Meaning of DEWR Advice
58 Neither Ms Chaudhury nor Mr Maynard was willing to accept that the DEWR Advice was reasonably open to be understood as advising Agencies that leave should not be made available to a Commonwealth employee who proposed to use the leave to attend the Day of Protest. For the following reasons I conclude that it was open to be understood in this way.
59 First, the terms of the DEWR Advice were apt to convey the message to all but the most analytical minds that the attendance of Commonwealth employees at the Day of Protest would constitute industrial action. The bold heading of the DEWR Advice juxtaposed the phrases 'Proposed Industrial Action' and 'National Community Day of Protest - 15 November' thereby implying that attendance at the Day of Protest would constitute industrial action. This implication was reinforced by paragraph 2 of the advice which asserted, in effect, that failure (ie failure per se, not unauthorised failure) to attend work to participate in the Day of Protest by persons employed by the Commonwealth would constitute 'industrial action' as defined by s 4(1) of the WR Act. The implication was additionally reinforced by paragraph 4(b) of the advice which, by reminding Agencies that 'leave (including access to flextime credits) should not be made available to cover participation in industrial action', suggested that an employee on approved leave from his or her work could nonetheless be participating in industrial action.
60 Secondly, the evidence discloses that at least two of those involved in drafting the DEWR Advice took the view that it advised all Agencies not to grant employees leave for the purpose of taking part in the Day of Protest.
61 As mentioned above, Mr Bennett provided written advice to this effect on 11 November 2005 (see [47] above). I interpolate that, subject to Mr Maynard's evidence that he spoke to Mr Bennett about his advice some days later, there is no evidence of any recipient of Mr Bennett's advice contradicting his understanding of the advice which DEWR had given to Agencies. As mentioned above, Mr Maynard sent Mr Bennett's advice to Mr Pratt, Mr O'Sullivan and Ms Chaudhury without commenting on its content. At approximately the same time Ms Chaudhury sent the advice to Mr Johnson and Mr Negus with the simple message 'FYI and file please'.
62 Craig Johnson, a Team Leader in the Public Sector Branch, Workplace Relations Implementation Group of DEWR, was also involved in the drafting of the DEWR Advice. It seems clear that he had the same understanding of its import as Mr Bennett. In particular, I accept the evidence of Wayne Lodge, who was Manager, Workplace Relations in the ACS in November 2005, that Mr Johnson expressed approval of the terms of a draft response to an application for leave on 15 November 2005 made by the second applicant, Mr McGill. The draft response included the following sentences:
'As I understand it, your request for flex on the 15th is so you can attend the 'National Day of Action' organised by the ACTU.
Therefore your request for a flex day on the 15 November 2005 is denied.'
63 Additionally, Andrew Millett, who in November 2005 was Director of Agency Agreements and Industrial Relations for the ATO, gave evidence that he spoke with Ms Chaudhury before drafting an email for Anne Ellison, First Assistant Commissioner ATO People and Place, to circulate within the ATO. The content of that email is set out in [80] below. I infer that the first paragraph reflects advice given to Mr Millett by Ms Chaudhury.
64 Moreover, for reasons that need not be set out in these reasons for judgment, the Commonwealth formally made the following concessions:
'1. A number of agencies contacted DEWR after the release of APS Advice 06 of 2005 and Non-APS Advice 04 of 2005 ("WR Advice") to seek further advice on the correct interpretation of WR Advice. These included Australian Customs Service, Australian Taxation Office, Department of Education, Science and Training and Department of Veterans' Affairs.
2. In November 2005 DEWR officers within the Workplace Relations Implementation Group were responsible for providing additional advice to agencies in relation to an advice circulated by the Public Sector Branch of DEWR.
