CPSU, the Community and Public Sector Union and Anor v Commonwealth of Australia

Facts 5 McCarron is employed by the Department of Employment and Workplace Relations ('the Department') as an Agreements Specialist at the OEA in Sydney. He is classified at the level of OEA five and has been engaged with the Department since 1 November 2004. 6 Shortly after joining the Department, McCarron joined the CPSU and maintains current membership. The terms and conditions of his employment are governed by an Australian Workplace Agreement ('AWA') made under s326 of the Act. Pursuant to the AWA, McCarron is entitled, by clause 28 thereof, to arrange his hourly work in a flexible manner ('flex time') and to thereby become entitled to flexible leave ('flex leave') subject to the requirements of the AWA. There are approximately 82 employees in the Agreement Services Business Unit of the OEA, of which approximately 50 are engaged in the Sydney office. 7 In October 2006, McCarron received a notification from the CPSU concerning the Day of Protest in relation to the Commonwealth Government's industrial relations laws. During October 2006 several bulletins, emails and other information were distributed by the CPSU concerning the Day of Protest. McCarron wished to attend the Day of Protest as a CPSU member in view of his belief that the industrial relations laws, which are the subject of the rally on the Day of Protest, are contrary to his interests as an employee. 8 On 18 October 2006 he received an internal memorandum from Ms Ann Skarratt (Skarratt), Corporate Director of the OEA. Relevantly, the memorandum states: 'The OEA's position is that on that day, 30 November - just like every other working day - the OEA must be able to operate normally an provide the full range of services to its clients. For this reason, leave (including flex leave) will not be approved for staff to participate in the "National Day of Community Protest". Employees will be expected to start work at the time they normally do.

If an OEA employee applies for sick leave to cover 30 November, their manager can request that they provide a medical certificate. Likewise, where there is an application for carer's leave, the employee's supervisor may request a written declaration from the employee.

Of course, any leave previously approved, that runs over 30 November, will stand.

If staff absent themselves from the workplace without approved leave, this will be an unauthorised absence and salary will be deducted for the duration of the unauthorised absence.'

9 On 19 October 2006 McCarron responded to the memorandum relevantly stating: 'I fail to see the difference between using my flexible working conditions to go shopping for a couple of hours, having a very long lunch, or going to listen to some speakers for a couple hours.

I also fail to understand how you can expect me to start at my normal 7.20 on any particular day, where my local arrangements allow me to start as late as 11am should work or personal circumstances dictate.

I am wondering if you could clarify this for me please.'

No response was received to the email and a further message, to the same effect, sent on 31 October 2006 evoked no response either. 10 On 6 November 2006 McCarron requested permission from his supervisor, Mr Brian Forbes (Forbes), to use a flex leave day on the Day of Protest. The message relevantly stated: 'In the absence of a response to my query below, I would like to apply to use some flex leave to attend the National Day of Community Protest.'

11 On Friday 10 November 2006 a response was received from Forbes which relevantly states: 'Hi Greg,

In response to your request for flex leave as noted below, in view of the directive from the Corporate Director on 18 October 2006, I am unable to approve your request of 6/11/06 for flex leave to attend the National Day of Community Protest.'

12 McCarron claims that the flex day application made for 30 November 2006 was dealt with very differently to every other application he has made. Usually such application is approved by a Business Unit Manager/Team Leader since they are responsible for operational requirements. He says that usually his Team Leader would deal with his application but because he was then transitioning between teams he approached his Senior Manager, Forbes. The Team Leader usually makes an assessment of the operational requirements of the Business Unit and whether they can be met on the day in question by consulting an Outlook calendar. The calendar records the number of employees in that team on leave. McCarron claims that on all previous occasions an application for leave has been dealt with either on the same day of the request or the following day and he has never previously experienced a delay in its approval. McCarron also deposes that there has only been one prior occasion when a staff email advised that leave would not be available due to claimed operational requirements. That occasion was 7 November 2005, when a similar protest rally was held. 13 Oral evidence was provided by McCarron which established that usually 20% of staff in the office of the OEA were absent at any one time because of leave. Such leave included sick leave, holiday leave, flex leave and any other leave to which an employee might be entitled. McCarron said that he had looked at the record for leave requested for 30 November 2006 and found that six persons had been granted approval for leave for that day. There was no evidence of whether such leave was annual leave, flex leave or other leave. 14 Mr Stephen Jones (Jones), the National Secretary of the CPSU, swore an affidavit on 15 November 2006 which confirms that McCarron is a member of the CPSU and that McCarron has asked the CPSU in writing to apply on his behalf in relation to potential breaches of his AWA. Jones deposes that the CPSU regards maximising attendance at the Day of Protest as important to the Union movement's Your Rights At Work campaign, and that the CPSU seeks to encourage attendance on such occasion. 15 Jones deposes that the OEA is a government body established under the Act the function of which is to provide assistance and advice on Workplace Agreements and to accept lodgements of Workplace Agreements made under the Act. On 19 October 2006 he became aware that the OEA had circulated a directive to staff advising that leave would not be approved on the Day of Protest. On that day, Jones wrote to Mr Peter McIlwain (McIlwain) of the OEA stating relevantly as follows: 'Dear Mr McIlwain

