purpose of cl 50 expose that it is concerned with an employee asking the ATO if the employee will be permitted to work from home. That is the field covered by cl 50. The clause has nothing to do with the ATO itself directing, requiring, facilitating or encouraging employees to work from home. If the ATO itself directs, requires, facilitates or encourages employees (or an employee) to work from home then a number of the provisions of cl 50 would be redundant. On that premise:
(1) the proviso that “ATO operational requirements can continue to be met” in cl 50.1 would be moot because the ATO must be taken to be satisfied of that fact or it would not direct, require, facilitate or encourage employees (or an employee) to work from home; and
(2) the termination/suspension provisions in cll 50.2(d) and 50.9 would not be in the same terms. If the initiator of the working from home arrangement is the ATO then the ATO would also need to be able to direct or require the employee to work from the employee’s regular ATO office as necessary.
270 Put the pandemic to one side. Assume, for example, a particular ATO office is determined to be structurally unsafe, the source of a cancer cluster, subject to asbestos exposure levels that are unsafe, is flooded, or is destroyed by fire or the like. The ATO would not be bound to use cl 50 to implement working from home agreements (if necessary) for those employees. It would not be bound to do so because the clause has nothing to do with the ATO arranging for employees to work from home by reason of, at the least, reasonably perceived necessity. The clause is about an employee requesting the ATO to permit the employee to work from home. An employee who wishes to work from home and arranges to do so under cl 50 needs the certainty that the arrangement can continue for a reasonable period provided they uphold their end of the agreement about the employee working from home. This is why the arrangement can only be terminated without notice if the employee fails to comply with the agreed arrangements for home based work as provided for in cl 50.3. Clause 50.3 does not say that the ATO cannot terminate a working at home arrangement if the employee fails to comply with the agreed arrangements for home based work, but this is what the clause means. An employee would hardly terminate their own working at home arrangement because the employee has failed to comply with the agreed arrangements for home based work. It is obvious that cl 50.3 has been included to prevent the ATO from terminating a working at home arrangement without cause.
271 Equally, it is obvious that:
(1) it is the manager who will approve a working at home arrangement sought by an employee under cl 50.1 despite cl 50.1 not saying that in those terms; and
(2) it is the ATO’s operational requirements (and not the wishes of the employee) that are contemplated in cl 50.9 as enabling a suspension of the working at home arrangement. In this regard:
(a) cl 50.9 also does not say that the ATO may suspend a working at home arrangement due to its operational requirements, but this is what it means;
(b) in common with cl 50.1, cl 50.9 uses a form of drafting that suggests some kind of mutuality in the “arrangements” when this is a fiction. In the case of cl 50.9, this fiction is exposed by cll 50.9(a)–(d) which make plain that the clause is dealing with the ATO (not the employee) suspending the working at home arrangement due to the ATO’s (not the employee’s) operational requirements. In the case of cl 50.1, the exposure of the fiction is apparent from the fact that it is the ATO’s operational requirements which condition the entry into any working at home arrangement. It is the manager, not the employee, who determines the ATO’s operational requirements. Accordingly, under cl 50.1, it is the manager, not the employee, who decides if the working at home arrangement should or should not be agreed; and
(c) the notice before termination provision in cl 50.2(d) is for the benefit of the employee, not the ATO. Again, while cl 50.2(d) does not say so in terms, the provision that a working at home arrangement can be terminated by agreement or on four weeks’ notice is present to prevent the ATO from requiring an employee to return to the ATO office other than on four weeks’ notice if neither cll 50.3 nor 50.9 are engaged.
272 The fact that an enterprise agreement may not regulate every aspect of the employment relationship and may not be a code is not revolutionary. For example, this EA does not expressly state that an ATO employee must work from an ATO office unless the employee has an arrangement or approval under cl 50. But this must be so and is assumed to be so by the EA. Further, this EA does not say that an ATO employee must work from the ATO office to which they have been assigned unless they have approval to do otherwise. Again, however, this must be so and is assumed by the EA to be so. Nor is it revolutionary that an enterprise agreement may express rights and obligations in terms suggesting mutuality when, in truth, the rights are for the benefit of one party and the obligations are imposed on the other party.
273 In present case the capacity of the ATO to direct or require employees (or an employee) to work from home by reason of, at the least, some reasonably perceived necessity is not found in the EA (although such a right may be incorporated in an enterprise agreement or award as in R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday; Ex parte Sullivan [1938] HCA 44; (1938) 60 CLR 601; see also Ridd at [96], [105]). Section 13(5) of the PS Act provides that “[a]n APS employee must comply with any lawful and reasonable direction given by someone in the employee’s Agency who has authority to give the direction”. Even absent that provision in the PS Act, the employment relationship generally allows the giving of lawful and reasonable directions by an employer to an employee.
274 But for present purposes, the relevant point is that the assumption that cl 50 is a code governing every possible circumstance in which an employee might work from home is belied by, at the least, s 13(5) of the PS Act. It is also belied by the text and context of cl 50 which disclose that the scope of the provision is an employee requesting the ATO to permit the employee to work from home. The clause has nothing to say about the ATO itself directing, requiring, facilitating or encouraging an employee or employees to work from home (other than that the clause is part of the overall scheme of the EA that recognises that the ordinary position is that employees will work from the office).
275 Take another example. An employee has an infectious disease. The ATO must have a power (again, most probably, s 13(5) of the PS Act) to require that employee to work from home for the period the person is contagious. But that has nothing to do with cl 50. The employee is not requesting permission to work from home and the ATO is not giving that permission by entering into an arrangement as contemplated by cl 50. The ATO is requiring that employee to work from home. The fact that this might involve an arrangement between the employee and the employee’s manager does not mean that cl 50 is engaged. It also does not mean that the manager is “approving” an ad hoc period of working from home under cl 50.7. The employee may not wish to work from home, but the ATO can still direct, require, facilitate or encourage the employee to do so. Again, this is because cl 50 as a whole is about an employee requesting the ATO’s permission to work from home.
276 We come now to the pandemic. The ATO never directed or required its employees to work from home during the pandemic. It encouraged and facilitated them doing so once it had the operational (IT and other equipment) capacity in place. But the steps the ATO took, including the WFH Guide, had nothing to do with an individual employee or employees requesting that they be permitted to work from home for their own work-life balance or needs. This is so whether or not an individual employee or employees in fact wanted to work from home (or even requested that they be permitted to work from home due to the pandemic). Unsurprisingly, some (perhaps many) ATO employees wanted to work from home as a result of the pandemic. However, the determinative facts for present purposes are that: (a) the ATO wanted employees to work from home to keep their employees safe and enable the ATO to keep providing services to the public, (b) the ATO developed an ATO initiated response to the pandemic, (c) an important part of that ATO initiated response was the ATO taking steps to transition a large part of its workforce from working in the office to working from home, and (d) the WFH Guide was part of that response. Everything the ATO did and any employee did as part of that ATO initiated response was done under the auspices of that ATO response, not cl 50 of the EA.
277 This is not to suggest that cl 50 of the EA was suspended or inoperative by reason of the ATO’s response. Clause 50 and the existing Working at home policy continued. An employee wishing to avail themselves of a formal working from home arrangement under cl 50.1, an ad hoc arrangement under cl 50.7, or an approval under cl 50.8 still had the entitlement to request to do so.
278 Contrary to the ASU’s approach, the particular provisions of the WFH Guide are immaterial to the proper construction of cl 50. The provisions of the WFH Guide are merely the facts. The question is whether cl 50, properly construed, applies to the facts. The answer is no, because cl 50 is concerned only with an employee requesting a manager/delegate to permit the employee to work from home to meet the needs or wishes of the employee. It is not about the ATO directing, requiring, facilitating, or encouraging any employee or employees to work from home.
279 The fact that the WFH Guide was in part lifted from the pre-existing Working at home policy is immaterial. So too is the fact that the WFH Guide involved an individual employee to individual manager agreement. This focus of the ASU on these matters (that is, the similarities in subject-matter between the existing Working at home policy associated with cl 50 and the WFH Guide forming part of the ATO’s response to the pandemic) misses the essential point. The essential point is that the ATO initiated a response to the pandemic. Everything it did which is challenged by the ASU was part of the ATO initiated response. Clause 50, on its own terms, has nothing to do with ATO initiated action to direct, require, facilitate or encourage employees to work from home.
280 This is evident from the first iteration WFH Guide itself. The document’s front page says:
Working from home
COVID-19 Response
281 The “response” is the response of the ATO.
282 It then says:
This guide is intended to help you transition into a work from home situation in order to continue to serve the public.
283 In other words, the ATO is saying to employees this is about the ATO facilitating the employee to work from home. It is not about the employee requesting permission from the ATO to work from home.
284 The decision tree for an immediate site shutdown reinforces that the WFH Guide is the ATO facilitating and encouraging employees to work from home as part of its pandemic response. The concept of a site shutdown is driven by the pandemic alone. The end result of all steps in the decision tree is working from home, the only difference being the capacity to work from home immediately from 23 March 2020 or some days later.
285 If the site is not shut down, the WFH Guide says that “[d]uring our COVID-19 response, work from home agreements may be possible for all or part of your regular hours depending on available equipment and operational priorities”. Again, “our COVID-19 response” is the ATO’s response. It is the ATO’s initiative. The related decision tree also leads to one end, working from home.
286 The checklist and manager agreement provisions in the WFH Guide do not change the fact that we are dealing with ATO initiated action in response to the pandemic.
287 The fact that, in practice, under the WFH Guide an employee or employees may have initiated an agreement with their manager to work from home is beside the point. The entire operation involved the ATO’s response to the pandemic to facilitate and encourage employees to work from home. Any employee who wished to take the benefit of the ATO’s response to the pandemic was necessarily acting under the umbrella of that response. Their actions must be characterised recognising that reality. This is why I have said above that even if an employee requested that they be permitted to work from home due to the pandemic, the facts should be characterised as the employee acting under the umbrella of the ATO’s response which has nothing to do with cl 50.
288 I do not rule out the possibility that some employees, during the pandemic and because of the pandemic, might have wanted to make an arrangement under cl 50 with their manager. Indeed, the evidence indicates that some employees did enter into such an arrangement with their managers (and, I note, the ASU’s case is not that ATO did anything other than comply with the requirements of cl 50 in respect of any such arrangement). The point is that the ATO’s response to the pandemic enabled something which was previously the exception to the rule to become commonplace. That response was not regulated by cl 50 for the reasons I have given. An employee could not both take advantage of the ATO’s response to the pandemic and obtain a working from home arrangement under that response and also obtain an arrangement under cl 50 for the same hours/days of work. The two were mutually exclusive insofar as they might apply to the same hours/days of work. But the capacities afforded by the ATO’s pandemic response did not affect the capacities under cl 50 of the EA. The capacities were additional.
289 This later qualification – the same hours/days of work – is necessary because a working from home arrangement under cl 50 might apply to only some days or hours per week, with the employee otherwise working in the office under the “default setting” in the EA. On the introduction of the ATO’s response to the pandemic, an employee’s working from home arrangement under cl 50 would continue for the hours/days of work subject to that arrangement. The ATO’s response to the pandemic, however, enabled that employee to enter into an arrangement under the WFH Guide for the whole or some part of the balance of their working week. The employee would then be working from home under two arrangements. One under cl 50 for the hours/days of work the subject of the cl 50 arrangement, which would be subject to the provisions of cl 50. The other under the ATO’s response for the hours/days of work the subject of the WFH Guide, which would be subject to the provisions of the WFH Guide.
290 The ATO’s response to the pandemic involved it and its officers who are individual respondents in this proceeding facilitating or encouraging employees to work from home. Clause 50 was not engaged at any time in respect of that response and the respondents’ conduct.
291 Contrary to the ASU’s submissions, cll 4, 8, 100, 103, and 104 of the EA do not weigh against this construction.
292 Clause 4 involves principles. It says nothing specific about the proper construction of cl 50.
293 Clause 8 operates according to its terms. It concerns policies or guidelines relating to the provisions of the EA. It does not dictate the proper construction of cl 50.
294 Clause 100 concerns a dispute that relates to, relevantly, a matter arising under the EA. It is not necessary to determine if the ATO’s response to the pandemic involved a matter arising under the EA. The present issue is the application of cl 50 to the ATO’s response to the pandemic.
295 Clauses 103 and 104 cannot dictate the proper construction of cl 50. Those provisions say that the clauses and the identified provisions in Attachment D to the EA “exhaustively set out the terms and conditions of employment for” non-ongoing and casual employees. For the same reasons as already given above, these clauses cannot be read literally. For example, there is no provision of the EA that an employee must obey a lawful and reasonable direction of the Agency Head. But such an obligation is in s 13(5) of the PS Act and would be implied in the ordinary course into the employment relationship. The clauses only deal exhaustively with the topics which they cover. So much may be accepted. But employees remain bound to comply with any lawful and reasonable direction of the Agency Head and their delegates. As another example, there is no provision in the EA which expressly states that an employee must work from an ATO office, yet that is the assumption on which the EA operates, as cl 50 itself discloses. And there is no provision which says what ATO office an employee must work from, but the EA assumes that every employee will have a usual office (see, eg, cll 41.1, 41.5, 41.6, 50.5, and 87). These are mere examples of issues which must be regulated by the employer-employee contract and not the EA. The ASU’s approach does not recognise this reality.
296 There is no absurdity in the construction of cl 50 I consider to be correct. The ASU assumes (wrongly) that cl 50 is about any working from home by an employee. It is not. It is about an employee seeking the ATO’s permission to work from home. Once that is recognised the alleged absurdity does not exist (if it ever existed).
297 My construction does not permit the Commonwealth to “unilaterally opt in or out of” cl 50. It recognises that cl 50 is directed to an employee requesting the ATO for permission to work from home, not conduct of the ATO in itself initiating that an employee or employees must or should work from home. Nothing in my construction subverts cl 50. It operates according to its terms.
298 This construction is not about “abstract and self-serving appeals to…commercial or industrial sense” or an “appropriate” industrial and commercial need for notice of suspension or termination. It is one thing for an employee to seek the ATO’s permission to work from home and the ATO to agree to that arrangement. On that basis, where the arrangement is sought by and for the benefit of the employee, the notice of termination and suspension provisions make sense. Those provisions do not make obvious sense for action initiated by the ATO itself to direct, require, facilitate, or encourage an employee or employees to work from home in response to a particular need perceived by the ATO.
299 My construction does not give effect to abstract notions of fairness or justice. It merely gives effect to the text of cl 50 in context in accordance with the ordinary meaning of the words in that provision.
300 The ASU’s submission that the essential point is that “whether viewed through the lens of the WFH Guide or clause 50.1, the method to realise working from home in the ATO was by one-on-one arrangements agreed between an individual worker and their manager”, in my view, misses the essential point. It misses the fact that, on the ordinary meaning of the text, cl 50 is concerned only with an employee seeking ATO permission to work from home as an exception to the default position. It is not concerned with the ATO itself seeking to direct, require, facilitate, or encourage an employee or employees to work from home in response to a particular need perceived by the ATO. That circumstance is not covered by cl 50 or any other provision of the EA. Further, as I have said, it does not matter what the WFH Guide said about how employees should deal with managers and vice versa. What matters is that the WFH Guide was one, albeit important, element in the ATO’s own initiative or response to the pandemic. It was one part of the ATO seeking something from its employees (to work from home). It does not matter if, in that overall context, some or other employees in fact approached a manager to work from home under the WFH Guide.
301 It also follows that the ASU is wrong to contend that:
…if, as the respondents seem to say, the ATO was always prepared to entertain an arrangement under clause 50.1, insisting on the WFH Guide as distinct and as its preferred methodology is incongruous and negates the constructional stance of the respondents based on commerciality and industrial purpose.
302 This does not follow. It involves the wrong focal length. In terms of the ATO’s own response to the pandemic, it initiated action to facilitate and encourage all employees who could so to work from home. In so doing, as I have said, it was not bound by cl 50. This was not the ATO making some kind of choice between cl 50 and something it preferred. It was about the ATO initiating its own response to the pandemic which was not regulated by cl 50.
303 In this context, it was also for the ATO to decide how its response was to be implemented and the length of time of its implementation. It is not the case that, in this context, “the industrial purpose of providing for notice and suspension and for rules governing when suspension could occur and for how long are just as present if the instigating circumstance is a pandemic”. In the context of the proper construction of cl 50, the focus on the fact of the pandemic as the cause of the ATO’s response is a distraction. It would be relevant if the ATO had directed all employees to work from home due to the pandemic, as ATO directions as an employer have to be lawful and reasonable. As I have said, however, the correct focus for construing cl 50 is the fact of an employee seeking ATO permission to work from home as an exception to the ordinary course of working from an ATO office, not the ATO itself directing, requiring, facilitating, or encouraging an employee or employees to work from home in response to a particular need perceived by the ATO.
