Adams v Australian Taxation Office [2025] FedCFamC2G 675

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

1. The applicant, Mr Adams, used to be a Deputy Commissioner at the Australian Taxation Office (ATO), the first respondent. He was dismissed from that position on 8 May 2024.
2. On 1 August 2024 Mr Adams filed in this Court a Form 2 Claim Form alleging dismissal in contravention of the Fair Work Act 2009 (Cth) (FW Act). He did not file an application as he should have but the registry appears to have accepted the claim form as initiating process. On 10 October 2024 he filed a statement of claim, alleging that the ATO had breached his contract of employment as well as the general protections provisions of the FW Act. Mr Adams also alleged that the second to sixth respondents were liable as accessories to the ATO's breaches of the FW Act. The second and third respondents were, at relevant times, senior ATO officers, the fourth and fifth respondents were at different times the Commissioner of Taxation (Commissioner) and the sixth respondent was the Australian Public Service Commissioner (PS Commissioner).
3. Mr Adams seeks reinstatement, monetary compensation, damages and pecuniary penalties.

1. The respondents have filed an application in a proceeding seeking, relevantly, an order transferring this matter to the Federal Court. Although Mr Adams consents to the application that is not the end of the matter.
2. For the following reasons the application will be dismissed.

1. Mr Adams alleges that his employment was governed by legislation, the ATO's policies and guidelines, and various determinations (Determinations) made under s.24 of the Public Service Act 1999 (Cth) (PS Act). It was alleged that those Determinations "satisfied the required formalities of contractual formation", namely offer, acceptance and consideration, and:

... set out the key terms of the common law contract between the Applicant as employee and the First Respondent as employer at relevant times.

1. It was alleged that the ATO owed Mr Adams a number of duties under his contract of employment, which duties arose expressly or implicitly out of the Determinations or otherwise as matters of fact or custom. Those duties were said to include:

(a) a duty of consistency;

(b) a performance assessment duty;

(c) a learning and development duty;

(d) a termination duty; and

(e) a dispute resolution duty.

1. Further, the Determinations themselves were alleged to contain other implied terms namely:

(a) a duty of good faith; and

(b) a duty to co-operate

which, it can be assumed, were implicitly alleged to also be implied terms of the contract of employment.

1. The statement of claim sets out allegations concerning the steps leading to Mr Adams's dismissal and canvasses alleged performance concerns, performance management and ultimately his dismissal on the stated ground of "unsatisfactory performance".

1. Mr Adams alleged that he had been entitled to various workplace rights and that in the period preceding his dismissal he had exercised those rights by making various complaints and inquiries and by taking personal leave on and from 29 January 2024.

1. Mr Adams alleged that various sorts of adverse action other than dismissal had been visited upon him by the second respondent for reasons prohibited by the FW Act. It is not necessary to detail these allegations for the purposes of the present interlocutory application other than to say that they may be found in paras.81 to 101 and 123 to 155 of the statement of claim. It was further alleged variously in paras.105 to 122 and 156 to 171 of the statement of claim that the remaining respondents had also taken non-dismissal adverse action against Mr Adams for reasons prohibited by the FW Act.
2. It was alleged that those instances of adverse action were taken variously:

(a) because Mr Adams had the following workplace rights:

(i) an entitlement to the benefit of the Determinations, including an entitlement to have the ATO, its employees and agents act consistently with the various duties identified above at [7] and [8] (Duties);

(ii) an ability to make complaints or inquiries to the Commissioner or the Australian PS Commissioner in relation to the ATO, its employees and agents acting inconsistently with those entitlements;

(iii) an ability to make a complaint or inquiry in relation to his employment, including the second, third and fourth respondents' performance management deficiencies vis-à-vis Mr Adams;

(iv) an entitlement to have the ATO, its employees and agents act consistently with their duties of care towards him under the Work Health and Safety Act 2011 (Cth) and the general law; and

(v) an entitlement to personal leave;

(b) to prevent the exercise by Mr Adams of some or all of those workplace rights; or

(c) because Mr Adams had exercised his workplace rights by making various complaints and by taking personal leave.

1. It was further alleged that the PS Commissioner took adverse action against Mr Adams by issuing a certificate for the termination of his employment, which constituted a dismissal, and also injured him in his employment, altered his position to his prejudice, discriminated between him and other employees and consisted of steps to organise further adverse action, specifically termination. It was contended that that alleged averse action was taken for reasons that were substantially the same as those alleged to have motivated the other, non-dismissal, adverse action referred to earlier.
2. Mr Adams further alleged that the natural person respondents had advised, encouraged, aided, abetted, counselled, procured, been knowingly concerned in or party to, or had conspired "with others" to effect, the breaches of the FW Act alleged.