I am writing to you in response to the all staff advice released by Ms Ann Skarratt on Wednesday 18 October 2006. The advice states that the OEA will refuse any applications for leave or flex leave if the purpose of such leave is to attend the National Day of Community Protest on 30 November 2006.

What employees do in their own time and on authorised absences is not the concern of the OEA and the OEA has no right to intervene in employees' lives in this way. Leave applications must be dealt with in accordance with employees' relevant industrial instrument. The OEA's unilateral decision to refuse all leave applications where the purpose of such leave is to attend the National Day of Community protest is in breach of employees' rights under the relevant industrial instrument and is in breach of the freedom of association provisions of the Workplace Relations Act.

If the OEA refuses to amend its position, the CPSU and its members will have no option but to institute legal proceedings to protect the rights of its members.'

16 On 25 October 2006 McIlwain responded, relevantly stating: 'My decision to restrict access to leave on 30 November 2006 is motivated solely by the need to ensure that the OEA continues to operate in a normal fashion on that day.

The purpose of the event on 30 November is irrelevant. The decision would be the same, whatever the purpose of the event, where the event was conducted in all States and Territories, on a weekday, during business hours.

I do not consider that the reasonable and lawful direction that I have authorised amounts to a breach of the freedom of association (FOA) provisions of the Workplace Relations Act 1996. The direction was given so that the operational requirements of the Office could continue to be fulfilled. The OEA has obligations to its clients, set out in its Service Charter, which require the presence of staff in all its offices.

The OEA is scrupulous in ensuring that all employees have the right to join and participate in a union, or to chose not to join and participate in a union. I am well aware that FOA legislation protects an employee from discrimination or victimisation because they are, or are not, a member of a union. In my view, the OEA's decision does not offend these provisions, and I note that it applies equally to staff who are members of the CPSU and to staff that are not.'

RELEVANT LEGISLATION 17 Section 792 of the Act relevantly provides: '(1) An employer must not, for a prohibited reason, or for reasons that include a prohibited reason, do or threaten to do any of the following:

(a) dismiss an employee; (b) injure an employee in his or her employment; (c) alter the position of an employee to the employee's prejudice; (d) …' 18 The term prohibited reasons is defined in s 793(1) which relevantly provides: '(1) Conduct referred to in subsection 792(1) or (5) is for a prohibited reason if it is carried out because the employee, independent contractor or other person concerned:

(a) is, has been, proposes to become or has at any time proposed to become an officer, delegate or member of an industrial association;' 19 Section 807 of the Act empowers the Court on application by an eligible person to make orders where a contravention of a civil remedy provision of Part 16 of the Act has occurred. The term 'person' in Division 9 of Part 16 (which relates to enforcement of a civil remedy provision) includes an industrial association (see: s 806), and the term eligible person for the purpose of s 807 is defined in s 807(4) as follows: (4) Each of the following is an eligibleperson for the purposes of this section:

(a) a workplace inspector; (b) a person affected by the contravention; (c) a person prescribed by the regulations for the purposes of this paragraph.' 20 Pursuant to s 838 of the Act this Court may grant an injunction, as well as an interim injunction pending its decision on the granting of an injunction. However, pursuant to s 809(2) the onus lies upon the applicants to establish that the conduct complained of was being carried out for a particular reason or with a particular intent and that such conduct would constitute a contravention of Part 16 of the Act.

