Australian Municipal, Administrative, Clerical and Services Union v Commissioner of Taxation - [2022] FCA 1225

FEDERAL COURT OF AUSTRALIA
Australian Municipal, Administrative, Clerical and Services Union v Commissioner of Taxation [2022] FCA 1225

File number: NSD 1288 of 2020

Judgment of: JAGOT J

Date of judgment: 14 October 2022

Catchwords: INDUSTRIAL LAW — where union alleged circumvention and breach of enterprise agreement (EA) and misrepresentations as to workplace rights arising from work from home arrangements implemented during COVID-19 pandemic — where temporary work from home arrangements provided additional flexibility rather than overriding pre-existing arrangements — EA arrangements still available during pandemic — no misrepresentation of workplace rights nor contravention of EA — proceeding dismissed

Legislation:
Fair Work Act 2009 (Cth) ss 12, 14, 50, 338(2)(b), 340(1), 341(1), 341(2)(k), 342(1), 345, 360, 361, 550, 793, 795

Fair Work Regulations 2009 (Cth) reg 6.09, sch 6.3

Public Service Act 1999 (Cth) ss 7, 13(5), 20(1), 24(1A), 24(3)

Taxation Administration Act 1953 (Cth) ss 4A(1)–(2), 8(1)

Australian Taxation Office (ATO) Enterprise Agreement 2017

Cases cited:
Australian Building and Construction Commissioner v McDermott (No 2) [2017] FCA 797; (2017) 252 FCR 393

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Adelaide Airport Case) [2021] FCA 951

Australian Education Union v Royal Melbourne Institute of Technology [2018] FCA 1985

Australian Licensed Aircraft Engineers Association v Qantas Airways Limited [2022] FCAFC 50; (2022) 314 IR 231

Australian Red Cross Society v Queensland Nurses’ Union of Employees [2019] FCAFC 215; (2019) 273 FCR 332

Campomar Sociedad, Limitada v Nike International Limited [2000] HCA 12; (2000) 202 CLR 45

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation [2017] FCA 1091

Community and Public Sector Union v Telstra Corporation Limited [2001] FCA 267; (2001) 107 FCR 93

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25; (2015) 230 FCR 298

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2017] FCAFC 50

Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Limited (No 2) [2017] FCA 1046; (2017) 69 AILR ¶102–860

Construction, Forestry, Mining and Energy Union v State of Victoria [2013] FCA 445; (2013) 302 ALR 1

Hanley v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2000] FCA 1188; (2000) 100 FCR 530

Health Services Union v Ballarat Health Services [2011] FCA 1256

James Cook University v Ridd [2020] FCAFC 123; (2020) 278 FCR 566

Klein v Metropolitan Fire and Emergency Services Board [2012] FCA 1402; (2012) 208 FCR 178

National Tertiary Education Union v La Trobe University [2015] FCAFC 142; (2015) 254 IR 238

OneKey Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union [2018] FCAFC 77; (2018) 262 FCR 527

Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44; (1982) 149 CLR 191

Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) [1998] HCA 30; (1998) 195 CLR 1

Qantas Airways Ltd v Transport Workers’ Union of Australia [2022] FCAFC 71; (2022) 402 ALR 1

R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday; Ex parte Sullivan [1938] HCA 44; (1938) 60 CLR 601

R v Khazaal [2012] HCA 26; (2012) 246 CLR 601

Retail and Fast Food Workers Union Incorporated v Tantex Holdings Pty Ltd [2020] FCA 1258; (2020) 299 IR 56

Squires v Flight Stewards Association of Australia [1982] FCA 171; (1982) 2 IR 155

Taco Company of Australia Inc v Taco Bell Pty Ltd [1982] FCA 170; (1982) 42 ALR 177

Walsh v Greater Metropolitan Cemeteries Trust (No 2) [2014] FCA 456; (2014) 243 IR 468