304 Consistently with this, I should also stress that my construction does not involve any notion of a “pandemic exception” to cl 50. I am not suggesting that there are any exceptions to cl 50. I am saying that cl 50 is engaged in the circumstances it must be understood to describe when construed as a whole and in accordance with the ordinary meaning of the words used – as applying when an employee seeks permission from the ATO to work from home as an exception to the ordinary position of working from the office.
305 Nor is it relevant to my construction that, had they considered that cl 50 of the EA provided a suitable mechanism to achieve their objectives, the ATO officers could have used cl 50 arrangements, including ad hoc arrangements under cl 50.7, as part of the ATO’s pandemic response. The existence of that potential does not affect the proper construction of cl 50.
306 I also do not accept that the ASU’s submission that “no rationale …can persuasively explain why it was necessary to address the pandemic outside of the parameters of cl 50.1 of the” EA, is relevant to the proper construction of cl 50. In addition, the rationale of the ATO officers, that an extraordinary approach was required for extraordinary circumstances, in effect inverting the “default setting” of the EA, does persuasively explain why it was necessary to address the pandemic outside of the parameters of cl 50 of the EA.
307 It also follows that, whatever Mr Moore might have thought, the ATO’s response to the pandemic did not involve the operation of cl 50.7 of the EA (the ad hoc work from home arrangement provision). No part of cl 50 was engaged by the ATO’s response to the pandemic.
308 To the extent that the ASU’s case depends on the proposition that the impugned conduct was subject to the operation of cl 50 of the EA, that case must be rejected.
3.3.2 Clause 8
309 Clause 8 of the EA is in section B which is entitled “Employee involvement”.
310 It is apparent that the provisions in section B operate at different levels of generality.
311 Accordingly, cl 6 relates to the NCF which, under cl 6.1, is to “facilitate communication and consultation on ATO-wide employment and workplace relations matters”. The ATO’s pandemic response is such a matter.
312 Clause 7 is important. It provides crucial context to cl 8. Clause 7 of the EA is in these terms:
7. Consultation
7.1 This clause applies if the ATO:
a) has made a definite decision to introduce a major change to production, program, organisation, structure or technology in relation to its enterprise that is likely to have a significant effect on employees; or
b) proposes to introduce a change to the regular roster or ordinary hours of work of employees.
Major change
7.2 For a major change referred to in subclause 7.1a:
a) the ATO must notify the relevant employees of the decision to introduce the major change; and
b) subclauses 7.3 to 7.9 apply.
7.3 The relevant employees may appoint a representative for the purposes of the procedures in this clause.
7.4 If:
a) a relevant employee appoints, or relevant employees appoint, a representative for the purposes of consultation; and
b) the employee or employees advise the ATO of the identity of the representative;
the ATO must recognise the representative.
7.5 As soon as practicable after making its decision, the ATO must:
a) discuss with the relevant employees:
i. the introduction of the change; and
ii. the effect the change is likely to have on the employees; and
iii. measures the ATO is taking to avert or mitigate the adverse effect of the change on the employees; and
b) for the purposes of the discussion – provide, in writing, to the relevant employees:
i. all relevant information about the change including the nature of the change proposed; and
ii. information about the expected effects of the change on the employees; and
iii. any other matters likely to affect the employees.
7.6 However, the ATO is not required to disclose confidential or commercially sensitive information to the relevant employees.
7.7 The ATO must give prompt and genuine consideration to matters raised about the major change by the relevant employees.
7.8 If a term in this Agreement provides for a major change to production, program, organisation, structure or technology in relation to the enterprise of the ATO, the requirements set out in subclause 7.2(a) and subclauses 7.3 and 7.5 are taken not to apply.
7.9 In this clause, a major change is likely to have a significant effect on employees if it results in:
a) the termination of the employment of employees; or
b) major change to the composition, operation or size of the ATO’s workforce or to the skills required of employees; or
c) the elimination or diminution of job opportunities (including opportunities for promotion or tenure); or
d) the alteration of hours of work; or
e) the need to retrain employees; or
f) the need to relocate employees to another workplace; or
g) the restructuring of jobs.
Change to regular roster or ordinary hours of work
7.10 For a change referred to in subclause 7.1(b):
a) the ATO must notify the relevant employees of the proposed change; and
b) subclauses 7.11 to 7.15 apply.
…
313 I do not think it can be doubted that the ATO’s pandemic response involved a major change to production and organisation within the meaning of cl 7.1 of the EA. The ATO’s response involved facilitating and encouraging much of its workforce to work from home in circumstances where under the EA the default position was working from the office. The ATO did notify its employees of its decision to introduce the major change as required by cl 7.2(a) of the EA. As far as I am aware the employees did not appoint a representative for the purposes of the procedures in cl 7 as provided for in cl 7.3. As a result, cl 7.4 was not engaged. The ATO did provide, in writing, all information required by cl 7.5(b). In respect of cl 7.5(a), a “discussion” may occur in many forms. The WFH Guide itself facilitated such discussions between employees and their managers and I would infer that such discussions occurred given that on any view a substantial part of the ATO’s employees were shifted from work in the office to work at home as part of the ATO’s response to the pandemic. It is not apparent that the ATO did other than “give prompt and genuine consideration to matters raised about the major change by the relevant employees” as provided for in cl 7.7.
314 The reason I emphasise cl 7 is that it involves a recognition of a fundamental difference between a major change in ATO operations for the ATO’s own reasons and a change in policy relating to some or other provision of the EA. While cl 7 is headed “Consultation” it is not an obligation to consult and take into account and possibly modify an ATO decision before the decision is implemented. Clause 7 recognises that for major changes the ATO wishes to implement which are likely to have a significant effect on employees and may be outside the contemplation of the EA at the time it was made, there must be a different process from that for which cl 8 provides. Clause 8 is about policies and guidelines relating to provisions of the EA. That is, the focus is policies and guidelines relating to known matters covered by the EA. Clause 7, however, is related to major changes which are likely to have a significant effect on employees, but are not mere policies and guidelines relating to known matters covered by the EA.
315 Clause 7 recognises, as it must, that the ATO (given its functions, importance, and size) must be able to make “major change[s] to production, program, organisation, structure or technology in relation to its enterprise that [are] likely to have a significant effect on employees”. In that event, cl 7 requires it to notify the relevant employees of the decision to introduce the major change, to provide the required information about the change, to discuss the change with employees, to give prompt and genuine consideration to matters raised about the major change by the relevant employees, and to recognise any employee nominated representative for that purpose. But the decision is for the ATO to make. Moreover, the decision is to be made before the procedures in cl 7 apply. While the ATO must give prompt and genuine consideration to matters raised about the major change by the relevant employees, that does not have to occur before the decision is made. This is clear from: (a) cl 7.2(a) which refers to the ATO notifying the relevant employees of the decision to introduce the major change (that is, the decision is one made before notification), (b) cl 7.5 which refers to “[a]s soon as practicable after making its decision, the ATO must…”, (c) cl 7.5 insofar as it refers to “the change” as a matter already decided upon, even if not introduced, and (d) cl 7.7 which also refers to “the major change”. In this context, the obligation in cl 7.7 is one of prompt and genuine consideration enabling the ATO to mould or reconsider its decision as it sees fit.
316 In other words, cl 7 is not about consultation before a major change of the kind covered by that provision. It still concerns employee involvement, but it is involvement of a different kind from a consultation provision requiring consultation before a decision is made.
317 Clause 8, the focus of the ASU, has to be understood in the context of cl 7. It may be that, in a particular case, a major change to which cl 7 applies also involves developing a new policy or guideline or changing an existing policy or guideline that relates to the provisions of the EA as provided for in cl 8.1. If that is so, both cll 7 and 8 are engaged. But cl 7 has a different purpose and operation from cl 8. A major change within the meaning of cl 7.1 may not involve developing a new policy or guideline or changing an existing policy or guideline that relates to the provisions of the EA. This is because such a major change may involve an aspect of the ATO’s “production, program, organisation, structure or technology in relation to its enterprise” that does not relate to any provision of the EA but involves a matter not contemplated at the time the EA was made. In other words, cl 7 (unlike cl 8) allows for unforeseen events. If those events are likely to have a significant effect on employees, then cl 7(a) is engaged and cll 7.2–7.9 apply.
318 I consider this important because it indicates that the EA recognises that not every possible subject matter capable of having a significant effect on employees is a matter that relates to the provisions of the EA. If that were so, cl 7 would be unnecessary. Clause 8 would apply to every ATO decision and consultation in accordance with cl 8 (that is, prior to developing or changing a policy) would be required. Given the difference between cl 7 (discussion after the decision is made and prompt and genuine consideration to matters raised about the major change by the relevant employees) and cl 8 (consultation for a reasonable period which should be at least two weeks and consideration of any comments or feedback prior to finalising the policy or guideline), the EA must be taken to contemplate circumstances in which cl 7 but not cl 8 is engaged. This further indicates the appropriate level of focus required to give meaning to the words “developing a new policy or guideline that relates to the provisions of this Agreement” and “changing an existing policy or guideline that relates to the provisions of this Agreement, where that change is significant or substantial” and, in particular, the closeness of the relationship between the policy or guideline and the EA which cl 8.1 contemplates.
319 The ASU’s submissions do not recognise these important textual and contextual considerations. The ASU submitted that:
The phrase “relates to” denotes a relationship between the subject matter of the policy or guideline and the provisions of the ATO Enterprise Agreement. The relationship may be direct or indirect. No narrow view of the relationship is warranted. To do so would be inconsistent with the ordinary meaning of “relates to” and at odds with the constructional principles that apply to the interpretation of enterprise agreements. Those principles support a broad view of the requisite connection.
320 The starting point, however, is that terms of connection such as “relates to” are to be construed in context. In R v Khazaal [2012] HCA 26; (2012) 246 CLR 601 at [31] French CJ said:
Relational terms such as “connected with” appear in a variety of statutory settings. Other examples are: “in relation to”; “in respect of”; “in connection with”; and “in”. They may refer to a relationship between two subjects which may be the same or different and may encompass activities, events, persons or things. They may denote relationships which are causal or temporal or relationships of similarity or difference. The task of construing such terms does not involve the resolution of ambiguity. They are ambulatory words and may be designed to cover a variety of subjects and a variety of relationships between those subjects. The nature and breadth of the relationships they cover will depend upon their statutory context and purpose.
321 It may be accepted that “relating to” and similar connection phrases generally denote a broad and not necessarily causal connection, but the overriding consideration of giving meaning in context remains paramount. The decision to which the ASU referred, Walsh v Greater Metropolitan Cemeteries Trust (No 2) [2014] FCA 456; (2014) 243 IR 468 at [41] (per Bromberg J), does not suggest otherwise. This does not mean that a “narrow or pedantic approach” should be taken to the construction of cl 8 or any provision of the EA, contrary to the summary of principles in, for example, Skene at [197]. It means that, in construing cl 8, the operation of cl 7 must also be recognised.
322 Accordingly, I do not accept that cll 8.1(a) or (b) are to be construed on the basis that any connection between any subject matter of or in a policy or guideline and any subject matter in a provision of the EA is sufficient to engage cl 8.1. Rather, the required level of connection involves a policy or guideline which affects the operation of a provision of the EA in some real and material way. In this regard, cl 8.2 (“[a]ny such policies and guidelines are not incorporated into, and do not form part of, this Agreement. A term of this Agreement prevails to the extent of any inconsistency with a policy, guideline or procedure”), does not mean that a policy or guideline may not affect the operation of the EA in some real and material way.
323 To take one example, the Working at home policy existed before, during, and after the ATO’s pandemic response. Clause 50 of the EA does not specify the length of any arrangement about working from home. The Working at home policy specifies that such arrangements under cl 50 “apply for a maximum period of 12 months”. The Working at home policy affects the operation of cl 50 of the EA in this way.
324 Assume the ATO wanted to change the Working at home policy to reduce the maximum period of an arrangement to three months. This would be a change that relates to the provisions of the EA because the Working at home policy is directed to details about the making and terms of an arrangement under cl 50 of the EA. If the reduction of the maximum period of the arrangement to three months is a significant or substantial change then cl 8.1(b) is engaged. In that event the ATO would have to consult employees and their representatives for a reasonable period, which should be at least two weeks, and consider any comments or feedback prior to finalising the policy or guideline.
325 However, the fact that the subject matter of cl 50 is working from home does not mean that any new ATO policy or guideline about working from home is a policy or guideline that relates to the EA. As discussed, cl 50 is concerned with an employee of the ATO requesting permission from the ATO to work from home. It is not concerned with the ATO itself directing, requiring, facilitating, or encouraging an employee or employees to work from home. Take the example of an ATO office destroyed or rendered uninhabitable. An ATO policy or guideline to the effect that, until further notice, employees could choose to work from home or contact their manager to make an arrangement to work from another ATO office (including a checklist to be used to ensure the other office has capacity as required) would not be a policy that relates to cl 50 merely because the subject matter is working from home. Such a policy or guideline would not affect the operation of cl 50 of the EA and therefore cl 8 would not be engaged.
326 I reach the same conclusion about the WFH Guide in all of its versions. The subject matter of the WFH Guide is working from home, but it could not affect the operation of cl 50 or, for that matter, the existing Working at home policy. The fact that the ATO wanted and encouraged employees to use the WFH Guide as the means to arrange working from home during the pandemic reflects nothing but the fact that the ATO instituted a whole of ATO approach to respond to a range of issues the pandemic presented. One issue was the ATO’s desire to ensure the health and safety of its employees and the capacity of the ATO to function (which are interdependent issues). The ATO’s initiative was to enable as many employees as possible to work from home. The ATO was entitled to give effect to that initiative through the WFH Guide. As explained, in so doing, the ATO was not bound to comply with cl 50.
327 To forestall a potential argument to the contrary, this does not involve elevating form over substance (indeed, quite the contrary). If the ATO had chosen to implement its response to the pandemic by, for example, including the new ATO response in the existing Working at home policy then (assuming the response was the same in substance as the ATO’s response in fact in this case), I do not consider that cl 8.1(b) would be engaged merely because the form of the new policy is a change (by inclusion) to the existing policy. To so conclude would be to give precedence to form over substance. The reason for my view that cl 8.1 would not apply is that to so include the new policy in the old policy document would not have involved “changing an existing policy or guideline that relates to the provisions of this Agreement” under cl 8.1. Rather, the old policy would have remained unchanged and the new policy included would not relate to the provisions of the EA.
328 For these reasons, I do not accept that any action of the respondents in respect of the adoption or implementation of the WFH Guide (in any of its versions) involved a contravention of cl 8 of the EA. Clause 8 was not engaged.
329 It follows that, to the extent that the ASU’s case depends on the proposition that the impugned conduct in respect of the adoption or implementation of the WFH Guide (in any of its versions) was subject to the operation of cl 8 of the EA, that case must be rejected.
330 The ASU’s separate argument about the amendment to the ATO’s Working at home policy associated with cl 50 of the EA must also be considered. On 9 April 2020, the ATO amended the Working at home policy to add this statement under the “What you need to know” section:
Use the Working From Home Guide to perform work from home during this COVID-19 pandemic response.
331 Before considering the meaning of this statement it is convenient to explore cl 8 in greater detail. Examples may assist.
332 Assume a new or changed policy or guideline says what the ATO intends it to say, but the ATO wrongly believes the new or changed policy or guideline does not relate to the provisions of the EA or does not change an existing policy or guideline where that change is significant or substantial. In that event, I consider that a failure to consult about that new or changed policy or guideline would contravene cl 8 of the EA. This is because the criterion for engagement of cl 8 of the EA does not depend on the opinion or state of mind of the ATO but on the objective facts of a new policy or guideline that relates to the provisions of the EA or a change to an existing policy or guideline that relates to the provisions of the EA where that change is significant or substantial. That is, the ATO’s opinion does not determine the operation of cl 8.
333 Assume, however, a new or changed policy or guideline says something the ATO did not intend to say. What then is the policy or guideline for the purposes of cl 8 – the document saying what the ATO did not intend to say or the actual decision of the ATO as to the policy or guideline which has been incorrectly communicated to employees? It seems to me that the answer to this question will depend on the facts of the particular case. If, for example, the incorrectly worded document is issued then quickly withdrawn when the error was appreciated, it may well be that the document cannot have the status of a policy or guideline to which cl 8 attaches. Other factual possibilities are apparent. If the incorrect document has never been implemented or acted on in accordance with its incorrect wording, then that document may not have the status of a policy or guideline to which cl 8 attaches.
334 The statement inserted into the Working at home policy on 9 April 2020 is ambiguous.
335 It might mean that during the pandemic, employees could use the WFH Guide only to arrange to work from home and (implicitly) could not request a formal working from home arrangement under cl 50 of the EA. Alternatively, it might mean that the ATO wanted any employee who wished to take the benefit of the ATO’s pandemic response to work from home during the pandemic to do so under the WFH Guide and (implicitly) could nevertheless request a formal working from home arrangement under cl 50 of the EA.