Standing of the CPSU 21 The initial question for determination is whether the CPSU has standing to bring these proceedings. The applicants submit that the CPSU is an eligible person within the meaning of s 807(4) which entitles it to bring proceedings under s 807(1) of the Act. The Commonwealth challenges such standing. 22 The applicants submit that the term a person affected in s 807(4)(b) should be given an expansive interpretation, and in support relies upon authorities relating to the interpretation of analogous provisions: see Allan v Trans Urban City Link Limited (2001) 208 CLR 167, and the authorities cited in Edwards v Australian Securities Commission and Ors (1997) 72 FCR 350 at 365, especially that of Attorney-General (Gambia) v N'Jie [1961] AC 617 at 635 where Lord Denning observed that the expression person aggrieved was of wide import and should be not given a narrow interpretation. The CPSU submits that fundamental issues concerning the rights of members of the CPSU will be considered on the Day of Protest, and that it is a person affected because the attendance of its members at the Day of Protest is of importance to it. The directive would prevent its members from attending. 23 The Commonwealth refers to the fact that the Day of Protest has been organised by the ACTU and that the CPSU is a national affiliate of the ACTU. Accordingly, it submits that the Day of Protest is not organised solely for the members of the CPSU. Further, the Commonwealth relies upon the advertising material which has been distributed for the Day of Protest which extends an invitation to all persons who are interested, whether members of the CPSU or not, to attend. Accordingly, the Day of Protest is not confined to being a CPSU day of protest. 24 Lockhart J in Ogle v Strickland (1987) 13 FCR 306 at 309-310said of the phrases 'person aggrieved', 'person interested' and 'person with affected interest': 'It has long been recognised that these formulae for determining standing to sue should not be given a rigid or inflexible meaning. They are flexible words which derive their meaning and take their colour from the context in which they appear and the nature of the particular statute concerned' 25 Acknowledging that the Court should interpret the expression person affected broadly, the terms of the directive must be given primary consideration. The directive is addressed to the class of persons comprising employees of the Commonwealth in their capacity as employees of the OEA and relates directly to the issue of leave approval. The directive is not addressed to the CPSU nor only those employees of the OEA who are members of the CPSU. The directive applies to all employees of the OEA. 26 Various tests relating to a person's scope of interests have been propounded. For example in Australian Foreman Stevedores Association and Others v Crone and Another, Davoren v Crone and Another (1989) 20 FCR 377Pincus J said at 382: 'There is a point, which must be fixed as a matter of judgment in each case, beyond which the court must hold that the interest of those affected are too indirectly affected to be recognised.'

Gummow J in Australian Institute of Marine and Power Engineers v Secretary, Department of Transport (1986) 13 FCR 124 also considered this concept at 133-134 as follows: '… there flows from the decision… a danger and peril to the interests of the applicant that is clear and imminent rather than remote, indirect or fanciful, and the applicant has an interests in the matter of an intensity and degree well above that of an ordinary member of the public.'

27 The above passage was relied upon by the Full Court in Broadbridge and Another v Stammers (1987) 16 FCR 296 at 298. 28 In United States Tobacco Co v Minister for Consumer Affairs and Others (1988) 83 ALR 79 the Full Court at 89 adopted the observations of Brennan J (as he then was) in Re McHattan and Collector of Customs (New South Wales) (1977) 1 ALD 67 at 70 where His Honour said: 'However, a decision which affects interests of one person directly may affect the interests of others indirectly. Across the pool of sundry interest, the ripples of affection may widely extend. The problem which is inherent in the language of the statute is the determination of the point beyond which the affection of interests by a decision should be regarded as too remote...'