WorkPac Pty Ltd v Skene [2018] FCAFC 131; (2018) 264 FCR 536

Yorke v Lucas [1985] HCA 65; (1985) 158 CLR 661

Division: Fair Work

Registry: New South Wales

National Practice Area: Employment and Industrial Relations

Number of paragraphs: 495

Date of hearing: 15–18 March, 17 June 2022

Counsel for the Applicant: Mr M Harding SC and Mr Y Bakri

Solicitor for the Applicant: Gordon Legal

Counsel for the Respondents: Mr P O’Grady QC, Dr L Hilly and Ms M Salinger

Solicitor for the Respondents: Kingston Reid

ORDERS

NSD 1288 of 2020

BETWEEN:
AUSTRALIAN MUNICIPAL, ADMINISTRATIVE, CLERICAL AND SERVICES UNION

Applicant

AND:
COMMISSIONER OF TAXATION

First Respondent

COMMONWEALTH OF AUSTRALIA

Second Respondent

JEREMY GEALE (and others named in the Schedule)

Third Respondent

ORDER MADE BY:

JAGOT J

DATE OF ORDER:

14 OCTOBER 2022

THE COURT ORDERS THAT:
1.The proceeding be dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
JAGOT J:
1. OVERVIEW

In this proceeding the applicant, the Australian Municipal, Administrative, Clerical and Services Union (the ASU), seeks declarations that the respondents, the Commissioner of Taxation, the Commonwealth, and certain officers of the Australian Taxation Office (the ATO), contravened various provisions of the Fair Work Act 2009 (Cth) (the FW Act) by their conduct in implementing work from home arrangements for Commonwealth employees in the ATO during the COVID-19 pandemic.
In particular, it is alleged that by their actions to facilitate work from home arrangements, particularly in response to the initial phase of the pandemic in early 2020, the respondents (all or some, depending on the alleged contravention) contravened: (a) cll 8.1(a)–(b) and 50 of the Australian Taxation Office (ATO) Enterprise Agreement 2017 (the EA or the Agreement) and thereby s 50 of the FW Act which provides that a person must not contravene a term of an enterprise agreement and is a civil remedy provision, (b) s 340(1) of the FW Act, by taking adverse action, or threatening to take adverse action, against ongoing and non-ongoing employees of Commonwealth covered by the EA in the ATO, and (c) s 345(1) of the FW Act, by knowingly or recklessly making false or misleading representations about workplace rights of Commonwealth employees in the ATO. The ASU seeks pecuniary penalties for the contraventions to be paid to it. The issue of penalties was deferred for separate consideration after the determination of the alleged contraventions.
In short, the EA included a “Working at home” provision, cl 50, which provided (amongst other things) that a formal work from home arrangement could be agreed between the ATO and an employee which was able to be terminated by agreement or on four weeks’ notice. The EA also included a provision, cl 8, which required the ATO to consult with employees for a reasonable period (which should be at least two weeks) before “developing a new policy or guideline that relates to the provisions of this Agreement” or “changing an existing policy or guideline that relates to the provisions of this Agreement, where that change is significant or substantial”. The ATO adopted a work from home response to the pandemic which sought to enable large numbers of its employees to work from home but, in so doing, the ATO did not require the arrangements to comply with cl 50 including the provision enabling termination by agreement or on four weeks’ notice. This is the genesis of all of the allegations against the respondents.
I conclude that the ASU’s case must be rejected for the reasons given below.
2. FACTS
The material facts were mostly not in dispute.
2.1 The Australian Taxation Office (ATO) Enterprise Agreement 2017
The EA will be explained in greater detail later in these reasons. For present purposes, it is sufficient to record that cl 50 relates to working from home. Amongst other things, cl 50 provides that a formal working at home arrangement may be entered into or varied by agreement between the ATO and an employee when it is suitable for both the employee and ATO, provided that ATO operational requirements can continue to be met. Further, a “formal working at home arrangement is to be reached that… can be terminated by agreement or on four weeks’ notice”.
2.2 The ASU
The ASU is an employee organisation and industrial association as defined in s 12 of the FW Act.
The ASU is covered by the EA and entitled to represent the industrial interests of employees covered by the EA.
2.3 The Commissioner
The Commissioner is the Agency Head of the ATO, a Statutory Agency, in which the employees covered by the EA are employed. Section 7 of the Public Service Act 1999 (Cth) (the PS Act) defines a “Statutory Agency” to mean a body or group of persons declared by a law of the Commonwealth to be a Statutory Agency for the purposes of that Act. By s 4A(1)–(2) of the Taxation Administration Act 1953 (Cth) (the TA Act) the “staff necessary to assist the Commissioner are to be persons engaged under the” PS Act and the “Commissioner and the APS [Australian Public Service] employees assisting the Commissioner together constitute a Statutory Agency”.