336 The overall effect of the evidence as a whole is that the relevant ATO officers intended the latter meaning, not the former meaning. On the latter meaning, the change to the Working at home policy was not a new policy or guideline that relates to the provisions of the EA or a change to an existing policy or guideline that relates to the provisions of the EA where that change is significant or substantial. This is because the effect of the change would be merely to add an additional capacity for employees to work from home during the pandemic. On that basis, cl 8 of the EA would not apply to this change to the Working at home policy.
337 While I accept the amendment is ambiguous and it is possible that an employee might have been caused to wonder or be confused about the status of the Working at home policy during the ATO’s pandemic response, I consider the latter meaning is to be preferred. This is because the amendment: (a) does not say anything about cl 50 of the EA, and (b) says only use the WFH Guide during this COVID-19 pandemic response (which could mean only the ATO’s pandemic response).
338 I also consider that a reasonable and ordinary ATO employee would have understood that: (a) cl 50 was part of the EA, (b) the EA was not unilaterally changeable at the will of the ATO, (c) the ATO’s pandemic response was an exceptional response to an exceptional circumstance of unknown duration, (d) the quickest and easiest way to transition to working from home during and due to the pandemic was to use the WFH Guide, and (e) if the employee had a reason to wish to obtain a formal working from home arrangement under cl 50 they could make that request. On this basis, the change to the Working at home policy did not engage cl 8 of the EA as it was not a change that related to the provisions of the EA and/or was not a change that was significant or substantial.
4. ADVERSE ACTION ALLEGATIONS
4.1 Overriding answer
339 The overriding answer to the ASU’s adverse action case is that, as explained, neither cl 50 nor cl 8 of the EA applied to the ATO’s response to the pandemic in respect of any version of the WFH Guide. It follows that the ASU’s conception of the workplace rights under s 341(1) of the FW Act in the present case arising from the alleged application of cll 50 and 8 of the EA is unsustainable.
4.2 Statutory provisions
340 Under s 341(1) of the FW Act a person has a workplace right if the person:
(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c) is able to make a complaint or inquiry:
(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii) if the person is an employee – in relation to his or her employment.
341 A “process or proceedings under a workplace law or workplace instrument” is defined in s 341(2) and includes in s 341(2)(k) “any other process or proceedings under a workplace law or workplace instrument”.
342 A “workplace law” is defined in s 12 of the FW Act to include the Act. A “workplace instrument” is defined in the same section to mean an instrument that: (a) is made under, or recognised by, a workplace law, and (b) concerns the relationships between employers and employees. The EA, accordingly, is a workplace instrument. The ATO’s employees therefore have the benefit of the provisions of the EA as provided for in s 341(1)(a) of the FW Act.
343 Section 340(1) of the FW Act provides that:
(1) A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.
344 Section 342(1) includes a table which sets out circumstances in which a person takes adverse action against another person. Item 1 of the table includes an employer that:
(a) dismisses the employee; or
(b) injures the employee in his or her employment; or
(c) alters the position of the employee to the employee’s prejudice; or
(d) discriminates between the employee and other employees of the employer.
345 Section 345 of the FW Act provides that:
(1) A person must not knowingly or recklessly make a false or misleading representation about:
(a) the workplace rights of another person; or
(b) the exercise, or the effect of the exercise, of a workplace right by another person.
346 Under s 360, for the purposes of Pt 3.1, “a person takes action for a particular reason if the reasons for the action include that reason”.
347 Section 361(1) provides that:
If:
(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b) taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
4.3 The workplace rights
348 The ASU alleges three workplace rights as follows:
(1) a workplace right of an employee subject to a formal working at home arrangement under cl 50 of the EA to work at and from home unless and until the arrangement was terminated with four weeks’ notice or otherwise by agreement or suspended, subject to and in accordance with cl 50.9 of the EA, with at least one weeks’ notice or less by agreement (the Employee WFH Right);
(2) a workplace right of an employee to initiate, or participate in, the process of entry into formal working at home arrangement under cl 50 of the EA (the Process Participation Right); and
(3) a workplace right of an employee to the benefit of a formal working at home arrangement under cl 50 of the EA and the entitlements prescribed by cll 50.2(d) and 50.9 during any period that the employee was permitted to perform work at and from home under an arrangement to do so agreed with, and approved by, the employee’s manager, except for an ad hoc arrangement within the meaning of cl 50.7 of the EA (the WFH Content Right).
349 My response (using the same numbering) is:
(1) I accept the existence of the Employee WFH Right, but on the basis that the right would also be subject to cl 50.3 of the EA;
(2) I accept the existence of the Process Participation Right, but on the basis that the right is to initiate and participate in the process of entry into a formal working at home arrangement under cl 50 of the EA (consistent with my construction of cl 50 above); and
(3) I do not understand how the alleged WFH Content Right exists separately from the Employee WFH Right and the Process Participation Right.
350 In respect of the alleged WFH Content Right I accept that:
(1) s 341(1)(a) of the FW Act refers to a entitlement to a benefit under a workplace instrument;
(2) the concept of “entitled to the benefit of” includes the fact of the instrument and its particular content; and
(3) the concept of “entitled to the benefit of” protects against conduct motivated by the fact of the instrument as well as the particular benefits it confers: Construction, Forestry, Mining and Energy Union v State of Victoria [2013] FCA 445; (2013) 302 ALR 1 (CFMEU v Victoria) at [252].
351 My difficulty is in conceiving of the alleged WFH Content Right as a right separate from the combined effect of the Employee WFH Right and the Process Participation Right. In any event, if the WFH Content Right is not subsumed by those other rights, what I do not accept is that this right “reflects the exclusivity of clause 50.1 as a consequence of the status of the” EA. The misconception here is that the mere status of the EA dictates the construction of cl 50. I have explained the reasons for my construction of cl 50 above. On that construction, cl 50 has a field of operation in respect of employee requests to their ATO manager to be permitted to work from home under a formal working from home arrangement under cl 50.1 of the EA. Within that particular field, I accept that the relevant provisions of cl 50 are exclusive. Clause 50, however, has both in-built exceptions, being cll 50.7 and 50.8, and the confined field of operation which I have identified. Outside of that field is the ATO itself directing, requiring, facilitating, or encouraging employees to work from home.
352 This does not undermine the proposition, which I accept, that workplace rights are remedial and beneficial in nature: CFMEU v Victoria at [113]–[114].
4.4 The action
353 The alleged actions said to constitute a contravention of s 340 are the “Approval Requirement” and the “Return to the Office Requirement”.
354 The ASU submitted that the Approval Requirement was action taken by the Commonwealth to institute another, immediately operative, consensual method for work from home on and from 23 March 2020, and was not (as the respondents would have it) a mere announcement of an intention to act consistently with the processes set out in the WFH Guide. The Return to the Office Requirement was the requirement in the WFH Guide that an employee “[a]ttend the workplace when requested by your manager where appropriate and possible to do so”.
355 While characterising these matters as a mere announcement of an intention to act consistently with the processes set out in the WFH Guide (as the respondents did) is accurate, it also does not assist much in resolving the issues. The ATO was clearly and unequivocally initiating its response to the pandemic. It had to keep its employees working in the face of possible site shutdowns and widespread infection incapacitating a material number of its employees at any one time. It had to and did take action by initiating and implementing the ATO response to the pandemic. In so doing, it and the relevant officers took the view that the ATO’s response to the pandemic was for it to decide and did not have anything to do with cl 50 of the EA. For the reasons given, I consider that view was correct. But I also recognise that is not the end of the matter.
356 I agree with the ASU that s 341(1) contemplates potential adverse action against a person or persons who have the workplace rights as described in the section.
357 I do not agree with the ASU that:
The Approval Requirement promulgated by the Commonwealth operated on the choice of an employee to work at home. So does clause 50.1. Both specify a consensual method for making an “arrangement” with the Commonwealth. They secure the same outcome on the same subject. It is this that serves as the frame for considering the action “against” a particular person (albeit for the reasons stated above not necessarily a particular, specifically identified, person) or their interests. Those interests are of course expressed in clause 50 in relation to working at home.
358 As explained, cl 50.1 of the EA involves a choice of an employee to seek permission to work from home. While the ATO did not direct employees to work from home under its pandemic response and associated WFH Guide, it facilitated and encouraged employees to do so. While the ultimate decision remained that of the employee and, in that sense, was a choice of the employee, the choice was being made under the umbrella of the ATO’s response to the pandemic. It was not the choice contemplated by cl 50.1. The two did not “secure the same outcome on the same subject”. The subject was different (a formal working from home arrangement in accordance with cl 50 and subject to the applicable provisions of cl 50 or a formal working from home arrangement in accordance with the ATO’s response to the pandemic in accordance with the WFH Guide). The outcome was different (working from home under the formal working from home arrangement in accordance with cl 50 and subject to the applicable provisions of cl 50 or a formal working from home arrangement in accordance with the ATO’s response to the pandemic in accordance with the WFH Guide).
4.5 Injury/prejudice etc
359 I accept that:
(1) an employer that injures an employee in his or her employment has taken adverse action against that employee: s 342(1), item 1(b) of the table, in the FW Act;
(2) a deprivation or impairment of a right can constitute an injury in employment: Squires v Flight Stewards Association of Australia [1982] FCA 171; (1982) 2 IR 155 at 164; and
(3) a consensual process does not necessarily avoid prejudice or injury amounting to adverse action against a person or persons with a workplace right.
360 In Squires at 164 Ellicott J said that:
The words “injure in his employment” are in the context of s. 5 words of wide import. I do not regard them as referring only to financial injury or injury involving the deprivation of rights which the employee has under a contract of service. They are, in my view, applicable to any circumstances where an employee in the course of his employment is treated substantially differently to the manner in which he or she is ordinarily treated and where that treatment can be seen to be injurious or prejudicial.
361 In Squires the treatment could be seen to be “injurious or prejudicial” because the employer stood the employee down on full pay in response to a demand to do so from the union. It was not merely that the employee was treated substantially differently from the manner in which he or she is ordinarily treated which resulted in the injury. Such different treatment might be lawful and proper. The injury came from the nature of that different treatment. The facts of the present case are different.
362 Similarly, while altering the position of the employee to the employee’s prejudice extends to “any adverse affectation of, or deterioration in, the advantages enjoyed by the employee before the conduct in question” (Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) [1998] HCA 30; (1998) 195 CLR 1 at [4]), there is no such affectation of, or deterioration in, the advantages of the employee before the conduct in question if those advantages continue unaffected after the conduct in question. As Gordon J explained in Klein v Metropolitan Fire and Emergency Services Board [2012] FCA 1402; (2012) 208 FCR 178 at [86]:
1. the position is to be examined in the light of the circumstances of an individual employee (or group of similarly treated employees): Community and Public Sector Union v Telstra Corporation Limited [[2001] FCA 267; (2001) 107 FCR 93] at [17]–[21];
2. an employee’s position is to be taken at the time the conduct occurred and is to be assessed by reference to the employee’s then existing entitlements under the relevant industrial instrument: Burnie Port Corporation Pty Ltd v Maritime Union of Australia (2000) 104 FCR 440 at [23] and Australian Liquor, Hospitality & Miscellaneous Workers Union v Liquorland (Aust) Pty Ltd (2002) 114 IR 165 at [25]; and
3. the employee, individually speaking, must be in a worse situation after the relevant conduct than before it and the deterioration must have been caused by the employer’s conduct: BHP Iron Ore Pty Ltd v Australian Workers’ Union (2000) 102 FCR 97 at [35]–[37] and [45]–[48]; Australian Workers Union v BHP Iron-Ore Pty Ltd (2001) 106 FCR 482 at [52]–[54]; Community and Public Sector Union v Telstra Corporation Limited at [17]–[21] and Finance Sector Union of Australia v Commonwealth Bank of Australia Ltd (2005) 147 FCR 158 at [23]–[30];
4. if the deterioration occurs by operation of the law or an industrial instrument the employer will not have altered the position of the employees individually speaking; the change in the position of the employees individually speaking occurs by operation of the relevant legislation rather than the conduct of the employer in making the enterprise agreement: Australian Liquor, Hospitality & Miscellaneous Workers Union v Liquorland (Aust) Pty Ltd (2002) 114 IR 165 at [24]–[26], [30] and [37].
363 The mere facts of the promulgation and implementation of the ATO’s response to the pandemic including the WFH Guide did not make any employee of the ATO worse off because, in law and in fact, cl 50 of the EA continued unaffected.
364 It follows that, for the reasons already given, I reject the ASU’s case that:
(1) the WFH Guide promulgated an exception for the pandemic that assumed a limitation on the scope of cl 50.1, a limitation that had no basis in the EA;
(2) the effect of the Approval Requirement was to secure for the Commonwealth the benefit of the Return to the Office Requirement by unilaterally carving out a working from home exception from the general standard in cl 50.1 which sidelined that standard in favour of the Commonwealth’s new scheme;
(3) the Commonwealth procured a means to allow employees to work at home and a means to “recall” an employee to the office without the guarantees stipulated by cll 50.2(d) and 50.9(a);
(4) the Commonwealth avoided the obligation stipulated by cl 50.9(b) to, “in reaching a decision on suspension”, take into account any hardship an employee may have and the obligation specified in cl 50.9(c) to allow a return to working from home after eight weeks, or longer by agreement. The effect was to substitute employer obligations for employer discretions; and
(5) the promulgation of the WFH Guide inclusive of the Return to the Office Requirement constituted a failure or refusal to apply the WFH Content Right by applying another consensual procedure to procure the same outcome on inferior terms. Further, the Return to the Office Requirement may be seen as a new criterion for the cessation of work at home.
365 I do not accept any of these contentions because they are based on a construction of cl 50 of the EA that I consider to be wrong. Specifically:
(1) cll 50.1 and 50.2 of the EA have the confined field of operation I have described which did not extend to the ATO response to the pandemic;
(2) the ATO’s response to the pandemic operated on its own terms outside of the scope of cl 50 of the EA;
(3) the guarantees of notice stipulated by cll 50.2(d) and 50.9(a) were not part of the ATO’s response to the pandemic and, accordingly, were not being “sidelined” or avoided; and
(4) the terms of cll 50.9(b) and (c) were not part of the ATO’s response to the pandemic and, accordingly, were not being “sidelined” or avoided.
366 I agree with the ASU that the Return to the Office Requirement was fundamental to the ATO’s response to the pandemic and the associated scheme contained in the WFH Guide. I do not agree that the Return to the Office Requirement was fundamentally inconsistent with cl 50 or discriminated against those who had followed the instructions to use the WFH Guide to set up a working from home arrangement due to the pandemic. The ATO was entitled to set up its pandemic response. In so doing, it could have taken the view that it would leave it to each employee to decide if they wished to seek a formal working from home arrangement under cl 50.1. That, however, is immaterial. It is easy to see why the ATO chose not to do so on the basis that such a decision would not be an appropriate response by it to the pandemic. First, it wanted as many employees as possible to work from home for their safety and its operational need to keep functioning. Second, it wanted the transition to happen as quickly as its resource expansion would permit. Third, it was obliged to act in accordance with government and APS policy. Fourth, it wanted the flexibility to require working from the office if necessary and if it thought it safe for the employee to do so.
367 In wanting all these things, including the flexibility to require working from the office if necessary, the ATO was not trying to avoid cl 50 of the EA. It had no need to do so because cl 50 did not apply. The ATO was setting up its own response outside of cl 50, to meet its own requirements in which employee safety and continued ATO functioning (two interdependent concepts) were critical.
368 Contrary to the ASU’s submissions, the adverse effect of the ATO’s actions is not demonstrated by the fact that an employee could have requested a formal working from home arrangement under cl 50 and obtained the benefit of such an arrangement, but those employees who made their arrangement under the WFH Guide did not obtain that benefit. Those are the facts, but they demonstrate only the continued operation of cl 50 and the new operation of the ATO’s pandemic response outside of cl 50.
369 If the ASU’s case was that the ATO purported to suspend the operation of cl 50 of the EA for the duration of its pandemic response, then I could understand that the ASU would have a case that the ATO had contravened cl 50 of the EA and therefore s 50 of the FW Act. If the ASU’s case was that a particular employee was told that they could not make a request under cl 50 for a formal working from home arrangement under that clause for the duration of the ATO’s pandemic response, then I could understand an adverse action contention on that basis. But that is not what the ASU alleges and is not what occurred. In this regard:
(1) informing employees to use the WFH Guide to set up a work from home arrangement quickly, as in the WFH Guide, did not suggest that cl 50 had been suspended or somehow ceased to operate; and
(2) it was clear from every version of the WFH Guide that it was concerned with the ATO’s response to the pandemic – see, for example, the title of the policy (Working from home COVID-19 Response) and the statement that even while the employee’s site remained open “[d]uring our COVID-19 response, work from home agreements may be possible for all or part of your regular hours depending on available equipment and operational priorities”.