29 It follows from these authorities that the Court must exercise its judgement in determining the operational scope of the legislative provision. 30 The CPSU may be indirectly affected because of the inability of some of its members to attend the Day of Protest, but this is a remote consequence of the directive. The bulletins distributed by the CPSU in relation to the Day of Protest record that the rally is not industrial action. Friends and family members are invited to attend. The Day of Protest is stated by Mr Jones to be 'a key event in the ACTU campaign'. It is described as a 'national day of union and community protest'. 31 From such broad promotion, the inference can readily be drawn that the CPSU is one of several unions participating together with non union community members generally. Accordingly the Day of Protest is not an activity the attendance at which by CPSU members is vital to the success of the Day of Protest. The directive did not relate to the CPSU. The test of any affectation upon the CPSU may be considered on the assumption that it did apply to the CPSU. What is its affect? The only affectation would be that the McCarron and possibly other members of the CPSU working the OEA would not be present at the Day of Protest. Such consequence is too remote to be considered as an affectation for the purpose of s 719(1). The principal object of the Act is stated in s 3 thereof as follows: 'The principal object of this Act is to provide a framework for cooperative workplace relations which promotes the economic prosperity and welfare of the people of Australia…' As stated in CPSU bulletins, the Day of Protest is not industrial action. The conditions of employment of McCarron and other CPSU members will not be affected if they are not present at the Day of Protest. The only immediate interest of the CPSU is to attract attendance to the Day of Protest. 32 The fact that the CPSU may have a 'sense of grievance or resentment' (see Australian Foreman Stevedores Association at 382 per Pincus J) that its members who are employed by the OEA will be unable to attend the Day of Protest does not lead to the conclusion that the CPSU is a person affected within the meaning of s 807(4)(b) of the Act. 33 It is essential that a special interest or right exist to entitle an applicant to relief in this Court: see Australian Conservation Foundation Incorporated v the Commonwealth of Australia and Others (1979) 146 CLR 493. In view of the findings above, the CPSU has no locus standi to claim an injunction or declaration.

Entitlement to leave 34 The applicants submit that the directive has injured McCarron in his employment or alternatively has altered his position to his prejudice because he has been denied the opportunity of taking flex leave to which he claims to be entitled. 35 The AWA contains the relevant provisions relating to the entitlement to and calculation of flex time. It also makes provision for flex leave arising in consequence of flex time. However, the entitlement to flex leave is only created by Clause 30(a) which relevantly provides: 'Unless otherwise specified in Part 8, Business Unit Specific Arrangements or Part 9, Employee Specific Conditions, the following arrangements will apply:

(a) the approval of flex leave is subject to operational requirements;'

36 In contrast, the concept of flex time (as opposed to flex leave) is referred to in the OEA's Flexible Working Arrangements Policy ('the policy'). The introduction to the policy states: 'The OEA's Australian workplace agreements (AWAs) provide a range of flexible working arrangements. This guide, to be read in conjunction with the AWAs, contains additional information about these arrangements.'

37 Clause 3 of the policy relevantly states: 'Working arrangements, work patterns and flextime arrangements should be settled between employees and managers at the earliest opportunity and reviewed as necessary. The following matters should be considered when working arrangements, work patterns and flextime arrangements are being settled:

Hours of work should take into account both operation requirements and the needs of individuals.'

38 Clause 4 of the policy entitled 'Hours and working patterns' relates to the hours to be worked. It contains a provision entitling a manager to revert an employee's working hours to standard hours of work if attendance is considered unsatisfactory or the employee is misusing flex time. Clause 6 of the policy contains detailed provisions concerning the accumulation of flex time. 39 The applicant submits that the emphasis of Part 3 of the AWA which is entitled 'Achieving balance through flexibility' is inconsistent with any claimed right of an employer to dictate hours of work and that the only right which an employer has to control the allocation of flex leave is in relation to 'operational requirements' as provided by Clause 30(a) of the AWA. 40 The applicants challenge the Commonwealth's claim that flex leave is not available on the Day of Protest because of operational requirements and claims that the Court should not accept that valid operational reasons exist. The applicants ask the Court to infer that the real reason for the directive arises from a desire to prevent McCarron and other members of the CPSU from attending the Day of Protest. They rely upon the fact that the directive applies to all employees of the OEA and not merely to local agencies. 41 In support of its submissions, the applicants refer to Tasmania Development & Resources v Martin [2000] FCA 414 which held that it was not sufficient for an employer merely to state that the termination of an employee was justified because of 'operational requirements'. The Court at [26] said: 'It is difficult then to consider that it would even be sufficient for an employer merely to rely upon the abolition of the position or cessation of the employment as the operational undertaking itself, since it should be able to say what requirements of finance of efficiency dictated the need for the termination. To say that the position of employment the subject of the contract is no longer required, is simply to state the conclusion.'