By s 20(1) of the PS Act, the Commissioner “on behalf of the Commonwealth, has all the rights, duties and powers of an employer in respect of APS employees in the Agency”. By s 8(1) of the TA Act, the Commissioner also may, by writing, delegate to a Deputy Commissioner or any other person all or any of the Commissioner’s powers or functions under the PS Act other than the power of delegation. The public sector provisions in s 795 of the FW Act also apply so that (with reg 6.09 and item 2 of Sch 6.3 of the Fair Work Regulations 2009 (Cth)), the Commissioner is the employing authority of the APS employees.
In these reasons, I use “ATO” as a shorthand to reflect the fact that there is a Statutory Agency under these arrangements.
2.4 The Commonwealth
The Commonwealth is a constitutionally-covered entity and a national system employer under ss 338(2)(b) and 14(1) respectively of the FW Act, and is covered by the EA.
2.5 The other respondents
Up to 1 August 2020, Jeremy Geale (Deputy Commissioner for Review and Dispute Resolution in the ATO) was a member of the Executive Committee of the ATO, Chief COVID Response Officer for the ATO, and chair of the ATO’s COVID-19 Steering Committee. At all material times Mr Geale held delegations from the Commissioner under cl 50 of the EA.
Jacqui Curtis (Chief Operating Officer (COO) of the ATO) was a member of the Executive Committee of the ATO, the co-chair of the ATO’s COVID-19 Steering Committee, Chief Operating Officer of the ATO and the Head of the APS HR Professional Stream.
Jeremy Moore was an Assistant Commissioner for Workplace Relations in ATO People. He reported to Bradley Chapman.
Mr Chapman was a Deputy Commissioner, the head of ATO People, a delegate of the Commissioner in relation to cl 50 of the EA, and a member of the ATO’s COVID-19 Steering Committee. He reported to Ms Curtis.
2.6 The ATO
On 30 June 2020, there were a total of 21,184 ATO employees. Of this total, 17,320 were ongoing employees, 313 were non-ongoing, and 3,551 were casual. Of the total number of ongoing employees, 223 were SES graded employees who were excluded from coverage under the EA.
2.7 The then existing policy – Working at home policy
The ATO had a Working at home policy at all times. This policy was made in association with cl 50 of the EA and, before 9 April 2020, said:
What you need to know
Ÿ A working at home arrangement must be approved by your manager
Ÿ This can be either an ad hoc or formal arrangement
Ÿ Work Health Safety (WHS) and security arrangements must be discussed with your manager before working at home
Ÿ Formal arrangements apply for a maximum period of 12 months and require a written agreement
Ÿ Legislation, ATO policies and the ATO Enterprise Agreement (EA) provisions continue to apply to employees working at home
Ÿ The Working at home FAQs provides a printable reference sheet for employees and managers.
The Working at home policy also said:
Working at home arrangement
Working at home is a provision in the EA, where employees can arrange to work at home. The working at home arrangement has to be suitable for you and the ATO. Working at home can be either an ad hoc or formal arrangement.
This policy does not apply to contingent workers/contractors.
Eligibility
To be eligible to enter into a working from home arrangement, you must be an ongoing or non-ongoing employee who is covered by the EA.
Eligibility to enter into an arrangement is subject to ATO operational requirements continuing to be met.
Irregular or intermittent employees who wish to enter into a flexible work arrangement should refer to the Flexible work practices overview for more information.
Formal working at home arrangements
Applying for a formal arrangement to work at home
The EA provides for formal working at home arrangements where the employee and their manager agree on a regular pattern of days/hours each week to be worked at home.
The instructions below can be used for new applications or renewing existing applications.
What you need to do
1.Discuss your proposal with your manager
2.Submit the Working at home agreement to your manager for approval via email. The application form covers:
Ÿthe period of the arrangement – a maximum of 12 months at a time
Ÿwritten agreement on the matters discussed with your manager, as prescribed in the EA.
3.Any other arrangements that need to be agreed to facilitate working at home can also be recorded in the application form or in another suitable manner – for example, by email or in Compass
4.Once the application is completed and approved by your manager, submit the form to the People Helpline via People Connect (instructions below). You and your manager should keep copies. No further action is required by the manager once the request has been submitted.
…
