CPSU, The Community and Public Sector Union v Commonwealth of Australia [2007] FCA 1397

CPSU, The Community and Public Sector Union v Commonwealth of Australia [2007] FCA 1397

The DEWR Advice was reasonably open to be understood, and was understood by relevant agencies, as an instruction that leave including flex leave should not be granted to Commonwealth employees who sought leave to attend the Day of Protest. Its circulation created a real risk that CPSU members' leave requests would be assessed by a more restrictive criterion than usual, and that risk eventuated for individual applicants. Because the advice was issued in response to the CPSU campaign and because DEWR officers knew the overwhelming majority of employees wishing to attend would be union members, circulation of the advice contravened s 298K(1) of the Workplace Relations Act 1996 (Cth). The...

Jurisdiction
Australia
Judgment Date
06 September 2007
Procedural Posture
Industrial Law Proceeding Seeking Declarations and Penalties for Alleged Contraventions of Freedom of Association Provisions and Breaches of Certified Agreements / Reasons for Judgment After Hearing; Proceeding Stood Over for Orders Giving Effect to the Reasons and for Submissions on Penalties
Outcome
Applicants succeeded in part: circulation of the DEWR Advice constituted a breach of s 298K(1), agency determinations and individual decisions were not separate freedom of association contraventions, breaches of the ACS Agreement and DEST Agreement were found, and alleged breaches of the ATO Agreement and DVA...
Legal Topics
['freedom of Association' 'workplace Relations Act 1996 (cth) S 298 K(1)' 'prohibited Reasons' 'certified Agreements' 'australian Public Service Leave Arrangements' 'flextime and Annual Leave' 'apolitical Public Service']
['industrial Law' 'employment Law' 'administrative Law'] ['freedom of Association' 'workplace Relations Act 1996 (cth) S 298 K(1)' 'prohibited Reasons' 'certified Agreements' 'australian Public Service Leave Arrangements' 'flextime and Annual Leave' 'apolitical Public Service']

Case Brief

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Procedural Posture

Industrial Law Proceeding Seeking Declarations and Penalties for Alleged Contraventions of Freedom of Association Provisions and Breaches of Certified Agreements / Reasons for Judgment After Hearing; Proceeding Stood Over for Orders Giving Effect to the Reasons and for Submissions on Penalties

Legal Issues

  1. 1 ['Whether the DEWR Advice altered, or threatened to alter, the position of Commonwealth employees who were CPSU members to their prejudice within s 298K(1) of the Workplace Relations Act 1996 (Cth).' 'Whether the DEWR Advice was issued because, or for reasons including that, affected employees were members of an industrial association.' 'Whether determinations by ACS, ATO, DVA and DEST concerning leave for 15 November 2005 constituted separate contraventions of s 298K(1).' "Whether decisions concerning the individual applicants' leave or pay constituted separate contraventions of s 298K(1)." 'Whether the Commonwealth breached the ACS Agreement, ATO Agreement, DVA Agreement or DEST Agreement by refusing or threatening consequences for leave associated with attendance at the Day of Protest.']

Ratio Decidendi

The DEWR Advice was reasonably open to be understood, and was understood by relevant agencies, as an instruction that leave including flex leave should not be granted to Commonwealth employees who sought leave to attend the Day of Protest. Its circulation created a real risk that CPSU members' leave requests would be assessed by a more restrictive criterion than usual, and that risk eventuated for individual applicants. Because the advice was issued in response to the CPSU campaign and because DEWR officers knew the overwhelming majority of employees wishing to attend would be union members, circulation of the advice contravened s 298K(1) of the Workplace Relations Act 1996 (Cth). The...

Court Disposition

Applicants succeeded in part: circulation of the DEWR Advice constituted a breach of s 298K(1), agency determinations and individual decisions were not separate freedom of association contraventions, breaches of the ACS Agreement and DEST Agreement were found, and alleged breaches of the ATO Agreement and DVA...

Orders

  • ['The proceeding be stood over to a date to be fixed for the purpose of making orders giving effect to these reasons and orders as to the penalties, if any, appropriate to be imposed.' 'The parties provide to the Associate to Branson J by 19 September 2007 an agreed minute as to the orders to be made (other than...