Public Service Act

...

(c) the Head of a Statutory Agency.

(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.

...

Taxation Administration Act 1953

1. Together, ss.4 and 4A of the Taxation Administration Act 1953 (Cth) provide that the Commissioner is the head of the statutory agency made up of the Commissioner and the Australian Public Service (APS) employees assisting him or her.

Fair Work Act and Regulations

550 Involvement in contravention treated in same way as actual contravention

(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. ...

...

793 Liability of bodies corporate

(1) Any conduct engaged in on behalf of a body corporate:

(a) by an officer, employee or agent (an official) of the body within the scope of his or her actual or apparent authority; or

(b) by any other person at the direction or with the consent or agreement (whether express or implied) of an official of the body, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the official;

is taken, for the purposes of this Act and the procedural rules, to have been engaged in also by the body.

...

795 Public sector employer to act through employing authority

Employer to act through employing authority

(1) For the purposes of this Act and the procedural rules, 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.

(2) For the purposes of this Act and the procedural rules, anything done by or to a public sector employee's employing authority acting on behalf of the employee's employer is taken to have been done by or to the employer (as the case may be).

...

(4) Public sector employment means employment of, or service by, a person in any capacity (whether permanently or temporarily, and whether full-time or part-time):

(a) under the Public Service Act 1999 or the Parliamentary Service Act 1999; or

(b) by or in the service of a Commonwealth authority; or

...

Meaning of employing authority

(6) An employing authority of an employee is the person prescribed by the regulations as the employee's employing authority.

1. The Fair Work Regulations 2009 (Cth) (FW Regulations) relevantly provide:

6.09 Public sector employer to act through employing authority - meaning of employing authority

For subsection 795(6) of the Act, the employing authority of a person mentioned in an item of Schedule 6.3 is:

(a) the person or body mentioned in the item as the employing authority; or

(b) each person or body mentioned in the item as the employing authority.

1. Schedule 6.3 to the Regulations provides that for an APS employee performing duties or employed in a particular agency as defined in the PS Act, their employing authority or authorities includes the agency head.

1. The Federal Circuit and Family Court of Australia Act 2021 (Cth) (Act) relevantly provides:

153 Discretionary transfer of proceedings

(1) If:

(a) a proceeding is pending in the Federal Circuit and Family Court of Australia (Division 2); and

(b) the proceeding is not a family law or child support proceeding;

the Court may, by order, transfer the proceeding from the Court to the Federal Court.

(3) In deciding whether to transfer a proceeding to the Federal Court, the Federal Circuit and Family Court of Australia (Division 2) must have regard to:

(a) any Rules of Court made for the purposes of subsection 154(2); and

(b) whether proceedings in respect of an associated matter are pending in the Federal Court; and

(c) whether the resources of the Federal Circuit and Family Court of Australia (Division 2) are sufficient to hear and determine the proceeding; and

(d) the interests of the administration of justice.

1. The Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules) relevantly provides:

8.02 Transfer to Federal Court

(1) Unless the Court otherwise orders, an application under paragraph 153(2)(a) of the Act to transfer a proceeding from the Court to the Federal Court must:

(a) be made on or before the first court date for the proceeding; and

(b) be included in an application or a response in accordance with the approved form; and

(c) be supported by an affidavit.

(4) In addition to the factors to which the Court must have regard under subsection 153(3) of the Act in deciding whether to transfer a proceeding to the Federal Court, the Court must take the following factors into account:

(a) whether the proceeding is likely to involve questions of general importance, such that it would be desirable for there to be a decision of the Federal Court on one or more of the points in issue;

(b) whether, if the proceeding is transferred, it is likely to be heard and determined at less cost and more convenience to the parties than if the proceeding were not transferred;

(c) whether the proceeding will be heard earlier in the Court;

(d) the availability of particular procedures appropriate for the class of proceeding;

(e) the wishes of the parties.

1. In support of their application in a proceeding, the respondents relied on the affidavit of their solicitor, Mr Gahan, sworn or affirmed on 24 October 2024. Mr Gahan deposed that:

(a) based on his experience advising APS agencies, significant numbers of APS employees have the terms and conditions of their engagements set out in determinations made under s.24(1) of the PS Act;

(b) the current policy of the Commonwealth Government regarding the use of s.24(1) PS Act determinations for SES officers is set out in the Public Sector Workplace Relations Policy 2023 which relevantly states:

1. Generally, SES and equivalent employees are employed on individual arrangements such as common law arrangements or on individual determinations under s24(1) of the PS Act.
2. Any general pay increase for SES and equivalent employees must not exceed what is provided for non-SES employees.