3. A number of DEWR officers within the Workplace Relations Implementation Group advised agencies who sought clarification or further advice that the WR Advice meant that leave sought for the purpose of attending the Day of Protest could not be approved. These officers included:
a. Janet Hartmann
b. Marco Spaccavento
c. Laura Andrew
4. A number of agencies were provided with advice that the WR Advice meant that leave sought for the purpose of attend [sic] the Day of Protest could not be approved. These agencies included:
a. Australian Nuclear, Science and Technology Organisation
b. CSIRO
c. Department of Education, Science and Training
d. Australian Industrial Registry
e. Department of Foreign Affairs and Trade
f. Geoscience Australia'
65 Having regard to the above evidence and the concessions made by the Commonwealth, I reject Ms Chaudhury's evidence that the DEWR Advice was unambiguous and accurate and advised Agencies that applications for flex leave for 15 November 2005 should be considered solely in the light of the operational requirements of the agency concerned. Indeed, I find that Ms Chaudhury's evidence was unsatisfactory in many respects. She was unwilling or slow to make appropriate concessions when shown contemporaneous documentary evidence inconsistent with her own evidence. Notwithstanding her consideration of Mr Jones' letter of 10 November 2005 (see [40] above), she claimed not to have understood anyone to be saying that APS employees were being refused leave on the ground that the purpose of the leave was to attend the Day of Protest. She declined to agree with the suggestion that individuals in the various Agencies could reasonably have concluded that the DEWR Advice was telling them that no leave should be granted to anyone to attend the Day of Protest. She was also less than frank in other ways. For example, she was the only witness questioned on the topic who was unwilling to concede that in all probability the majority of people seeking to attend the union organised Day of Protest would be union members. It is unnecessary for me to speculate about why Ms Chaudhury did not give her evidence frankly. It is sufficient to record that, generally speaking, I do not accept her evidence where it is in conflict with other evidence before the Court.
66 I have also concluded that significant aspects of Mr Maynard's evidence should not be accepted. In particular, I do not accept that he failed to appreciate that the amendments initiated by him to the draft advice (see [31]-[32] above) meant that the DEWR Advice was likely to be understood as advising that leave should not be granted to a Commonwealth employee if the leave was sought for the purpose of attending the Day of Protest. Nor do I accept that he was unaware that, in the days leading up to 15 November 2005, at least some Agencies were interpreting the DEWR Advice in that way. It is unnecessary for me to reach a concluded view on whether Mr Maynard sought deliberately to mislead the Court. It is possible that, with the passage of time, Mr Maynard has unconsciously rationalised aspects of his conduct in late October and early November 2005.
67 Having regard to all of the evidence touching on the issue, I am satisfied that on 9 November 2005 Mr Maynard either intended, or was willing to allow, the DEWR Advice to convey the message to Agencies that leave, including flex leave, should not be granted to a Commonwealth employee if the leave was sought for the purpose of attending the Day of Protest. I am also satisfied that Mr Maynard and other senior officers of DEWR became aware shortly after the DEWR Advice was issued that it was being so understood by Agencies and took no steps to clarify its meaning. I have reached these conclusions after giving careful consideration to the language of the DEWR Advice and the following matters.
68 First, despite the measured and courteous tone of Mr Jones' letter of 10 November 2005, no action was apparently taken by anyone in DEWR to check the accuracy of the assertions contained in it or to issue the clarification sought by Mr Jones. Moreover, the response to Mr Jones' letter was in terms that appear calculatedly ambiguous (see [42] above).
69 Secondly, Mr Maynard's request for urgent advice from Mr Bennett in respect of the 'arguments' in the legal advice received by CPSU suggests against the CPSU advice being consistent with the views then held by Mr Maynard. The inference that the views of the law and the construction of the DEWR Advice on which DEWR was acting were those propounded by Mr Bennett in his email of 11 November 2005 (see [47] above) is strengthened by the fact that neither Mr Maynard, nor it would seem any other officer of DEWR, took steps to prevent that email being further circulated within DEWR or to place on record that the accuracy of its contents was not accepted by DEWR (see [49] above). Indeed, Mr Maynard forwarded Mr Bennett's email to Mr Pratt, Mr O'Sullivan and Ms Chaudhury for their information describing it as advice on the 'CPSU's assertions'.
70 Thirdly, it seems likely that Mr O'Sullivan's email of 11 November 2005 (see [50] above) was sent because Mr O'Sullivan had decided to seek legal advice from the AGS concerning the circumstances, if any, in which employees should be allowed to take leave on 15 November 2005. No evidence was led in explanation of the terms of Mr O'Sullivan's email of 14 November 2005 (see [55] above). In the circumstances I am satisfied that what Mr O'Sullivan meant when he said that 'it didn't really matter' was that it didn't really matter that Mr Burmester's advice was not consistent with the view of the law on which DEWR had been proceeding. I am also satisfied that the 'risk' to which the email refers is the risk that the advice of Mr Bennett was inaccurate. It seems likely in the circumstances that the 'more important political considerations' to which Mr O'Sullivan referred were the political dangers inherent in DEWR being seen to be acting in a way calculated to advance the party political interests of the Government rather than in a manner that was consistent with the legal advice of the AGS.