42 The applicants also rely upon the fact that a similar directive has only been made on one occasion, namely on the occasion of the previous union event in 2005, the fact that an application for flex leave is usually considered promptly, and the fact that it is the very date of the Day of Protest which has been selected by the OEA for the embargo on leave.

Findings relating to flex leave 43 The AWA provisions relating to flex time and the policy establish the basis upon which an employee may arrange variable working days. The only entitlement to flex leave, as distinct from flex time, is set out in Clause 30 of the AWA. 44 The approval for an OEA employee to take flex leave is dependent upon the operational requirements of the OEA. The term operational requirements has been considered in Nettlefold v Kym Smoker Pty Ltd (1996) 69 IR 370 at 373 where Lee J said of such phrase: 'Obviously it is a broad term that permits consideration of many matters including past and present performance of the undertaking, the state of the market in which it operates, steps that may be taken to improve the efficiency of the undertaking by installing new processes, equipment or skills, or by arranging for labour to be used more productively, and the application of good management to the undertaking.'

Accordingly, the concept of operational requirements may include a variety of factors likely to be incurred in the daily operations of business or government. Staffing levels of an organization is a matter which clearly falls within the concept of operational requirements. 45 The grant of such leave remained in the discretion of the OEA. Such discretion is to be exercised upon the basis of operational requirements. Accordingly the entitlement of McCarron to flex leave is dependent upon approval of the OEA. McCarron did not have a vested right to flex leave on 30 November 2006.

Did operational requirements exist? 46 The letter of McIlwain to Jones on 25 October 2006 states the reasons for the directive. The directive, according to McIlwain, was 'motivated solely by the need to ensure that the OEA continues to operate in a normal fashion on that day.' McIlwain also stated that the direction was given 'so that the operational requirements of the Office could continue to be fulfilled. The OEA has obligations to its clients, set out in its Service Charter which requires the presence of staff in all its offices.' 47 On 18 October 2006 Skarratt had provided a similar reason for the directive, namely: 'The OEA must be able to operate normally and provide the full range of services to its clients. For this reason, leave (including flex leave) will not be approved for staff to participate in the National Day of Community protest.'

48 The applicant invites the Court to infer that the true reason for the directive was the desire to prevent the employees of the OEA from attending an event organised by their union, the CPSU. 49 The memorandum of Skarratt anticipates applications for flex leave to enable attendance at the Day of Protest. It informed employees of the OEA that leave would not be approved for the 30 November 2006 because of the anticipation of inadequate operational staffing levels on that day. McIlwain's subsequent letter to Jones confirms the OEA's real concern, namely that its offices be able to provide appropriate services. In these circumstances, I am satisfied that the memorandum was not issued for the purpose of preventing such attendance. 50 Whether it was the Day of Protest or some other event which led to the potential depletion of staff is immaterial to the OEA as was relayed in Mr McIlwain's letter. Accordingly I am unable to accept the applicants' submission that the Court should infer that the directive was issued to prevent employees attending the Day of Protest. Further, I cannot accept the submission made on the basis of Tasmania Development & Resources v Martin that the operational reasons have not been explained. The reason has been provided by McIlwain as set out above. The 30th November 2006 was specifically made the subject of the directive for the very reason that it was anticipated that staffing levels at the OEA may be inadequate due to employee's attendance at the Day of Protest.

Did the directive breach the Act? 51 To constitute a breach of s 792(1) of the Act, McCarron must show that his position has been altered to his prejudice, or that the OEA threatened to bring such an alteration about (s 792(1)(c)), and that the reasons for the OEA's conduct included the fact that McCarron was a member of an industrial association (s 793(1)(a)). 52 The High Court in Patrick Stevedores Operations No. 2 Proprietary and Ors v Maritime Union of Australia and Ors (1998) 195 CLR 1 considered the meaning of the term 'alter the position of an employee to the employee's prejudice' as contained in s 298K(1) of the Workplace Relations Act 1996 (Cth) (which is identical to s 792(1) of the current Act). The majority (Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ) said: 'par (c) is a broad additional category which covers not only legal injury but any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question.'