(c) between 6 October 2022 and 28 March 2023, the policy of the Commonwealth Government was to provide pay rises for all APS employees by way of s.24(1) determinations or other relevant enabling legislation.

1. In his affidavit, Mr Gaham submitted that Mr Adams's statement of claim raised questions of general importance in relation to:

(a) whether the Determinations had any contractual standing (Status Issue); and

(b) whether the Determinations incorporated the various implied terms alleged (Implied Terms Issue);

and also in relation to:

(c) the operation of s.550 of the FW Act; and

(d) the operation of s.795(2) of the FW Act,

given the identity of the respondents as, variously, the Commonwealth, current and former agency heads and APS employees under the PS Act (Employing Authority Issue).

1. Mr Gahan deposed to his belief that that the Status Issue, the Implied Terms Issue and the Employing Authority Issue raised questions of general importance for the ATO because:

(a) the position advanced by Mr Adams in relation to the Status Issue and the Implied Terms Issue was not supported by the cases;

(b) in the past, SES officers tended to have the terms and conditions of their engagements set out in s.24(1) determinations, either in one applying to a particular SES officer or in one applying to all SES officers in the APS agency;

(c) determination of the Status Issue and the Implied Terms Issue had the capacity to impact employment arrangements for all APS employees, now and in the future;

(d) in relation to the Employing Authority Issue, he was unaware of any cases having considered whether a person who is an employing authority under the FW Act and FW Regulations can, under s 550 of the FW Act, be personally liable for actions they take in that capacity;

(e) this is a high-volume Court: Chambers v University of Western Australia [2023] FCA 322; and

(f) the proceeding was likely to involve multiple hearings, both interlocutory and final, over many days and it might be more cost effective and time efficient if the proceeding were heard in the Fair Work Division of the Federal Court of Australia.

1. In their written submissions, the respondents argued that the Status Issue, the Implied Terms Issue and the Employing Authority Issue each raised a question of general importance which justified the transfer of the matter to the Federal Court. In relation to the Status Issue the respondents argued that Determinations unilaterally impose terms and conditions of employment on employees without negotiation and that if they were to be common law contracts as Mr Adams alleges in his statement of claim:

... then this will have widespread ramifications as to the validity of extant Determinations and materially affect the manner in which Determinations will be able to be utilised and implemented in the future.

1. In relation to the Implied Terms Issue, the respondents submitted that the ATO and the Commonwealth have:

... assumed and acted on the basis that the Determinations contain only express terms, subject to the implication of the rule of natural justice that regulates the exercise of statutory power.

They argued that if Mr Adams's allegations that the Determinations contained implied terms of a contractual nature were to be accepted, that would reshape the contractual relationships of the Commonwealth and APS employees. This was said to be because such a situation would appear to diverge from the reasoning in Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 424 concerning the implication of terms based on crystallised custom, as would the availability of damages for the breach of statutory obligations supposedly included in the employment contract as implied terms.

1. It was submitted that the third issue, the Employing Authority Issue, raised a matter of general importance because the proposition that an agency head, could be both an employing authority and an accessory to the employing authority's alleged contraventions, would have significant practical implications for senior office holders in the APS. Similar considerations were said to apply to the PS Commissioner who, it was argued, could be joined as a party to any litigation concerning the termination of a SES employee if Mr Adams's argument on this issue were accepted, notwithstanding Jagot J's obiter comments ostensibly to the contrary in Australian Municipal, Administrative, Clerical and Services Union v Commissioner of Taxation [2022] FCA 1225 at [490] (ASU v ATO).
2. Generally, the respondent submitted that the case sought to be made by Mr Adams was novel in more than one respect and, if successful, would expose the Commonwealth to liabilities not hitherto taken into account.

