CPSU, the Community and Public Sector Union and Anor v Commonwealth of Australia - [2006] FCA 1589 - FCA 2006 case summary — Zoe

CTHFCA

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

[2006] FCA 1589

Federal Court of Australia|2006-11-24|Before: Cowdroy J

View original source

At a glance

Source facts

Court

Federal Court of Australia

Decision date

2006-11-24

Before

Cowdroy J

Source

Original judgment source is linked above.

Judgment (43 paragraphs)

[1]

REASONS FOR JUDGMENT 1 The applicants seek urgent interlocutory injunctions restraining the respondent ('the Commonwealth') from acting upon a direction issued by of one of its departments which prevents the taking of any leave by its employees on 30 November 2006. 2 The first named applicant ('CPSU') and one of its members, the second applicant ('McCarron'), seek declarations that the Commonwealth has breached s 792(1) of the Workplace Relations Act 1996 (Cth)('the Act') by subjecting its employees to a disadvantage in their employment for a reason prohibited under s 793(1)(a) of the Act. The disadvantage relied upon is the directive by the Office of Employment Advocate ('OEA') issued on 18 October 2006 ('the directive') informing its employees that they will not be permitted to take leave to attend the National Day of Union and Community Action ('Day of Protest') to be held on 30 November 2006. Alternatively, a declaration is sought that the Commonwealth breached s 792(1) of the Act by threatening to subject employees to a disadvantage for a reason prohibited under s 793(1)(a) by making and circulating the directive. 3 Alternatively, relief is claimed specifically relating to McCarron. A declaration is sought that the Commonwealth breached s 792(1) of the Act in that it injured McCarron in his employment and altered his position to his prejudice for a reason prohibited under s 793(1)(a) of the Act in that it prevented him from having access to flex leave or the opportunity to utilise flex leave provisions on the Day of Protest. Alternatively, a declaration is sought that the Commonwealth breached s 792(1) of the Act, in that it threatened to injure McCarron in his employment or alter his position to his prejudice for a reason prohibited under s 793(1)(a) of the Act in that it prevented him from having access to flex leave or the opportunity to have access to flex leave provisions on the Day of Protest. Additionally, a declaration is sought that the Commonwealth breached clause 28 of the Australian Workplace Agreement relating to McCarron's employment with the Commonwealth by reason of the OEA's refusal to grant access to flex leave provisions to McCarron for the Day of Protest. Consequential orders imposing penalties are sought. 4 The applicant now seeks by way of interlocutory relief an order that the Commonwealth be restrained from refusing or revoking applications for flex leave or annual leave made by employees engaged in the OEA for reasons other than genuine operational requirements and that until further order, every application for flex leave or annual leave made by employees of the OEA be assessed in accordance with the procedures established under the OEA Flexible Working Arrangements Policy by determining the genuine operational requirements of each work group without reference to or regard to the directive.

[12]

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

[24]

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.'

[27]

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.

[33]

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.'

[41]

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.

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

At a glance

Court

Decision date

Before

Source

Judgment (43 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (20)

Cited By (1)