370 What is presently important is that the ASU’s case is not that: (a) an employee requested a formal working from home arrangement under cl 50 of the EA and was told they could not do so for the duration of the ATO’s response to the pandemic, or (b) by reason of the ATO’s conduct, an employee in fact believed that they could not request a formal working from home arrangement under cl 50 of the EA for the duration of the ATO’s response to the pandemic.
371 I acknowledge that part of the ASU’s adverse action case is that all versions of the WFH Guide told employees to use the WFH Guide, and the version of the WFH Guide issued on 2 April 2020 also said:
If you can work from home, you should do so. This guide is intended to help you transition into a work from home situation in order to continue to serve the public. Working from home during the COVID-19 response is temporary.
Interim working from home arrangements confirmed during the COVID-19 response supersede any existing working from home agreements.
372 I deal with these issues below. But the point I am presently making is that there is no pleading to the effect that: (a) an employee requested a formal working from home arrangement under cl 50 of the EA and was told they could not do so for the duration of the ATO’s response to the pandemic, or (b) by reason of the ATO’s conduct, an employee in fact believed that they could not request a formal working from home arrangement under cl 50 of the EA for the duration of the ATO’s response to the pandemic. The case the ASU puts either depends on its construction of cl 50 of the EA which I have rejected, or operates at a higher level of generality – that the ATO told employees that the only way they could work from home during the pandemic was by using the ATO guide (and, implicitly but necessarily on the ASU’s case, thereby also told them that they could not request or obtain a formal working from home arrangement under cl 50 of the EA during the ATO’s pandemic response).
373 In this context, I do not see Community and Public Sector Union v Telstra Corporation Limited [2001] FCA 267; (2001) 107 FCR 93 as on point. In that case, the email proposing staff reductions was sent and said that managers would “be held accountable to support the values of the Company’s preferred model of individual employment” (ie, rather than being covered by industrial agreements) in that context as employees:
who have transferred to individual contract have placed their trust in their managers and the Company to create a work environment that reinforces respect and dignity for the individual, and which places primary emphasis on productive relationships in which individual accountability encourages each person to contribute to his/her full potential.
The email also said that as that “[m]anagers must not under any circumstances compromise these important values in the way they implement cost reduction initiatives which lead to staff reductions”. The email sent was not in fact acted upon. Black CJ, Ryan and Merkel JJ said at [19]–[20]:
Before the sending of the e-mail Telstra’s employees employed under awards and certified agreements enjoyed the benefit of being subject to redundancy only in accordance with a process which rated their eligibility for redundancy on the basis of merit, which was to be determined by application of the five principal criteria stipulated for the resource rebalancing process. There was an adverse affection of, or deterioration in, that benefit after the sending of the e-mail as a result of the additional detrimental criterion applicable to employees employed under awards or certified agreements. The detrimental criterion was real and substantial for the employees whom it affected.
Thus, while the refined or amended criterion had not been acted upon, and therefore may not have caused any injury to an employee, the employment of employees on awards or certified agreements had become less secure, in a real and substantial manner, than it had been previously. In those circumstances the position of the relevant employees had been altered to their prejudice within the meaning of s 298K(1)(c). It follows that while we consider that the primary Judge was correct in concluding that, as the e-mail had not been acted upon, it did not injure any employee, we do not agree with his Honour’s conclusion that the e-mail had not altered the position of any of the employees to their prejudice.
374 In Telstra, the position of the employees had changed as a result of the email, despite the content of the email not being implemented. The equivalent in the present case would have been the ATO informing its employees that no employee could seek a formal working from home arrangement in accordance with cl 50 of the EA for the duration of the ATO’s response to the pandemic. There is evidence that Mr Moore contemplated but rejected such a course as unnecessary. The fact that Mr Moore contemplated but rejected such a course is strong evidence that no relevant ATO officer intended that the ATO’s pandemic response should affect any right of an employee under the EA.
375 “Adverse action” is extended by s 342(2)(a) of the FW Act to “threatening to take action covered by the table in subsection (1)” but this does not assist the ASU. This is not a threat case. It is a case in which the fact that the ATO implemented its pandemic response cannot be avoided. Section 342(2)(a) adds nothing in this case.
376 It is now necessary to deal with the ASU’s contention that employees were told in various ways that they could not work at home unless they had a WFH Guide arrangement. The pleaded case at [38] is that:
By the WFH Guide, the Commonwealth:
(a) [deleted];
(b) required that a Relevant Employee who wished to work at home obtain their Manager’s approval to do so by observing the procedures contained in the WFH Guide; and
(c) required that a Relevant Employee who had approval to work at home cease doing so upon a request from their Manager to attend an ATO workplace.
Particulars
A. In relation to (a) above, the direction is contained in the WFH guides dated 26 March 2020, 1 April 2020, 2 April 2020, 8 April 2020, 21 April 2020 and 6 July 2020. Under the heading “These are exceptional circumstances” the guide states that interim working from home arrangements confirmed during the COVID-19 response supersede any existing working from home agreements.
In an email from Moore sent on 25 March 2020 at 7.09AM to Craig Skinner, Christopher Gyetvay, Chapman and Anne Blaseotto, Moore proposed “giving notice to cancel all existing formal WFH arrangements which are in place and expect new ones to be put in place using the interim COVID-19 arrangements”. Included in Skinner’s response at 7.45AM on 25 March 2020 is that he would update the information in the checklist to include key points from the emails below (which included Moore’s email). The email chain is available for inspection at the office of the Applicant’s solicitor.
B. In relation to (b) above, the requirement is contained in each iteration of the WFH Guide in the form of a flow chart that directed attention to the WFH Checklist to set up an arrangement with the employee’s Manager. Employees were directed to have an arrangement in order to work at home, in relation to which the ASU refers to and relies upon the particulars to paragraph 11.
C. In relation to (c) above, the requirement is contained in each WFH Guide referred to in paragraph 10 herein and consisted of statements that “the EA” (and after 21 April 2020, “the Enterprise Agreement (EA)”), continued to apply when working at home, and that “When working at home, you are required to: …..“Attend the workplace when requested by a manager where appropriate and possible to do so”. These statements were located in the WFH Guide under the heading “Employee responsibilities” until 21 April 2020 and thereafter under the heading, “Working from home responsibilities”.
In correspondence dated 13 May 2020 sent to the ASU’s Branch Secretary, Jeff Lapidos, Moore made statements the substance of which were that the ATO did not envisage that an arrangement made under the WFH guide was a clause 50.1 arrangement and, in that context, stated that the WFH Guide and WFH Checklist required an employee to return to an ATO workplace when requested by their manager…
377 As discussed, the ATO was entitled to direct, require, facilitate, or encourage its employees to work from home under the rubric of the ATO’s response to the pandemic. In so doing the ATO was not bound to comply with cl 50 of the EA. The ASU’s pleaded case wrongly assumes that the ATO was not entitled to do so. The ASU’s pleaded propositions in [38] go nowhere unless, in so doing, the ATO also acted purportedly to suspend the operation of cl 50 of the EA. To the extent that the pleaded case and case as put by the ASU extended to the ATO purportedly suspending the operation of cl 50 of the EA, I respond as follows.
378 The email Mr Moore sent to others within the ATO on 25 March 2020 saying “[d]o we want to consider formally saying we are giving notice to cancel all existing formal WFH arrangements which are in place and expect new ones to be put in place using the interim COVID‐19 arrangements” is relevant to the extent it might explain the version of the WFH Guide issued on 2 April 2020 which included the statement that “[i]nterim working from home arrangements confirmed during the COVID-19 response supersede any existing working from home agreements”. Otherwise, as noted, its relevance lies in the fact that Mr Moore decided this was unnecessary as an interim arrangement under the WFH Guide, as part of the ATO’s pandemic response could operate in addition to any formal working from home arrangement under cl 50 of the EA.
379 Mr Moore decided that words should be included in the WFH Guide to give effect to this intention. It will be recalled that Mr Moore gave this evidence (emphasis added):
Because the formal arrangements would have been quite specific, in the hours that people could work, the number of days, when they became due. And I was concerned that confusion of having two working from home arrangements in place, there may – that may cause some staff confusion. But in the end, we decided that the guide provided so much more additional flexibility that they could actually sit over the top of the formal working from home arrangements, and cover full time work that formal agreements wouldn’t have done. So in the end, a decision was taken that we didn’t need to do that, because the guide provided that flexibility.
Well, who made the decision?---I did.
Did you convey it to Mr Geale?---I don’t recall. My guess would be probably not.
And – so you used the word “superseded” immediately after thinking, “Well, I won’t give them notice, I will just say that they’re superseded”?---In the sense – again, English language sense that supersede means to replace ineffectiveness, yes.
380 While the transcript says “replace ineffectiveness”, it is clear that Mr Moore was saying “replace in effectiveness”. What Mr Moore meant by this remained unclear. For example, Mr Moore also gave evidence in his affidavit that:
(1) in his internal ATO email of 25 March 2020 he invited consideration of whether an addition to the WFH Guide should be included to say that “we are giving notice to all of those who were then already on existing formal working from home agreements in accordance with the terms of those agreements”;
(2) this was not done. Instead they authorised an amendment to the WFH Guide to make sure that agreement by the manager and employee was not required in response to every item in the checklist and the insertion of the sentence that “[i]nterim working from home arrangements confirmed during the COVID-19 response supersede any existing working from home agreements”;
(3) the purpose of the insertion of this “supersede” sentence was to give staff with an existing formal cl 50 arrangement for part of their hours the capacity to work from home full time so as to avoid exposure to risks to their health and safety during the ATO’s pandemic response; and
(4) the purpose of amending the checklist section was to make clear that agreement by the manager and employee was not required in response to every item in the checklist. The checklist was just a facility to assist managers and employees to understand the need to provide a safe and secure working environment at home and determine if other working arrangements were required.
381 For example, Mr Moore was not asked if he intended that for an employee with an existing formal working from home arrangement under cl 50 of the EA for, say, two days a week, an arrangement under the WFH Guide during the ATO’s pandemic response would mean that the employee would no longer have the benefit of the arrangement in respect of the two days covered by the formal working from home arrangement under cl 50 of the EA. This is important because Mr Moore decided to insert this statement in the WFH Guide. While the meaning of “supersede” and “replace in effectiveness” might seem clear and to expose an apparent intention on the part of Mr Moore that a formal working from home arrangement under cl 50 of the EA would cease to operate for the duration of the pandemic, the circumstances are not straightforward.
382 Focusing only on Mr Moore, there are good reasons not to attribute such an intention to him. In particular:
(1) Mr Moore said that “[d]uring the ATO Pandemic Response employees who requested a formal working at home agreement had that request considered according to the usual process provided for under clause 50.1 of the ATO Enterprise Agreement” – this is inconsistent with attributing to him an intention that all formal working from home arrangements under cl 50 of the EA should be suspended for the duration of the pandemic; and
(2) Mr Moore considered the possible termination by notice of all existing formal working from home arrangements under cl 50 because he was concerned that employees might be confused by “having two working from home arrangements in place”. However, he said that “in the end, we decided that the guide provided so much more additional flexibility that they could actually sit over the top of the formal working from home arrangements, and cover full time work that formal agreements wouldn’t have done” – the fact that:
(a) Mr Moore and others considered that the prospect of two working from home arrangements for the duration of the ATO’s pandemic response was not a good reason to give notice to terminate the existing cl 50 arrangements indicates that he had no concern about the cl 50 arrangements continuing in force and effect for the duration of the ATO’s pandemic response; and
(b) Mr Moore’s description of the WFH Guide arrangements, that “they could actually sit over the top of the formal working from home arrangements”, indicates that he did not conceive of the WFH Guide arrangements as having any effect on the continued existence of the cl 50 arrangements.
383 In these circumstances it is apparent that by “supersede” and “replace in effectiveness” Mr Moore had something practical and not something legal in mind. At the practical level, during the ATO’s pandemic response, the WFH Guide arrangement sat on top of any existing cl 50 arrangements and enabled the employee to work from home full time and not only for the days covered by the cl 50 arrangement. At the legal level, the WFH Guide arrangement could not, did not and was not intended by Mr Moore and other ATO officers involved to affect the continued operation of cl 50 arrangements. As Mr Chapman said, the WFH Guide “was not a technical document, this was a document designed to facilitate moving 20,000 people, or close to, out of our buildings to support them to work from home”. This was not, as the ASU submitted, the ATO officers “playing ducks and drakes with compliance”. It was an urgent practical response to an urgent practical problem.
384 Further, while Mr Moore decided to insert this statement into the WFH Guide, he was working with other ATO officers. He reported to Mr Chapman who in turn reported to Ms Curtis. Mr Geale was in charge of the ATO’s pandemic response.
385 Mr Geale approved the WFH Guide versions in issue and said that he understood that part of the WFH Guide to mean that “if someone, by way of example, had been approved to work from home two out of four days, the new arrangements would allow them to work from home four out of four days, if that’s what the manager and employer – employee had agreed to do”, that part being directed to “[s]omeone who had a part-time working from home agreement which enabled them to work from home some of the time but not all of the time”, and he thought at the time it adequately did so but accepted with hindsight it could have been clearer. Nothing in Mr Geale’s evidence suggests he intended that an arrangement under the WFH Guide during the ATO’s pandemic response should affect in any way any rights of employees under cl 50 of the EA including existing cl 50 arrangements.
386 Ms Curtis said in her affidavit that this statement (regarding the superseding of pre-existing working from home arrangements) did not mean that existing formal working from home agreements under cl 50.1 would end and this was not the case. It meant that formal working from home agreements were preserved and overlayed with the additional working from home hours arranged between managers and staff following the procedures in the WFH Guide. It did not enter her mind at any time and certainly not during the exceptional environment in which the ATO was making and promulgating the WFH Guide that this statement involved suspension or termination of a formal working from home agreement.
387 Ms Curtis said in her oral evidence that:
The intention was that people had a formal working from home agreement, maybe two days a week working from home, and then when COVID hit, we had to maybe get them working from home five days a week, if possible, so they had – over and above their formal working from home agreement, they then had another, say, three days working [from] home agreement. It wasn’t to say that we were extinguishing the formal working from home agreement; it was you now have that, plus the extra three days that you’re working from home…
… We weren’t trying to extinguish the working from home arrangements they already had; we were trying to overlay them with some additional working from home, which were the ones that we put in place over COVID-19, and, therefore, those things superseded what they had in place before, which was just the two days formal agreement.
388 Mr Chapman said in his affidavit that this sentence was important:
…to ensure that those employees who had an existing formal working from home agreement under clause 50.1 of the ATO Enterprise Agreement retained their entitlement to work from home in accordance with the terms of that agreement after any period during which they had work from home full-time during the ATO pandemic response. Through the course of the pandemic, if they would work the whole of the week from home, their existing formal working from home agreement would be superseded by the COVID-19 working from home arrangement put in place to protect their health and safety. When it would be safe to return to the workplace, they would revert to the regime in place in accordance with their formal working from home agreement. The ATO had no entitlement, and in no way intended, to deprive any employee with an existing formal working from home agreement from retaining the working from home hours under that formal agreement after their period of working from home during the pandemic response ended.
389 Mr Chapman gave this oral evidence:
And what it says, doesn’t it, quite clearly to a reader, that the interim working from home arrangement which is under the guide supersedes, in the sense that it replaces, an existing working from home agreement?---I don’t believe – “replace”, I think, would indicate cancellation of existing formal working from home arrangements, or agreements. That was not a step that we took. In fact, when we transitioned people back to level 1, we said, “if you’ve got an existing working from home – formal working from home agreement, that remains in place until its expiry unless you and your manager engage in a review [and] seek to alter it”. So we did not cancel, so that’s not the – that’s not the effect of what those words had. I can’t say I was involved in the specific wording of “supersede”, but my understanding of it was that those existing – from what I was told around – somewhere around that time was that that word was about – well, the phrase was about saying those existing agreements remain in play but are overlayed by the COVID emergency arrangements which provided additional time and flexibility for people.
And they are overlayed – on the clear meaning of those words, they overlayed them to their exclusion, didn’t they, that’s what it says?---I – I don’t think that’s the case. I would say if they were excluded, that means we could effectively disregard them, and we did not.
Okay?---I don’t believe there was anybody we told them – who we told their clause 50 agreement was cancelled, or – and I’ve not had any specific examples raised to me where somebody was asked to do something that – in relation to their formal working from home days under their clause 50 agreement that was contrary to any of the arrangements or provisions of that agreement or the – or clause 50.
Yes. But it’s the case, isn’t it, that those words were intended to make it clear that the guide arrangements were the ones that employees needed to look to in order to work from home during the pandemic. It made the – isn’t that right?---They – it does not say that it could not enter into a clause 50 agreement, but this was certainly the arrangement that we wanted people to take forward, because it was streamlined, it was easier, it was more flexible in terms of the consideration being given to operational requirements and how people could be supported to actually take up this opportunity to protect their safety and welfare.