Whether the proceeding is likely to involve questions of general importance, such that it would be desirable for there to be a decision of the Federal Court or the Family Court on one or more of the points in issue

1. Mr Adams's allegation that the Determinations had contractual effect is vague and lacking in relevant detail and particularisation. Specifically, it is quite unclear how it is contended that the Determination referred to in the statement of claim, or any other Determination, "constituted an offer of employment by the Fourth Respondent on behalf of the First Respondent", much less one that was accepted by performance. As it presently stands, the allegation is deficient, speculative and appears, subject to specific argument on the point, not to plead a reasonable cause of action.
2. Further, no evidence has been adduced on the present interlocutory application elucidating the content of any arguably relevant Determination which might support the contention that a particular Determination in fact amounted to an offer. Such evidence might have suggested that the allegation had some reasonable prospect of success despite the lacunal pleading of the issue, but it was not forthcoming.
3. For these reasons, I fear that this aspect of the matter may be misconceived. Consequently, I do not think, as it stands, that the supposed Status Issue supports a transfer of the proceeding to the Federal Court.

1. Assuming for the present that some or all of the Determinations formed part of an offer or offers that was or were accepted by Mr Adams, the next issue is whether or not the resulting contract included the supposed implied terms. It was argued that all the three issues identified by the respondents were matters of some complexity but that argument was not elaborated on in relation to this issue. Why it might not be determined by applying conventional tests to the evidence was not explored. The concern seems to have been that the Court might make findings contrary to High Court authority that may be applicable. I am not persuaded that transfer of the proceeding to the Federal Court is merited based on that concern.

1. The parties have not placed before the Court binding authority stating that an employee whose acts contravening the FW Act are attributed to their employer may not also be, for instance, knowingly involved in the employer's contravention and be liable as an accessory on that account. As noted earlier, the respondents referred to the reasons of Jagot J in ASU v ATO. Relevantly, her Honour said:
   1. 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.
   2. 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.
2. In that case the Commissioner was only party to the proceeding because he was the employing authority for the ATO, not because he had had any active involvement in the material conduct complained of, which had been engaged in by three other officials and concerned working from home arrangements during the COVID-19 pandemic. The three officials were found not to have possessed the knowledge necessary in the circumstances to be personally liable under s.550 of the FW Act as accessories to alleged contraventions of the FW Act by the ATO and her Honour held that ss.793 and 795 did not otherwise serve to impose accessorial liability on the Commissioner. The case does not appear to have any particular relevance to the present matter as it does not consider whether the Commissioner might have personal, accessorial liability under s.550 if his conduct as the employing authority contravened the FW Act much as the directing mind of a company might have: cf: Hamilton v Whitehead [1988] HCA 65; (1988) 166 CLR 121; Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner [2020] FCAFC 203; (2020) 281 FCR 365 at 377 [51].

1. The present question is whether any of these issues raised matters of general importance. Although the APS is a large organization that performs many important functions, I am not persuaded that its industrial relations concerns are matters of general importance, in the sense that the present issues have not been shown to be of material relevance to anyone outside the APS. A matter which is important to the APS is not necessarily a matter of general importance. I accept that a verdict for Mr Adams might for a period have disruptive consequences for the APS, but I am not persuaded that its significance would extend beyond the public sector or be of real interest to other persons apart from those with a curiosity about government and politics.

If the proceeding is transferred, it is likely to be heard and determined at less cost and more convenience to the parties than if the proceeding is not transferred

1. Nothing placed before the Court suggests that a trial in the Federal Court would be less costly and more convenient to the parties than a trial in this Court.

Will the proceeding be heard earlier in the Federal Circuit and Family Court of Australia (Division 2)

1. I am not in a position to do more than speculate on whether this Court could allocate an earlier trial date than the Federal Court could. I suspect that everything turns on the alacrity with which the parties prepare the case, rather than on the availability of trial dates and so this is a neutral consideration.

The availability of particular procedures appropriate for the class of proceeding

1. As far as I can tell, no particular procedures will be necessary to facilitate the preparation and determination of this matter. I appreciate that the Federal Court has a national Employment and Industrial Relations practice area, but the argument advanced in that connection by the respondents turned more on the number of judges attached to that area, rather than on procedures that might be employed to the advantage of this litigation.

1. As noted earlier, Mr Adams consents to the transfer of the matter.

Whether proceedings in respect of an associated matter are pending in the Federal Court

1. It was not suggested that associated proceedings are pending in the Federal Court.

Whether the resources of the Federal Circuit and Family Court of Australia (Division 2) are sufficient to hear and determine the proceeding

1. The resources of the Court's Canberra registry, where this matter was commenced and remains, are sufficient to hear and determine the proceeding.

1. Having concluded that the matters said to be ones of general importance are not, I am not of the view that the interests of the administration of justice require the matter be transferred to the Federal Court.

1. The application to transfer this matter to the Federal Court will be dismissed.

I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron.