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.