53 Implicit in their Honour's observation is the assumption that the employee has an existing right which is, or is to be, the subject of detriment. As Einfeld J in The Employment Advocate v National Union of Workers and Anor (2000) 100 FCR 454 stated (at 468), it is not possible to determine the range of circumstances that might be found to be injurious, but a 'wide array of circumstances can be contemplated' (see [46]). The words 'injure in his employment' as contained in s 5(1) of the Conciliation and Arbitration Act 1904 have been held to be words of 'wide import': see Squires v Flight Stewards Association of Australia (1982) 2 IR 155 per Ellicott J at 164. 54 As decided above, McCarron had a right, pursuant to Clause 30, to take flex leave subject to the approval of the OEA. If the OEA considered that operational requirements rendered the taking of flex leave unsuitable, no entitlement arose. It follows that since there was no entitlement to flex leave on 30 November 2006, the directive could not operate to prejudice or injure McCarron in his employment or be deemed to threaten to do so. 55 It is an essential requirement of s 792(1) that the conduct be for a prohibited reason or for reasons that include a prohibited reason. As Greenwood J said at [347] in McIlwain v Ramsey Food Packaging Pty Ltd [2006] FCA 828: 'There must be, therefore, it is said, some demonstrated element of 'singling out' of an employee or if a class of employees is involved, the class must be singled out for special treatment as a class: Health Services Union of Australia v Tasmania (1996) 73 IR 140 per Marshall J; and Maritime Union of Australia v Geraldton Port Authority (supra).'

Similar conclusions were made by Weinberg J in National Union of Workers v Quenos Pty Limited (2001) 108 FCR 90 at [118] where His Honour cites BHP Iron-Ore Pty Ltd v Australian Workers' Union and Others (2000) 102 FCR 97 in relation to s 298K(1) of the unamended Act. In David's Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463 at 500 [106] the Full Court said: 'The objective of s 298K is to ensure the threat of dismissal or discriminatory treatment cannot be used by an employer to destroy or frustrate an employee's right to join an industrial association and to take an active role in that association to promote the industrial interests of both the employee and the association.' In contrast to the circumstances referred to by the Full Court, the directive related to all employees of the OEA and was not directed solely to the members of the CPSU. It did not contain any threat to the working conditions of the employees nor treat them in a discriminatory manner. 56 In Major v State of South Australia [1999] FCA 1684; (1990-2003) 140 IR 29 Marshall J found that the operation of a general administrative instruction which affected the continued employment of the applicant was not conduct which constituted an adverse affection or deterioration of the rights of the applicant under s 298K of the unamended Act. I find that the directive in the present case is analogous to the general administrative instruction considered by Marshall J in Major. Contrary to the submissions of the applicants, I find no error in His Honour's decision. McCarron has not been 'singled out' because of his union membership. It follows that the issue of the directive does not constitute a prohibited reason within s 793(1) of the Act. Summary of Findings 57 For convenience the Court will summarise its findings as follows: 1. The CPSU is not an eligible person within the meaning s 807(4) of the Act because it is not a person affected by the contravention pursuant to s 807(4)(b) of the Act. 2. McCarron had no entitlement to take flex leave on the Day of Protest. The entitlement to leave is dependent upon the OEA approving flex leave subject to its operational requirements. 3. Adequate staffing levels of the OEA constituted the relevant consideration of operational requirements for 30 November 2006. 4. The directive refusing approval for leave requests for 30 November 2006 did not injure McCarron in his employment nor threaten to do so within the meaning contained in s 792(1)(b) of the Act because he had no entitlement to flex leave for that day. 5. The promulgation of the directive does not constitute a prohibited reason within the meaning of s 793(1) of the Act. 58 It follows from the above that the Court is satisfied that there is no serious question to be tried (see Castlemaine Tooheys Limited and Others v The State of South Australia (1986) 161 CLR 148 per Mason J at 153-154) and that the application for an interlocutory inunction must be dismissed. I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Associate: Dated: 24 November 2006 Counsel for the Applicant: C Howell

Solicitor for the Respondent: Australian Government Solicitor