390 There is some possible ambiguity, even inconsistency, between Mr Chapman’s affidavit and oral evidence. I infer this results from the fact that Mr Chapman was not responsible for including those words in the WFH Guide. It is clear from Mr Chapman’s oral evidence, however, that while he intended employees to use the WFH Guide if they wished to work from home as part of the ATO’s pandemic response, he never intended to affect any right of any employee under cl 50 of the EA.
391 In Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Limited (No 2) [2017] FCA 1046; (2017) 69 AILR ¶102–860 Wigney J explained at [297]–[307] that the principles applying to the question whether a person took certain action for a particular prohibited reason were:
First, the question is one of fact: Barclay [Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500] at [41], [45], [101]; BHP [Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41; (2014) 253 CLR 243] at [7].
Second, the question is why the adverse action was taken: Barclay at [5], [44]. The focus of the inquiry is the reason or reasons of the relevant decision-maker: Barclay at [101], [127], [140], [146]; BHP Coal at [7], [19], [85]. More particularly, the question is whether the alleged prohibited reason was a “substantial and operative” reason for taking the adverse action: Barclay at [56]–[59], [104], [127]; or an operative or immediate reason: Barclay at [140].
Third, the test does not involve any objective element: Barclay at [107], [121], [129]; BHP Coal at [9]. To speak of objectively obtained reasons risks the substitution by the court of its view, rather than making a finding of fact as to the true reasons of the decision-maker: Barclay at [121]; BHP Coal at [9].
Fourth, the inquiry is not concerned with mere causation, in the sense that it is not sufficient that there is factual or temporal connection between the relevant protected workplace rights and the adverse action: BHP Coal at [18]–[20]. Any such connection, however, may necessitate some consideration as to the true motivation or reasons of the decision-maker: BHP Coal at [22].
Fifth, the question must be answered having regard to all of the relevant facts and circumstances and the inferences available from them: Barclay at [45], [127]; BHP Coal at [7].
Sixth, direct testimony from the decision-maker as to why the adverse action was taken is capable of discharging the burden imposed by s 361: Barclay at [45], [71]; BHP Coal at [38]. However, declarations that the action was taken for an innocent reason may not discharge the onus if contrary inferences are available on the facts: Barclay at [54], [79], [141]. The reliability and weight to be given to such evidence must be assessed having regard to the overall facts and circumstances: Barclay at [127].
Seventh, it is not necessary for the decision-maker to establish that the reason for the adverse action was entirely disassociated from the relevant protected workplace right: Barclay at [62].
…
The High Court, by majority (French CJ, Kiefel and Gageler JJ, Hayne and Crennan JJ dissenting), dismissed an appeal from the Full Court [in BHP Coal]. In his judgment, Gageler J said (at [91]–[93]):
The CFMEU argues that the consequence of allowing the decision of the Full Court in the present case to stand will be to undermine the statutory protection afforded to protected industrial activity by allowing an employer to escape culpability by choosing to apply its own characterisation to otherwise protected industrial activity.
Part of the answer to that argument lies in recognition of the nature of the protection that is afforded to protected industrial activity through the operation of s 346(b). The protection afforded by s 346(b) is not protection against adverse action being taken by reason of engaging in an act or omission that has the character of a protected industrial activity. It is protection against adverse action being taken by reason of that act or omission having the character of a protected industrial activity.
Another part of the answer lies in recognition of the significance of the combined operation of ss 360 and 361. An employer could not escape the proscription in s 346(b) merely by proving that the employer applied its own characterisation to an act or omission having the character of a protected industrial activity. The employer would need, in addition, to prove that the act or omission having the character of a protected industrial activity played no operative part in its decision.
One can readily comprehend the distinction drawn by Gageler J between taking adverse action by reason of conduct that has the character of protected industrial activity, and taking adverse action by reason that the conduct has the character of protected industrial activity, having regard to the particular facts of BHP Coal. The trial judge accepted the decision-maker’s evidence that he did not dismiss the employee because he had engaged in conduct that had the character of protected industrial activity. He did not dismiss the employee because he was engaged in the protest. He dismissed the employee because the placard he was waving was offensive and contrary to company workplace policy. While that conduct happened to occur in the context of protected industrial activity, that was not the reason for the dismissal.
The distinction drawn by Gageler J is potentially important to the resolution of the issue concerning the decision-maker’s reasons in this matter. BHP Coal concerned an alleged contravention s 346 of the Fair Work Act. While it might be thought to be a very fine and highly nuanced distinction, if Gageler J’s distinction is applied to s 340 of the Fair Work Act, it would follow that the protection afforded by s 340 is not protection against adverse action by reason that an employee had, or exercised, a right that happened to have the character of a workplace right. It is a protection against adverse action being taken by reason of the fact that the right possessed by the employee had the character of a workplace right.
392 In Qantas Airways Ltd v Transport Workers’ Union of Australia [2022] FCAFC 71; (2022) 402 ALR 1 at [230] Bromberg, Rangiah and Bromwich JJ said:
It must be kept steadily in mind that what is required is a causal and thus factual inquiry into all of the substantial and operative reasons for a decision being made. It is necessarily fact and circumstance specific, potentially with a multitude of such reasons being in play. In the field of causation, the question of fact as to whether something is a cause (or may have been a cause so as to trigger the presumption in s 361(1)), is required to be ascertained “by reference to common sense and experience and one into which considerations of policy and value judgments necessarily enter”: see Minister for the Environment v Sharma [2022] FCAFC 35 per Allsop CJ at [305], citing March v E & M H Stramare Pty Ltd [1991] HCA 12; 171 CLR 506 per Mason CJ (with whom Toohey J and Gaudron J agreed).
393 Having regard to these principles and the evidence as a whole, I accept the evidence of the officers of the ATO. Clause 50 of the EA was never part of any reason for any aspect of the ATO’s response to the pandemic. The ATO officers involved rightly believed cl 50 of the EA did not apply to the ATO’s pandemic response including the WFH Guide. They also rightly believed that any formal arrangement under cl 50 would continue in force and effect, and that the ATO’s pandemic response could facilitate an employee with such an arrangement working from home full time for the duration of the ATO’s pandemic response. The queries raised along the way by Mr Chapman, Mr Moore and Mr Skinner do not change the basis on which the ATO and the relevant officers involved acted. Nor do the subsequent observations of Ms Beesley who appears to have reported to Ms Blaseotto and had no decision-making role.
394 The fact that the “supersede” statement in the WFH Guide is ambiguous is immaterial to the claims in respect of adverse action. The focus in respect of those claims is the reasons or intent of the ATO officers involved in taking the action. I accept that Mr Geale and Ms Curtis were relevant decision makers, but so too were Mr Moore, Mr Chapman and Mr Gyetvay. Ms Blaseotto reported to Mr Moore, and her actions may be taken to be approved by him.
395 Adverse action is action of the relevant kind in s 342(1) of the FW Act. The statutory proscription in s 340(1) is the taking of adverse action because the other person has a workplace right. Under s 360, a person takes action for a particular reason if the reasons for the action include that reason. Under s 361(1), it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
396 The ATO has proven otherwise so as to rebut the presumption in s 361(1) of the FW Act. It has proven that the reasons for the action consisting of its pandemic response including the promulgation and implementation of the WFH Guide had nothing to do with any workplace right arising from cl 50 of the EA. Those rights continued unaffected by the ATO’s pandemic response and the WFH Guide. The ASU’s contentions to the contrary pre-suppose that cl 50 covered the entire field of any employee working from home, a construction I have rejected above. In the context of the ATO’s pandemic response, the ATO was not bound by cl 50. The ATO was also entitled to create a pandemic response outside of cl 50 and, under the rubric of that response, ask employees who wished to take the benefit of the ATO’s pandemic response to do so under the WFH Guide. The thing the ATO could not do was affect the workplace rights of any employee, existing or prospective, under cl 50. In the context of the ASU’s claims arising under Pt 3.1 of the FW Act dealing with adverse action, where a contravention depends on the reason or intent of the action of the persons acting only, the ATO has proved that it had no intent to and did not take any action for any reason including the workplace rights of any employee, existing or prospective, under cl 50 of the EA.
397 The evidence of the ATO officers is consistent with the objective contemporaneous circumstances. The fact that the WFH Guide did not mention cl 50 of the EA until the version issued on 6 July 2020 assists the respondents, not the ASU. The 6 July 2020 version said:
When site restrictions transition to level 1 and is open to all staff, temporary COVID-19 working from home arrangements will cease. To work at home after this time (for any portion of your working hours) you may request a formal working at home agreement as per clause 50 of our Enterprise Agreement.
398 The earlier versions did not say, however, that an employee could not request a formal working at home agreement as per cl 50 of the EA during the ATO’s pandemic response. The earlier versions also exposed that the ATO’s pandemic response involved extraordinary action for an extraordinary time. As noted, the WFH Guide is entitled “Working from home COVID-19 Response”. The WFH Guide issued on 2 April 2022 said:
These are exceptional circumstances
…
If you can work from home, you should do so. This guide is intended to help you transition into a work from home situation in order to continue to serve the public. Working from home during the COVID-19 response is temporary.
Interim working from home arrangements confirmed during the COVID-19 response supersede any existing working from home agreements.
…
Be prepared for rapid response in case of an immediate site shutdown
All employees who are able to work from home should do so.
Use the COVID-19 Work from home checklist to discuss arrangements with your manager and prepare your space …
…
Rapid Response work from home checklist
You can use this rapid response work from home checklist to immediately begin working from home. Within 3–5 days, work through the COVID-19 work from home checklist with your manager to begin creating a more sustainable set-up…
…
(when there is not an immediate shut down)
Relevant in situations when there is not an immediate site shut down. The following pages help you prepare and set up to work from home during the COVID-19 disruption.
…
399 For the reasons already given, the only statement suggesting any relationship between the ATO’s pandemic response and cl 50 of the EA potentially different from the evidence of ATO officers as to the actual reasons for the action taken is the “supersede” statement. However, the evidence of the ATO officers in this regard is compelling. They did not intend or have as any part of their reasons for the ATO’s response to the pandemic any aspect of cl 50 of the EA. They were implementing the ATO’s own pandemic response outside of cl 50 of the EA and, as I have said, were entitled to do so. In this context, the statement is relevant to the ASU’s misrepresentation case but does not assist the ASU’s adverse action case. Those two cases are conceptually distinct.
400 For these reasons, I reject the ASU’s submission that:
The respondents’ persistent attempts to draw upon the pandemic to say that no-one contemplated that clause 50 would be applicable cannot seriously be accepted. Nor can their attempts to shroud the whole of the WFH Guide in the cover of the efforts taken to migrate employees to work from home.
401 This part of the ASU’s submissions is based on the mistaken assumption that cl 50 of the EA covered the entire field of working from home so that the ATO officers were illegitimately trying to avoid making the ATO’s pandemic response and WFH Guide a means of an employee obtaining a formal cl 50 arrangement. That perspective is wrong. For this reason, the ASU’s focus on the fact that the ATO’s pandemic response and WFH Guide did not contain the notice of termination and suspension provisions from cl 50 of the EA is misconceived. The ATO’s pandemic response and WFH Guide did not have to contain those provisions. The ATO was entitled to say to its employees, in effect, “if you would like to take the benefit of the ATO’s pandemic response, please do so under the WFH Guide”. As noted, what it could not do was act for the reason of preventing, impairing, or obstructing a presently existing or prospective workplace right.
402 The ASU also conflates the ATO’s purpose of ensuring that it had the operational flexibility it required as part of its response to the pandemic with an intention to avoid cl 50 of the EA in some improper way. As discussed, it was legitimate for the ATO to establish its own pandemic response in which its needs included both keeping the ATO functional and protecting the health of its employees. Part of the ASU’s case appeared to assume that these two objects were incompatible, with the object of keeping the ATO functional also being improper. That assumption is unjustified. The ATO needed to protect the health of its employees and needed to keep itself functioning. The two were interdependent. There was also nothing improper about the ATO deciding that its operational requirements meant that the part of its pandemic response involving the transition of its employees to working from home should not include the notice and suspension requirements of cl 50 of the EA. Provided cl 50 remained and the ATO’s pandemic response did not prevent, impair, or obstruct the right of an employee to seek a formal working from home arrangement under cl 50 of the EA or any right under an existing cl 50 arrangement, the ATO’s actions could not be adverse action proscribed by the FW Act.
403 Take one example focused on by the ASU. As noted, Mr Moore gave this evidence:
…We wanted to differentiate the two, because the former [sic] working from home arrangements didn’t meet our operational needs at that stage
So you were motivated by the content of clause 50.1 to say that the ATO needed to distinguish the guide from the clause?---Yes, we needed to distinguish between the two.
And the basis for that was the content of the clause?---Well, one of the bases of that, yes.
404 This is not adverse action because it does not injure, alter the position of, or discriminate between employees. All employees retained both the right to request a formal working from home arrangement under cl 50 of the EA and the rights under any existing cl 50 arrangement during the ATO’s pandemic response. All employees also gained the right to request a working from home arrangement under the ATO’s pandemic response and associated WFH Guide.
405 The fact that the ATO wanted any employee who wished to take the benefit of the ATO’s pandemic response to do so in accordance with the WFH Guide is clear, but I do not accept that this can be characterised as the so-called “prevention reason” in [42(d)] of the ASU’s pleading. In that paragraph the ASU alleges that the reason the ATO and its officers acted was “to prevent the exercise of the Process Participation Right by Relevant Employees who wished to work at and from home due to the COVID-19 pandemic”. That does not follow from the evidence that the ATO wanted employees who wished to take the benefit of its pandemic response to do so using the WFH Guide which was part of the ATO’s pandemic response.
406 Contrary to the ASU’s submissions, the fact that there is evidence of employees requesting and obtaining a formal working from home arrangement under cl 50.1 of the EA before (and after) the WFH Guide was promulgated due to employee anxiety about the pandemic, assists the ATO’s case, not that of the ASU. It demonstrates that cl 50 was available and continued to be so. But if an employee wished to take advantage of the more streamlined process under the ATO’s pandemic response and the associated WFH Guide to obtain a quick approval to work from home full time, then the employee could do so.
407 Nor do I find anything inherently unbelievable or internally inconsistent in the evidence of Mr Moore and others to the effect that: (a) they did not think cl 50 applied to the ATO’s pandemic response and the associated WFH Guide, (b) as such, they did not think about including the notice and suspension provisions from cl 50 in the WFH Guide, and (c) they wanted the WFH Guide to enable employees to transition quickly and easily to working from home for their health and safety and also wanted the ATO to retain functionality by being able to require employees to work from the office as necessary if that could be appropriately done in the circumstances. To my mind none of this involves a motivation prohibited by the adverse action provisions of the FW Act, once the proper construction of cl 50 of the EA is accepted.
408 Further, the fact that ATO announcements about its pandemic response to employees included that, for example:
(1) “[w]here it is operationally possible for you to perform your role from home, and you would like to, we are encouraging managers to support and progress these arrangements as swiftly as possible”;
(2) “[o]ur working from home guide will enable you to have a discussion with your manager to set you up to work from home during the COVID-19 pandemic response”;
(3) “[w]hile managers work to assess the possibility of arrangements for their teams, we are asking all staff to prepare themselves to ensure your readiness in the event you are asked to work from home. The COVID-19 work from home checklist needs to be conducted by all staff and managers prior to work from home arrangements commencing”, and
(4) “ATO employees must not work from home without setting up an arrangement”
do not indicate a purpose of preventing an employee from making a request for a formal working from home arrangement under cl 50 of the EA.
409 In short:
(1) the statement that “ATO employees must not work from home without setting up an arrangement” was accurate under both cl 50 of the EA and under the ATO’s pandemic response;
(2) the ATO directing employees that they “must not work from home without setting up an arrangement” did not prevent, alter or impair any workplace right as there was no workplace right to work from home of the employee’s own choosing; and
(3) informing employees that they could arrange to work from home under the ATO’s pandemic response also did not prevent, alter or impair any workplace right, as the rights under cl 50 of the EA remained.
410 The reaction of the ATO officers to the circulars from Mr Lapidos to ASU members of 23 and 24 March 2020 also does not support the ASU’s case. The circulars referred to cl 50 of the EA in the context of working from home arrangements. The ASU’s case is that, at least from this time when they saw the circulars, the ATO officers must have realised that cl 50 of the EA was relevant, but they rejected this recognition. The evidence, however, is clear. The ATO officers simply did not agree with Mr Lapidos’ apparent view.
411 The ASU is then critical of the ATO officers for not informing Mr Lapidos of their view that cl 50 of the EA did not apply to the ATO’s pandemic response, submitting that:
No attempt was made to correct the error, as Mr Chapman perceived it, in Mr Lapidos’ thinking. There was opportunity to do so, including the phone conversation he initiated with Mr Lapidos on 30 March 2020. Nor is there evidence of any clarifying communication to ATO staff either, in spite of the numerous “all staff” communications published regularly by Mr Geale and Ms Curtis, or of any action to inform them that clause 50.1 was in fact available.
412 This submission fails to appreciate the context. The ATO had been trying to communicate with Mr Lapidos about its pandemic response since 13 March 2020. Ms Blaseotto had invited Mr Lapidos to twice weekly meetings with the ATO for that very purpose. Mr Lapidos did not respond. As a result, the ASU did not obtain the benefit of the twice weekly meetings with the ATO about the ATO’s pandemic response, an opportunity the CPSU (in contrast) took up from 17 March 2020. Instead of responding to Ms Blaseotto, Mr Lapidos wrote to the Commissioner, in effect, setting out his own requirements of the ATO. Mr Lapidos was invited by ATO officers to commence discussions again on 16, 17, 18 and 22 March 2020. Mr Lapidos ultimately agreed to a discussion with the ATO for the first time on 22 March 2020, after the WFH Guide had been prepared. Regular meetings with Mr Lapidos did not commence until 9 April 2020 as a result of ongoing issues of concern raised by Mr Lapidos about who would be attending and the purpose of the meetings.
413 Examples of the evidence of Mr Lapidos in this regard include:
• I’m unlikely to raise – make that point to Ms Blaseotto because of her relatively junior position in the office;
• And you completely disregard Ms Blaseotto’s invitation?---I didn’t disregard it. I decided it didn’t meet the union’s needs;
• You just didn’t bother to respond at all, did you?---I wouldn’t say that I didn’t bother to respond. I didn’t respond;
• …we wanted to have clarity about the nature of the consultation process, and I wasn’t particularly pleased about the nature of the response compared to the issues I had raised with the Commissioner;
• I didn’t think that Jeremy Moore was – having meetings with Jeremy Moore would be a productive way of resolving the union’s concerns about these matters;
• I didn’t think it was of value to our union to have meetings with Mr Moore to discuss our concerns;
• You ignored his [Mr Chapman’s] email of 17 March, didn’t you?---I did not ignore it.
• You didn’t respond to it, did you?---I did not write to him in response; and
• The union decides who the best person is that we should raise things with. We’re not going to be dictated to by the Tax Office and say “the only people you can talk to are these people”.
414 In this context it is hardly surprising given the content and tone of Mr Lapidos’ circulars to ASU members of 23 and 24 March 2020 that Mr Chapman, for example, said that he was:
…concerned that Mr Lapidos was telling members in this circular that they were doing “the people of Australia a favour” by agreeing to work from home. This was sent out the same day as news outlets were reporting stories of long lines outside of Centrelink resulting from widespread job losses. I considered the circular to be unhelpful and tone deaf to the gravity of the crisis the country was facing and would reflect negatively and unfairly on the committed ATO workforce already experiencing significantly heightened demand from the community.
415 Mr Chapman also explained why he had not specifically put Mr Lapidos on notice of the ATO’s position that arrangements under the WFH Guide were not cl 50 arrangements:
…I personally did not, but I went to great lengths personally to ensure that Mr Lapidos had an avenue for doing so. Whether he chose to take that up or the time it took him to take that up was a matter for his judgment and decision-making.
416 As noted, Mr Lapidos did not agree to the offered twice weekly meetings until 6 April 2020 on the basis the meetings would be with Mr Geale, Ms Curtis and Mr Chapman (rather than merely Mr Moore and Ms Blaseotto). Mr Lapidos’s position was also apparent from his evidence which I now consider.
417 Mr Lapidos, for example, did not regard Ms Blaseotto’s emails as an invitation to consult with the ATO as “[c]onsultation involves more than the employer merely telling us what it was doing”. I infer that Mr Lapidos assumed that the ATO was not willing to discuss its pandemic response with Mr Lapidos before implementing it. I do not consider this assumption was justified. In any event, I infer other issues were also weighing on Mr Lapidos’ mind, as discussed below.
418 It is obvious that Mr Lapidos did not want to meet with Ms Blaseotto (whom he considered to be too junior) and Mr Moore (who was not a “productive” person from Mr Lapidos’s perspective). Mr Lapidos considered that he was entitled to raise ASU issues with ATO officers he considered to be of the requisite level of seniority and otherwise appropriate (irrespective of the ATO’s views as to which of its officers should deal with Mr Lapidos). As a result, Mr Lapidos was not willing to have twice weekly meetings with Ms Blaseotto and Mr Moore despite their roles within the ATO making them, from the ATO’s perspective, suitable for the purpose of consultation with Mr Lapidos.
419 These facts mean that the ASU’s claim that it was not consulted in contravention of cl 8 of the EA (assuming it applied) rings hollow. Mr Lapidos was not willing to consult with the ATO at the time it mattered and with the people that the ATO could then make available – before 23 March 2020 and with Mr Moore in particular. It is apparent that Mr Lapidos was not willing to respond to communications that he considered did not meet the ASU’s needs. This is all Mr Lapidos’s right and entitlement in his capacity as the Branch Secretary of the Taxation Officers’ Branch of the ASU. But, in circumstances demanding urgent action, a person who is not willing to respond to invitations to meet, cannot then legitimately complain of a lack of consultation.
420 It is also apparent that when he had agreed to meet, arranging a discussion with Mr Lapidos was not straightforward. Mr Lapidos was only prepared to meet, in effect, on his own terms. Again, that is Mr Lapidos’s right and entitlement in his capacity as the Branch Secretary of the Taxation Officers’ Branch of the ASU. But again, if a meeting on the demanded terms does not occur, the person making the demand cannot then legitimately complain of a lack of consultation.
421 Consultation is a two-way process. The employees and their representatives do not get to dictate the persons from the ATO with whom the consultation should take place.
422 It is also apparent that Mr Lapidos had raised many issues with the ATO about its pandemic response. Mr Lapidos’s focus was not merely (or even) cl 50 of the EA. For example, Mr Chapman said (accurately):
… we were attempting to set up numerous times to create opportunity for Mr Lapidos to come to the table and have discussions about all of his issues. This was but one issue that Mr Lapidos was raising. There were lots of issues that the ASU were bringing forward, so it’s easy to look back in hindsight when you’re in a Federal Court case and say, “Clause 50 was – the application of clause 50 was really critical,” but it was but one of many, many issues that were being raised. So we provided an opportunity that Mr Lapidos chose not to take up until some weeks after.
423 Further, in circumstances where Mr Lapidos had informed ASU members to tell the ASU about any problem they had at any time, it is telling that there is no evidence of (a) any employee being told that they could not request a formal working from home arrangement under cl 50 of the EA during the ATO’s pandemic response, or (b) any employee being given a direction contrary to an existing cl 50 arrangement. Some employees were told that in order to work from home during the pandemic they needed to fill in the checklist under the WFH Guide and some believed that the only way they could obtain the approval of the ATO to work from home was under the WFH Guide. But:
(1) in order to obtain the ATO’s approval to work from home during the pandemic under the ATO’s pandemic response which enabled a quick transition to working from home, employees did need to complete the checklist under the WFH Guide, so that was accurate; and
(2) on the evidence, the belief that some employees held that the only way they could obtain the approval of the ATO to work from home during the pandemic was an assumption they made, based on statements to the effect of (1) above, but not on any statement to the effect that cl 50 of the EA had ceased to operate or was suspended or otherwise inapplicable.
424 For example:
(1) Ancel Greenwood (the Branch President of the Taxation Officers’ Branch of the ASU) said in his affidavit that in late March 2020, when his manager asked him to fill in the checklist under the WFH Guide he did so believing it to constitute a formal working from home arrangement under cl 50 of the EA, although he did not ask his manager if this was so. Later, in August 2020, Mr Greenwood was aware of the dispute between the ASU and ATO about the status of working from home arrangements under the WFH Guide and requested a formal working from home arrangement under cl 50 of the EA from his manager which was approved;
(2) the manager of Andrew Powell asked him to complete the checklist under the WFH Guide during the week of 25 March 2020. He completed the checklist and was approved to work from home and did so;
(3) the manager of Kristen Baker asked her to complete the checklist under the WFH Guide on 23 March 2020. She did so and worked from home. She said she did so as she understood this was the only means by which she could work from home. She also informed those who worked under her to complete the checklist under the WFH Guide on 27 March 2020;
(4) the manager of Jennifer Furner asked her to complete the checklist under the WFH Guide on 23 March 2020. She did so and worked from home. She believed at the time that to be allowed to work from home she was required to complete these documents;
(5) the manager of George Northend asked him to complete the checklist under the WFH Guide on 26 March 2020. He did so and worked from home;
(6) the manager of John Miller asked him to complete the checklist under the WFH Guide on 26 March 2020. The email said that they must fill out the document “relating to working from home in the context of coronavirus” which he understood was necessary to complete in order to be allowed to work from home. He did so and worked from home;
(7) Robert Kielbicki said he requested permission to work from home leading up to 19 March 2020 due to the pandemic and his health issues. His manager authorised Mr Kielbicki to go on miscellaneous leave while he explored Mr Kielbicki’s request. Mr Kielbicki attended the office on 25 March 2020. He was told he needed to complete the checklist under the WFH Guide to be able to work from home. He did so and worked from home; and
(8) the manager of Tony Peterson asked him to complete the checklist under the WFH Guide on 24 March 2020. He did so and worked from home. He believed that completing the form was the only way he could get approval to work from home.
425 This evidence confirms that, as discussed above:
(1) ATO managers approached employees to facilitate their rapid transition to working from home under the ATO’s pandemic response; and
(2) in so doing, ATO managers accurately represented that to work from home under the ATO’s pandemic response, employees needed to complete the checklist in the WFH Guide.
426 There is no evidence that ATO managers informed any employee that cl 50 of the EA had become inoperative or inapplicable for the duration of the ATO’s pandemic response. As the respondents submitted:
the Adverse Action case is left to hang on the suggestion that the wrongly held view of Mr Lapidos (that clause 50 was a code which applied to the arrangements that the ATO put in place through the WFH Guide) influenced the thinking of the decision-makers such that a substantial and operative reason which actuated whatever might be established to constitute adverse action was to avoid the arrangements in the WFH Guide constituting a Clause 50.1 Agreement.
427 That case theory is untenable. The relevant ATO officers simply did not agree with the view of Mr Lapidos. Once aware of Mr Lapidos’s view, they tried to ensure that the ATO’s position, that it was implementing its own pandemic response and the WFH Guide formed part of that response to the exceptional circumstances, was clear by amending the WFH Guide.
428 The respondents are also correct that only Mr Lapidos and Mr Greenwood seem to have held the view that the ATO pandemic response and associated WFH Guide involved the application of cl 50 of the EA. The other employees called by the ASU, I infer, held no such belief given that they thought they had to act under the WFH Guide (not cl 50 of the EA) to be able to work from home during the pandemic. Further, Mr Greenwood’s belief was not based on anything his manager said or, apparently, on any document he read. Mr Greenwood’s evidence is to the effect that he merely assumed he was entering into a formal working from home arrangement under cl 50 of the EA when he completed the checklist and his manager approved him working from home.
429 Mr Lapidos said he did not know the ATO’s true position until he received the 13 May 2020 letter, but (if so) this was a result of Mr Lapidos’s own making. I agree with the respondents that Mr Lapidos was not a person to be dissuaded easily from any view he held. As I have said, I infer that Mr Lapidos wanted to control the ATO’s choice of which ATO officer would deal with ASU issues. Mr Lapidos wanted to control the narrative. Mr Lapidos’s proposed narrative was that the ATO’s response to the pandemic was inadequate and implemented without proper consultation with him as the ASU representative. Mr Lapidos also could not contemplate anything operating outside of the EA and, accordingly, drew his own conclusions about the ATO’s pandemic response and the WFH Guide. I do not accept that Mr Lapidos’s response was that of an ordinary, reasonable reader of the WFH Guide or the other material the ATO released. In the case of Mr Lapidos’ understanding, moreover, it was not just the terms of the WFH Guide which were relevant. He also knew that:
(1) the ATO had not accepted his proposed amendments to the WFH Guide that the WFH Guide include a specific reference to a working at home arrangements being “formal” and “agreed”; and
(2) Mr Moore had told Mr Lapidos at the meetings on 17 and 24 April 2020 to the effect that the WFH Guide was part of the ATO’s response to the pandemic and did not involve formal working from home arrangements under cl 50 of the EA. In this regard, Mr Lapidos denied this and said he thought Ms Tucker’s notes of the meeting in this regard were wrong, but I infer it is much more likely that in his dealings with Mr Moore at least Mr Lapidos tends to hear what he wants to hear.
430 In this latter regard, I accept the evidence of Mr Moore that he did not say that he was trying to “dance around” the cl 50 issue at the meeting with Mr Lapidos on 24 April 2020. Mr Moore denied saying this and it is inconsistent with his views at the time. Ms Blaseotto did not recall Mr Moore saying this and her contemporaneous notes do not reflect it. Ms Tucker, who took notes for the ASU at the meetings, took a note to that effect and recalled Mr Moore saying it, but I infer she was mistaken. Mr Lapidos himself did not give evidence that he recalled Mr Moore saying this, but it is the kind of statement which, had it been said, I have no doubt would have been retained in Mr Lapidos’s mind as an indication reinforcing his perception of perfidious conduct by the ATO.
431 I also accept Mr Moore’s evidence that he did not refrain from making the ATO’s position clear with Mr Lapidos due to fear that it would give rise to a dispute. As Mr Moore said:
Mr Lapidos probably had about 10 or 20 disputes going at that time. Another dispute wouldn’t have worried me one way or another.
432 I also agree with the respondents that the reality is that Mr Lapidos had a strong predisposition not to accept what he was told by Mr Moore, because Mr Lapidos did not think highly of Mr Moore (or Ms Blaseotto) and considered Mr Moore had a “bad habit” of telling the ASU his personal opinion, in which the ASU had no interest. Mr Lapidos in fact gave this evidence in one of his affidavits:
I have been dealing with Mr Moore since at least far back as 2017. He is the ATO officer who the ATO designates as its primary representative to the Unions. In the time that I have dealt with Mr Moore I have not found him to be particularly constructive or effective in resolving concerns that the ASU has raised with him. I especially wanted the openness and transparency promised by the Protocol document in addressing the pandemic and was not confident I could get this through Mr Moore. Additionally, I did not want him to be the only person through whom the union’s concerns and ideas were communicated to the upper echelons of ATO management.
433 I do not doubt that these perceptions influenced all of Mr Lapidos’ dealings with the ATO and his perception of those dealings throughout the ATO’s pandemic response.
434 In summary, I consider that while he may have had his own reasons which he believed to be necessary or appropriate based on long dealings with the ATO, by the time of the pandemic and the ATO’s pandemic response, Mr Lapidos:
(1) was unwilling to undertake consultation about the ATO’s pandemic response with Mr Moore and Ms Blaseotto as invited, because he had no confidence in them;
(2) was willing to deal only with the ATO officers with whom he wished to deal at what he considered to be the requisite level of seniority and otherwise were acceptable to him;
(3) held a deeply ingrained distrust of the ATO in its dealings with the ASU and therefore was not open to engage in discussions or consultation about the ATO’s pandemic response either at all (until after the response had been implemented) or unless it was on his own terms;
(4) in his dealings with the ATO, in effect, read what he wanted to read and heard what he wanted to hear; and
(5) accordingly, and almost inevitably, believed that he had been misled by the ATO officers about the ATO’s pandemic response.
435 In contrast to the submissions of the respondents, I do not consider that in this litigation Mr Lapidos was involved in a grand exercise of revisionism. I think Mr Lapidos, by reason of his experience and possibly his disposition, perceived events and circumstances involving the ATO through a particular prism involving, in effect, fundamental suspicion and mistrust.
436 I did not form the same impression of any ATO witness. I agree with the submission put for the respondents that the ATO witnesses were accurately disclosing what they understood as their states of mind at the relevant times. The fact that there was some (albeit limited) confusion apparent, reinforces the honesty of their attempts to give accurate evidence about a time when they must all have been under extreme stress. I accept their evidence, in particular their evidence to the effect that:
(1) they believed that the ATO’s pandemic response and the WFH Guide were not subject to cl 50 of the EA;
(2) to the extent any of them thought about it, they did not see trying to make arrangements under cl 50 of the EA as appropriate for the ATO’s pandemic response, because:
(a) they wanted a rapid transition to working from home and were reversing the default expectation of ordinarily working from the office, including by managers asking employees to complete the checklist to arrange working from home under the WFH Guide;
(b) they rightly perceived cl 50 as part of the ordinary course of ATO operations as an exception to the ordinary rule of working from the office and perceived the pandemic as an exceptional circumstance requiring an exceptional response which should only last as long as necessary to deal with the exceptional circumstances; and
(c) connected with (b) above, they wanted to ensure that ATO operational requirements could be satisfied and considered that, for that purpose, it was necessary to include a requirement as part of the ATO’s pandemic response for an employee to “[a]ttend the workplace when requested by your manager where appropriate and possible to do so”;
(3) they wanted employees to work from home during the exceptional circumstance of the pandemic, but also wanted that to be voluntary on the part of employees given the many different circumstances of individual employees;
(4) they wanted to encourage any employee who could work from home during the pandemic to take advantage of the ATO’s pandemic response by arranging to work from home under the WFH Guide; and
(5) they had no intention of implementing any action which would affect any employee’s capacity to seek an arrangement under cl 50 of the EA if the employee so wished or any existing arrangement under that clause.
437 The respondents also pointed out that there could be no change in the position of ATO employees in circumstances where the existing Working at home policy itself always said that:
Responsibilities
Employee responsibilities
…
When working at home, you are required to:
…
attend the workplace when requested by your manager.
438 That is, the requirement in the WFH Guide (“[a]ttend the workplace when requested by your manager where appropriate and possible to do so”) was less onerous than the requirement in the Working at home policy which the ATO applied to formal at working at home arrangements under cl 50 of the EA.
439 Further, that part of the Working at home policy exposes that the ATO never contemplated that an ad hoc requirement for an employee to attend the office when the manager required it involved any form of suspension or termination of the cl 50 arrangement. Rather, such a requirement must be understood as being what the ATO required as part of a cl 50 arrangement to ensure the overriding need of continuing to meet the ATO’s operational requirements could always be satisfied.
440 I also agree with the respondents that the requirement in the WFH Guide (“[a]ttend the workplace when requested by your manager where appropriate and possible to do so”) could hardly have been said to have a real and substantial impact on any workplace right even if it was inconsistent with cl 50 (which it was not, as cl 50 did not apply at all). The qualifications “where appropriate and possible to do so” invited a discussion between the manager and employee about the particular circumstances as relevant at the particular time in question. The ATO could not foresee all eventualities, nor all circumstances of each manager and each employee. The requirement to attend work (if it can be called a requirement) was so hedged and contingent on circumstances as they existed for the manager and the employee at some time in the future, that I am unable to see how it could involve any real and substantial, not merely possible or hypothetical injury to, or prejudicial alteration of the position of, the employee.
441 As the respondents submitted, the ATO’s pandemic response applied to all employees, whether covered by the EA or not. It did not change the position of employees covered by the EA in respect of the operation of cl 50. I also agree with the respondents’ submissions as follows, but for the fact that Mr Greenwood said that he did (wrongly) assume he was entering into a formal cl 50 working from home arrangement:
…the ASU case in closing seems to now be that the detriment is constituted by a conscious decision to deprive all Relevant Employees of an expectation that he or she would have access to the protection afforded by clauses 50.2(d) and 50.9 of the ATO Enterprise Agreement when engaging in the process set down by the WFH Guide. The only person who had any such expectation was Mr Lapidos, and his view is based on an errant construction of clause 50. There is no evidence that any Relevant Employee [apart from Mr Greenwood] had an expectation of access to the notice provisions in clauses 50.2(d) and 50.9 when making arrangements under the WFH Guide, or that he or she was deprived of the carrying into effect of any such expectation. The reason for this is obvious. If he or she had any such expectation, it could be satisfied by making a Clause 50.1 Agreement, just as Mr Greenwood and Ms Harrison did. The WFH Guide confirmed the legal position by way of an express statement that the ATO Enterprise Agreement continued to apply while employees worked from home during the ATO Pandemic Response. The evidence is that employees continued to enjoy the benefits of existing Clause 50.1 Agreements and were able to make a new Clause 50.1 Agreement if they wished to do so. In fact, the only evidence before the Court is that those who asked for a Clause 50.1 Agreement were given one.
5. STATUS OF WFH GUIDE ARRANGEMENTS
442 One of the ASU’s arguments is that the arrangements into which managers entered with Mr Powell, Ms Baker, Ms Furner, Mr Northend, Mr Miller, Mr Kielbicki and Mr Peterson respectively under the WFH Guide, were formal working from home arrangements under cl 50 of the EA.
443 The steps in this argument are:
(1) the evident purpose of cl 50.1 of the EA is to permit working at home by an employee when this is suitable for both the employee and the ATO;
(2) the proviso that ATO operational requirements can continue to be met does not limit suitability. The very flexibility of the criterion is the corollary of an agreed arrangement and tells in favour of a broad and beneficial construction of the clause;
(3) cl 50 is situated amongst other clauses that grant a range of flexibilities and contemplate consensual agreement making between an individual employee and their manager as the process by which they are effectuated;
(4) the industrial purpose of cl 50.1 is easily discernible as a form of flexible working that may be deployed in a variety of ways and in an unlimited range of circumstances;
(5) Mr Chapman gave evidence that the matters that a manager was required to consider for the purposes of an arrangement under the WFH Guide were relevant to those that applied to a formal arrangement;
(6) the questions posed by the WFH Checklist that the employees completed addressed the suitability, operational viability, security and health and safety requirements for each of the employees if they were to work at home. These are the matters relevant to, and determinative of, the arrangement referred to by cl 50.1;
(7) employee safety and wellbeing, as well as ATO flexibility, are expressly intended by the makers of the agreement to underpin cl 50.1;
(8) the existence of a formal arrangement is sustained by the objective evidence of what was done by the individual employees and their managers to obtain a suitable arrangement according to a process and upon criteria that corresponds with cl 50.1. This is so even if cl 50.1 is viewed as merely one way for an ATO employee to procure an arrangement to work at home;
(9) in this context, whatever the ATO meant by using the labels “interim” or “temporary” to describe the WFH Guide, they are not determinative; and
(10) the Court should find that the arrangements with these employees constituted a formal arrangement within the meaning of cl 50.1.
444 The ASU then submitted that the condition in the WFH Guide that an employee attend an ATO workplace requirement if required by their manager “collided” with the requirements of cll 50.2(d) and 50.9 of the EA respectively. According to the ASU, by including a requirement in the arrangements under the WFH Guide that employees “[a]ttend the workplace when requested by your manager where appropriate and possible to do so”, the ATO “proposed to act in the future inconsistently with rights that attach to the formal arrangements the seven employees had” and thereby threatened contraventions of s 50 of the FW Act.
445 These contentions are necessarily alternatives to the main thrust of the ASU’s case, but have not been pleaded as such. As the respondents pointed out:
(a) First, it is said that, by entering a working from home arrangement in accordance with the terms of the WFH Guide, the ATO and each of seven named individual Relevant Employees made a Clause 50.1 Agreement.
(b) Secondly, it is said that, by making and promulgating the WFH Guide, the ATO took adverse action for proscribed reasons associated with a desire to avoid making Clause 50.1 Agreements, indeed to prevent Relevant Employees (including the seven named individuals) from making a Clause 50.1 Agreement.
(c) Which is it? It cannot be both. The inconsistent positions have not been pleaded in the alternative. If the resulting work from home agreement is a Clause 50.1 Agreement, there can be no adverse action as alleged. If the resulting work from home agreement is not a Clause 50.1 Agreement, there is no contravention of the ATO Enterprise Agreement as alleged. If they are in the alternative, which alternative does the ASU say the court should find?
446 In any event, I do not accept the ASU’s contentions. It is not possible to dissect the arrangements entered into under the WFH Guide into: (a) parts that resemble a formal working from home arrangement under cl 50 of the EA and use those parts to assert that the arrangements entered into under the WFH Guide should be characterised as formal working from home arrangements under cl 50, and (b) parts that are inconsistent with a formal working from home arrangement under cl 50 of the EA and use those parts to assert a threatened contravention of cl 50 of the EA. That is not a legitimate process of legal or factual characterisation of the status of the arrangements entered into under the WFH Guide.
447 Dealing with the ASU’s contentions in the same order as set out above:
(1) the evident purpose of cl 50.1 is to enable an employee to request permission from their manager/delegate to work from home and for the manager/delegate to be able to approve such a request when it is suitable for the both the employee and ATO, provided ATO operational requirements can continue to be met;
(2) the proviso that ATO operational requirements can continue to be met does limit suitability from the ATO’s perspective. If the ATO’s operational requirements cannot continue to be met, then the employee working from home could not be suitable for the ATO;
(3) the requirement to attend the office in the Working at home policy associated with cl 50 of the EA is part and parcel of the formal arrangement. It secures the continued satisfaction of the proviso that the ATO operational requirements can continue to be met. It does not involve any suspension or termination of the arrangement;
(4) cl 50 is situated among provisions which, amongst other things, enable an employee to request or seek agreement on a range of matters giving the employee greater flexibility in respect of their work;
(5) the industrial purpose of cl 50.1 is discernible as a potential exception to the EA’s “default setting” of employees working from the office for which an employee could seek approval from their manager/delegate, with the overriding requirement to such approval being that ATO operational requirements could continue to be met;
(6) Mr Chapman’s evidence was that some matters in the WFH Guide had been taken from the Working at home policy associated with cl 50 such as IT equipment and security, protection of sensitive ATO information, and ensuring employees remained productive;
(7) the matters identified by the ASU in contention (6) are not “determinative” of an arrangement referred to by cl 50. The manager/delegate would be able to take into account other matters such as the capacity to agree the costs of the arrangement under cll 50.2(c) and 50.6, as well as the impact on other employees of any such arrangement under cl 50 of the EA;
(8) the essential underpinning of cl 50 of the EA is not employee safety but “the importance of an appropriate balance between working and personal lives” as recognised in cl 43.1;
(9) I agree that the existence of a formal arrangement under cl 50 is to be determined objectively. In the present case, the objective evidence is intractable. The ATO established a pandemic response, one part of which was to facilitate a rapid transition to working from home for as many employees as possible. That response was not subject to cl 50 of the EA. The arrangements to be entered into under that response did not constitute arrangements under cl 50 of the EA because they did not involve application of either that clause or the associated Working at home policy, and were on terms different from such arrangements under cl 50 of the EA, in particular in respect of notice of termination and suspension, but also duration (as arrangements under cl 50 were generally for a fixed term not exceeding 12 months pursuant to the Working at home policy whereas arrangements under the ATO’s pandemic response were interim and temporary and of indeterminate duration);
(10) even if not determinative, the labels “interim” or “temporary” to describe the WFH Guide are relevant; and
(11) I disagree that the arrangements with the seven employees constituted a formal arrangement within the meaning of cl 50.1.
448 It follows from these conclusions that the circumstances relating to Mr Powell being directed on 22 April 2020 by email to return to the office did not constitute a breach of cl 50 of the EA. Nor did subsequent circumstances in which Mr Powell was required to attend the office for training and then required to attend the office generally.
6. FALSE OR MISLEADING REPRESENTATIONS
6.1 Overview
449 As noted, s 345(1)(a) of the FW Act provides that “a person must not knowingly or recklessly make a false or misleading representation about the workplace rights of another person”.
450 The alleged knowing or reckless false or misleading representations on which the ASU relies are:
(1) the “WFH Cessation Statement” in the WFH Guide (“[w]hen working at home, you are required to:… [a]ttend the workplace when requested by a manager where appropriate and possible to do so”);
(2) the “Unilateral Termination Representation” in the WFH Guide (“interim working from home arrangements confirmed during the COVID-19 response supersede any pre-existing working from home agreements”); and
(3) the “ATO Intention Representation” (Mr Moore’s 13 May 2020 letter to Mr Lapidos that the “ATO does not consider this arrangement to be a working from home arrangement as envisaged under clause 50.1 of the EA”).
451 It follows from my other conclusions that the only alleged false or misleading representation about the workplace rights of another person that could possibly arise in this case is the alleged “Unilateral Termination Representation” in the WFH Guide.
6.2 Principles
452 The applicable principles were not in dispute.
453 In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation [2017] FCA 1091 Mortimer J said:
(1) “[o]ne apparently consistent principle is that the particular group to whom the representations are alleged to be directed must be identified”: [197];
(2) “[i]n s 345 [of the FW Act], it is clear the Parliament has sought to restrict contraventions to circumstances where a mental element, or particular state of mind, is present” (that is, the knowing or reckless elements): [224];
(3) “the FW Act is, through s 345, intending to protect the rights the FW Act itself gives to workers, and ensure that no person (whether employer or anyone else) misleads workers about what rights they have under the FW Act”: [250]; and
(4) “the word “about” in s 345 means “in relation to” or “concerning”: that is, it contemplates some degree of connection or relationship between the representation and (relevantly) the exercise of a workplace right: see generally Gold Coast City Council v Satellite Wireless Pty Ltd [2014] FCAFC 51; 220 FCR 412 at [38]-[39], [43] (the Court); R v Le [2002] NSWCCA 186; 54 NSWLR 474 at [59] (Heydon JA, Dunford and Buddin JJ agreeing). The connection must be sufficient for the operative false or misleading conduct to occur. That is not to say there must be a causal connection: rather it is to recognise that the core purpose of the prohibition is to protect the exercise of the identified workplace rights in the FW Act from conduct which could undermine, frustrate or otherwise adversely affect the exercise of those rights”: [254].
454 In Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25; (2015) 230 FCR 298 at [159], Logan, Bromberg and Katzman JJ said:
A representation is misleading if it has a tendency to lead a person into error: Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640 at [39]. Of course, it is possible that a half-truth or an ambiguous remark or even silence may have this tendency (Justice JD Heydon AC, Thomson Reuters, Trade Practices Law – Competition and Consumer Law, vol 3 (at Service 178) [190.150]). But the words in the documents must be read in context. As Gibbs CJ said of misleading conduct contrary to s 52 of the Trade Practices Act 1974 (Cth), “[i]t is obvious that where the conduct complained of consists of words it would not be right to select some words only and to ignore others which provided the context which gave meaning to the particular words”: Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 at 199; see also Elders Trustee and Executor Co Ltd v E G Reeves Pty Ltd (1987) 78 ALR 193 at 241 (Gummow J).
455 It is also well established that a tendency to lead a person into error is required, not a tendency to create mere confusion or wonderment in the mind of the person: Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44; (1982) 149 CLR 191 at 198, 209–210, Taco Company of Australia Inc v Taco Bell Pty Ltd [1982] FCA 170; (1982) 42 ALR 177 at 201–202, Campomar Sociedad, Limitada v Nike International Limited [2000] HCA 12; (2000) 202 CLR 45 at [106].
456 In Australian Education Union v Royal Melbourne Institute of Technology [2018] FCA 1985 at [44] Wheelahan J said:
In order to engage s 345 it must be shown that the false or misleading representation was made “knowingly or recklessly”. The state of mind required by s 345(1) of the Act attaches to the false or misleading quality of the representation, not the act of the making of the representation. What is required is that a false or misleading statement is made knowing it to be false, or recklessly indifferent as to its truth: Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298 at 329 [161]. In CEPU v Australian Postal Corporation [2017] FCA 1091 at [257] Mortimer J stated that no authorities have considered the scope or operation of the mental element in s 345. I did not hear full argument on the content of the word “recklessly” in s 345 for the purposes of this urgent application. My preferred view is that what is arguably required is proof of subjective recklessness consistent with criminal law principles: Shop, Distributive and Allied Employees’ Association v Karellas Investments Pty Ltd (No 2) (2007) 166 IR 51 at 69–70 [86] –[92] (Graham J) (upheld on appeal without consideration of this issue: (2008) 166 FCR 562). See also: Australian Securities and Investments Commission v Mariner Corporation Ltd (2015) 241 FCR 502 at 552–6 [248]–[279]. However, it may be arguable that an objective element is imported: Fair Work Ombudsman v Ecosway Pty Ltd [2016] FCA 296 at [186]–[199], but noting that Ecosway concerned “reckless” in the different legislative context of s 357(2) of the Fair Work Act, and its legislative history.
457 In Retail and Fast Food Workers Union Incorporated v Tantex Holdings Pty Ltd [2020] FCA 1258; (2020) 299 IR 56 Logan J said at [43]–[45]:
…the choice of the formulation “knowingly or recklessly” avoids controversies which have attended the import of the word “wilfully” in offence or penal provisions, qv Iannella v French (1968) 119 CLR 84, at 93. The observation of the Full Court in CFMEU v BHP, at [161], confirms what a reading of s 345 would in any event suggest, which is that the alternative mental elements in that section each extend to the false or misleading quality of the representation.
As to the import of those alternatives, the same “knowingly or recklessly” formulation was considered in the analogous context of statement focussed offences in Comptroller-General of Customs v Woodlands Enterprises Pty Ltd [1996] 1 Qd R 589 (Woodlands Enterprises). In that case, Pincus JA, at 602, with whom Fitzgerald P and McPherson JA materially agreed, having referred to the meaning ‘“purposely or deliberately or intentionally untrue”’ adopted in Murphy v Farmer [[1988] HCA 31; (1988) 165 CLR 19], at 29, observed, “‘knowingly’ imports I think about as strong a mental element as ‘false or wilfully misleading’ does”. As to “recklessly”, Pincus JA, at 603, considered that this alternative was sufficiently proved by a finding that the maker of the statement had “closed his eyes to the obvious or at least continued to claim rebates on the fuel knowing that it was likely that the supply of fuel was a sale, and not caring whether or not it was a sale”. This approach to what amounts to reckless is subjective in focus looking to the maker of the statement. That subjective focus is consistent with the like focus given by the alternative “knowingly”. It would be an odd construction of s 345 to conclude that one alternative “knowingly” required proof of a subjective intent whereas the other alternative, “recklessly” was sufficiently proved by an objective construct…
After Woodlands Enterprises came Banditt v The Queen [[2005] HCA 80;] (2005) 224 CLR 262 (Banditt), in which Gummow, Hayne and Heydon JJ offered, at [1]–[3], these observations about the meaning of recklessness as a criterion for legal liability:
1 The term “reckless” has various uses as a criterion of legal liability. This appeal turns upon one such use of the term in the New South Wales criminal law, but it is convenient first to consider some aspects of the civil law.
2 When “reckless” is used in applying the principles of the tort of negligence, the yardstick is objective rather than subjective. On the other hand, to sustain an action in deceit, fraud is proved when it is shown “that a false representation has been made (1) knowingly, or (2) without belief in its truth, or (3) recklessly, careless whether it be true or false”. But (3) is but an instance of (2) because, as Lord Herschell put it in Derry v Peek [(1889) 14 App Cas 337 at 374]: “[O]ne who makes a statement under such circumstances can have no real belief in the truth of what he states.” This reasoning is akin to that which supports the evidentiary inference explained by Lord Esher MR as being that one who wilfully shuts his eyes to what would result from further inquiry may be found to know of that result.
3 To these expositions of the civil law by Lord Herschell and Lord Esher there may be added the following statement by Lord Edmund-Davies in his dissenting speech in Commissioner of Metropolitan Police v Caldwell:
So if a defendant says of a particular risk, ‘It never crossed my mind,’ a jury could not on those words alone properly convict him of recklessness simply because they considered that the risk ought to have crossed his mind, though his words might well lead to a finding of negligence. But a defendant’s admission that he ‘closed his mind’ to a particular risk could prove fatal, for, ‘A person cannot, in any intelligible meaning of the words, close his mind to a risk unless he first realises that there is a risk; and if he realises that there is a risk, that is the end of the matter’.”
458 On this basis I accept the submissions for the respondents that:
(1) a false or misleading representation is made “knowingly” where the maker of the representation does so “purposely or deliberately or intentionally” while knowing that the representation is untrue (Tantex at [46]; also Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Adelaide Airport Case) [2021] FCA 951 at [117]); and
(2) a representation is made “recklessly” when the maker of the representation either closes their eyes to the obvious as to the truth of the representation, or, knowing that it is likely that the representation is not correct, chooses to make it, not caring whether it is correct or misleading. In this regard the maker of the representation must have this state of mind. It is not sufficient to prove that a reasonable person in the maker’s position would have had such a state of mind (Tantex at [42]–[51]).
459 To the extent I need to do so, I also reject the ASU’s formal submission that s 361(1) of the FW Act might mean that the impugned state of mind is to be presumed unless the person proves otherwise. I do not see that construction of s 361(1) to be open given that the presumption applies only to the reason for or intent with which the action is taken. In context, this presumption does not apply to the knowing or reckless requirements of s 345(1).
6.3 WFH Cessation Statement
460 For the reasons already given, the statement made in the WFH Guide (“[w]hen working at home, you are required to: … [a]ttend the workplace when requested by a manager where appropriate and possible to do so”) was accurate. It was not false or misleading. It was not about any workplace right under cl 50 of the EA.
461 Even if cl 50 of the EA applied to the ATO’s pandemic response, I would not have found that the inclusion of this statement in the WFH Guide involved any knowing or reckless false or misleading representation about the workplace rights of any ATO employee covered by the EA. This is because:
(1) as noted, cl 50.1 of the EA contains the proviso “provided ATO operational requirements can continue to be met” which is the foundation for the requirement in the existing Working at home policy for employees to attend the office when required by their manager to do so;
(2) that provision was always in the Working at home policy which applied to arrangements under cl 50 of the EA; and
(3) accordingly, if they had believed that cl 50 of the EA applied to arrangements under the WFH Guide forming part of the ATO’s pandemic response, the ATO officers also would have reasonably believed that the WFH Cessation Statement was consistent with the existing policy about arrangements under cl 50.
462 The submissions for the ASU do not confront these realities.
463 Accordingly, I do not agree that the ordinary and reasonable ATO employee interested in the ATO’s pandemic response and the associated WFH Guide would “likely conclude that, absent express words to the contrary, the method of implementing working at home would conform with the rights they had under the enterprise agreement”. They certainly would not have done so based on anything the ATO said or did (as discussed above). Rather, the ordinary and reasonable ATO employee interested in the ATO’s pandemic response and the associated WFH Guide would likely conclude that the ATO was implementing an extraordinary response to an extraordinary circumstance, which would continue only so long as the extraordinary circumstance required, and which was intended to provide an opportunity to arrange to work from home outside of the ordinary operation of cl 50 of the EA and the associated Working at home policy.
464 Further, and as the respondents submitted:
(1) the WFH Guide did not say that an employee who was working from home under an approved arrangement was required to cease doing so upon a request from their manager to attend the workplace, where appropriate and possible (as alleged in [47] of the ASU’s pleading);
(2) the WFH Guide said that “[w]hen working at home, you are required to: … [a]ttend the workplace when requested by a manager where appropriate and possible to do so” which does not convey that the arrangement had ceased; and
(3) the WFH Guide said nothing about the Process Participation Right, the Employee WFH right, or the WFH Content Right.
6.4 Unilateral Termination Representations
465 Contrary to the ASU’s case, the statement in the WFH Guide from 2 April 2020 onwards that “[a]ny interim working from home arrangements confirmed during the COVID-19 response supersede any pre-existing working from home arrangements” would not have conveyed to the ordinary and reasonable ATO employee covered by the EA that:
(1) the ATO had ended existing formal working from home arrangements under cl 50 of the EA; and
(2) the ATO had, and could, unilaterally repudiate working at home arrangements made under the EA during, or by reason of, the COVID-19 pandemic response.
466 I accept that the statement in the WFH Guide “[a]ny interim working from home arrangements confirmed during the COVID-19 response supersede any pre-existing working from home arrangements” is ambiguous and might have given rise to confusion in the minds of ATO employees. But I do not accept that the statement would have conveyed the representation as alleged to the ordinary and reasonable ATO employee covered by the EA.
467 The first pleaded representation is that “the ATO had ended existing formal working from home arrangements under cl 50 of the EA”. By “ended”, I understand the ASU means brought to an end permanently. That meaning would not have been conveyed to the ordinary and reasonable ATO employee covered by the EA because every other part of the WFH Guide exposed that it was an interim and temporary measure only. In that context, it would not occur to the ordinary and reasonable ATO employee covered by the EA that the WFH Guide meant that any existing formal arrangement under cl 50 of the EA was terminated by reason of an arrangement being approved under the WFH Guide. They would have assumed or understood that the operation of any approval under the WFH Guide itself was merely temporary.
468 The second pleaded representation is that the ATO had, and could, unilaterally repudiate working at home arrangements made under the EA during, or by reason of, the COVID-19 pandemic response. Again, a repudiation cannot be interim or temporary. It is permanent. For the same reasons as given above, the ordinary and reasonable ATO employee covered by the EA would have assumed or understood that the operation of any approval under the WFH Guide itself was merely temporary.
469 It follows that the pleaded misrepresentations case cannot succeed.
470 I note that Mr Lapidos said that:
When I first read these words, I thought they contemplated that employees who had a pre-existing working at home arrangement that allowed them to work at home during the week would have this replaced with a new formal working at home arrangement that covered all their regular hours.
471 This does not suggest Mr Lapidos understood the words to mean that the existing cl 50 arrangement had ended or been terminated.
472 The respondents repeatedly made clear that they held the ASU to its pleaded case.
473 In the context of allegations of involvement of individual ATO officers in the alleged contraventions and their consequential exposure to civil penalties, the need to hold the ASU to its pleaded case is particularly important. In this regard I have in mind that:
(1) it was put to Mr Chapman that the statement meant that the arrangements under the WFH Guide replaced any existing formal arrangement under cl 50 of the EA. Mr Chapman disagreed but the relevant point is that it was not put to him that the arrangements under the WFH Guide “temporarily replaced” any existing formal arrangement under cl 50 of the EA for the duration of the ATO’s pandemic response only;
(2) it was put to Mr Moore that his purpose in including the statement in the WFH Guide was “to bring everyone onto the guide”, which he denied. It was not put to Mr Moore that his purpose was that arrangements under the WFH Guide temporarily replaced any existing formal arrangement under cl 50 of the EA for the duration of the ATO’s pandemic response only. As noted, Mr Moore’s reference to “supersede” meaning “replace in effectiveness” was not further explored and was given in a context of his intention that “the guide provided so much more additional flexibility that they could actually sit over the top of the formal working from home arrangements, and cover full time work that formal agreements wouldn’t have done”;
(3) it was put to Ms Curtis that the intention of the statement was for the WFH Guide arrangements to replace any existing working from home arrangement under cl 50 of the EA. She disagreed. Again, the point is that it was not put to her that she intended that arrangements under the WFH Guide would temporarily replace any existing formal arrangement under cl 50 of the EA only for the duration of the ATO’s pandemic response; and
(4) a representation that the ATO intended arrangements under the WFH Guide to temporarily replace any existing formal arrangement under cl 50 of the EA only for the duration of the ATO’s pandemic response was not put to Mr Geale.
474 In these circumstances it would be unfair to permit the ASU now to depart from its pleaded case in respect of the Unilateral Termination Representations.
6.5 ATO Intention Representation
475 Mr Moore’s statement in the 13 May 2020 letter to Mr Lapidos was that “[t]he ATO does not consider this arrangement to be a working from home arrangement as envisaged under clause 50.1 of the EA”. The “arrangement” in question was working from home arrangements under the WFH Guide forming part of the ATO’s pandemic response.
476 Mr Moore’s statement was not false or misleading. It was correct. As a correct statement, it was also not about any workplace rights under cl 50 of the EA.
477 Even if an arrangement under the WFH Guide was subject to cl 50 of the EA, I would not have found Mr Moore’s statement to be knowingly or recklessly false or misleading. In that event, the statement would have accurately conveyed the actual position of the ATO. That position would have been legally wrong, but would have accurately reflected the view of the ATO as attributable to it by reason of the views of the relevant ATO officers. On that basis, the statement would still not have been false or misleading. It would have merely been wrong. And in any event, in such a case, Mr Moore would have had reasonable arguments to consider the statement of the ATO’s position to correctly reflect the law (as discussed above). As such, I do not see how it could be concluded that Mr Moore knew of the falsity of the statement or was recklessly indifferent to it.
478 Further, I agree with the respondents that:
…the ASU Closing now pivots from its pleaded case. While the pleaded case hinges on the representation made by Mr Moore to the ASU (Mr Lapidos), the ASU Closing now attempts to make relevant what managers may have been communicating to their staff about the status of the WFH Guide Arrangements. In any event, even with this shift, the ASU accepts that Mr Moore’s evidence was that managers were communicating in accordance with what the ATO was advising them. There is no evidence that the ATO had advised managers anything contrary to the statement contained in the Moore Statement that arrangements made under the WFH Guide did not constitute Clause 50.1 Agreements, which Mr Moore, on advice, believed to be true.
479 For these reasons, the whole of the ASU’s false and misleading representations case must fail.
7. THE ACCESSORIAL LIABILITY CASE
480 Given that I have rejected the whole of the ASU’s case, it follows that I also reject its case of accessorial liability against the various ATO officers.
481 The relevant provision is s 550 of the FW Act which provides that (notes omitted):
(1) A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.
(2) A person is involved in a contravention of a civil remedy provision if, and only if, the person:
(a) has aided, abetted, counselled or procured the contravention; or
(b) has induced the contravention, whether by threats or promises or otherwise; or
(c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
(d) has conspired with others to effect the contravention.
482 The test is knowing and intentional participation in the contravention in the sense that the person must know the facts that make up the contravention and intend to give effect to those facts whether or not they know the facts involve a contravention: Yorke v Lucas [1985] HCA 65; (1985) 158 CLR 661 at 667–668; Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2017] FCAFC 50 (CFMEU v BHP Coal) at [59].
483 I do not see how it is possible for the Commissioner to have any accessorial liability under s 550 of the FW Act merely by reason of the Commissioner’s position as Agency Head. That would be to attribute liability to a person who in fact may have known nothing about the particular facts of the alleged contravention.
484 Further, I consider that the doctrine of vicarious liability cannot be used to circumvent the requirement for personal knowing intentional involvement that s 550 requires for accessorial liability. While it may be accepted that the FW Act does not exclude the common law doctrine of vicarious liability (see for example, Australian Building and Construction Commissioner v McDermott (No 2) [2017] FCA 797; (2017) 252 FCR 393 and Hanley v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2000] FCA 1188; (2000) 100 FCR 530), I do not see how the Commissioner could be vicariously liable for the conduct of employees when the agreed position of the parties is that it is the Commonwealth which is the employer (not the Commissioner), and the role of the Commission is merely the employing authority. In any event, I do not consider that the submissions of the parties provide sufficient assistance to express any further views in this regard.
485 The presumption in s 361(1) of the FW Act does not apply to accessorial liability. While CFMEU v BHP Coal at [59] left open the possible application of the s 361(1) presumption to the issue of intention, it cannot apply to knowledge. See also Australian Red Cross Society v Queensland Nurses’ Union of Employees [2019] FCAFC 215; (2019) 273 FCR 332 at [97].
486 One aspect of the required knowledge would have been that cl 50 of the EA applied to the ATO’s pandemic response. The alleged accessories, Mr Geale, Ms Curtis and Mr Chapman did not possess that knowledge. In fact, they held knowledge to the contrary.
487 The ASU otherwise relies on ss 793 and 795(2) of the FW Act and the common law doctrine of vicarious liability. All must be rejected given my conclusions above.
488 Further, if my conclusions are wrong and the WFH Guide arrangements were subject to cl 50 of the EA, I consider that the following conclusions follow.
489 Section 793 involves attributing to a body corporate the conduct of its officers, employees and agents within the scope of his or her actual or apparent authority. The result of s 793 applying would not be to fix the Commissioner with any form of accessorial liability if cl 50 of the EA applied to arrangements under the WFH Guide.
490 Section 795(1) provides that “the employer of an employee (a public sector employee) employed in public sector employment must act only through the employee’s employing authority acting on behalf of the employer”. Again, the Commissioner is the relevant employing authority so accessorial liability is not in play.
491 Otherwise, the respondents said that:
Any liability of the Commonwealth by operation of s.793 or s.795(2) of the Fair Work Act is contingent upon primary liability of Mr Geale, Ms Curtis and Mr Moore being established. For the reasons set out above, such liability does not arise, and the consequential liability against the Commonwealth for the alleged contraventions of s.345(1) will not flow.
If the Court finds that the primary contravention is made out, it is accepted that, by operation of ss.793(1) and 795(2) of the Fair Work Act, the conduct of the relevant officer is taken to have been engaged in by the Commonwealth.
8. CONCLUSIONS
492 The pandemic was an exceptional circumstance. It placed enormous stresses on most Australians. The ATO officials who are individual respondents in the present case were faced with extraordinary circumstances. The ATO was of fundamental importance to the Australian government’s pandemic management. Mr Geale said, for example:
Most of my team over that weekend and probably for the most previous week had been working 20 plus hours a day to deal – this wasn’t the only issue that we had on our plate. I was also managing JobKeeper, cashflow boost, you know, many, many other operational issues.
493 This is unsurprising. The ATO had to keep functioning. It also had to protect its employees from unacceptable health risks. It had to turn around its usual operations of working from the office to working from home for as many people as it could with exceptional speed to achieve these objectives. With hindsight, Mr Geale for one accepted that some things could have been made clearer. But it is impossible to infer that the ATO officers were doing other than acting in good faith in the interests of the interdependent considerations of enabling the ATO to keep functioning and not exposing its employees to unacceptable health risks.
494 Nothing suggests that the ATO officers used the pandemic as some kind of stalking horse to undermine workplace rights in the EA. In circumstances where urgent action on such a large scale was taken by the ATO, it would be surprising if some mistakes were not made and some confusion not caused. The idea that the ATO officers misled Mr Lapidos about the ATO’s pandemic response and the urgent transition of employees to working from home, so the ASU could not perform its functions as it wished to do so during the early phase of the pandemic, which appears to be the principal motivation for this litigation, is untenable on the evidence.
495 For the reasons above, the ASU’s case must be rejected. I will order that the proceeding be dismissed.
I certify that the preceding four hundred and ninety-five (495) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jagot. |
Associate:
NSD 1288 of 2020 | |
JACQUI CURTIS | |
Fifth Respondent: | JEREMY MOORE |
Sixth Respondent: | BRADLEY CHAPMAN |