Approval of your arrangement will be subject to operational requirements. This includes an assessment of your proposal against both individual and team workloads.
If your application is not approved, your manager will discuss the reasons with you, then provide you with written confirmation.
If you do not agree with the decision, you should try to resolve your concerns by discussing them with your manager. Review procedures apply to these decisions.
Considering a formal working at home application
Managers and above hold the delegation to make decisions about working at home. If the employee:
Ÿ is on a graduated return to work, their case manager must be consulted
Ÿ provides satisfactory documentation advising working at home arrangements should be implemented for medical reasons, contact the People Helpline for advice about engaging/seeking support from ATO People (PST/Working Well team).
When approached by an employee to enter into a formal working at home arrangement, managers must:
1.        Consider the impact of the arrangement against the:
Ÿneed to continue to meet ATO operational requirements
Ÿeffect the arrangement will have on individual workloads and the team as a whole
Ÿappropriateness of the employee’s role
Ÿemployee’s performance and conduct
Ÿavailability of equipment – the employee already has the necessary IT equipment at their home, or are eligible for ATO-issued equipment
Ÿavailability of non-IT equipment – Refer to Provision of equipment for non IT equipment considerations
Ÿemployee’s personal circumstances and need
2.        Discuss with the employee, and seek agreement on:
Ÿsecurity requirements
Ÿhealth and safety requirements
Ÿthe provision of equipment
Ÿongoing communication and contact with other team members
Ÿaccess by management to the home site (in the event this becomes necessary)
Ÿamounts of time to be spent at home and the office
Ÿthe method of recording working time and of measuring work performance
Ÿaccess to training and development opportunities.
3.        Record the agreement in the working at home agreement
4.        Make a decision following the Good decision-making model.
If you decide not to approve an application, it must be for a valid business reason related to clause 50 of the EA and/or this policy. You must:
Ÿ discuss your decision with the employee, and
Ÿ follow up with reasons in writing.
Working at home should not be approved as a substitute for regular caring arrangements.
…
Terminating an arrangement
Your arrangement may be terminated:
Ÿ at any time, by mutual agreement
Ÿ by either you or your manager giving four weeks’ notice because of:
changing operational requirements, and/or
inefficiency or ineffectiveness of the arrangement
Ÿ without notice, if you fail to comply with agreed working at home arrangements.
…
Suspending an arrangement
An arrangement may be suspended on a short-term basis due to operational requirements. If this is necessary:
Ÿ the ATO will give you as much notice as possible (at least one week’s notice, unless you agree to less)
Ÿ any hardship will be taken into account in the suspension decision
Ÿ the suspension will not exceed eight weeks, unless you agree to a longer period
Ÿ your previous arrangements will be reinstated at the end of the suspension.
...
Work health and safety considerations
The below checklist will assist you and your manager to discuss health and safety issues related to working at home.
Both ad hoc and formal applications require written agreement that these requirements are met.
Work health and safety checklist
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Ad hoc working at home arrangements
The EA provides for ad hoc periods of working at home for short periods to be approved on a case-by-case basis. This may include working at home while suffering from a minor illness or injury, or providing minor care for another person, but not if Personal leave is more appropriate.
Working at home may be considered ad hoc if not undertaken on a regular basis and there is no formal agreement by the ATO to work at home on a defined or a set number of days.
Ad hoc arrangements require manager approval.
…
The Working at home policy associated with cl 50 of the EA also contained a section as follows (emphasis added):
Responsibilities
Employee responsibilities
Relevant legislation, the EA, and ATO policies continue to apply to you when you are working at home.
When working at home, you are required to:
Ÿ comply with your working at home arrangement
Ÿ advise your manager of any change in your circumstances relevant to your working at home arrangement
Ÿ record your attendance and absences as required in TMS and mySAP Services and/or any other recording system agreed with your manager. If you want to, you can select the ‘home’ work option in TMS for the hours worked at home
Ÿ comply with relevant leave provisions, including the arrangements for notifying an unscheduled absence
Ÿ be accountable for your work performance and productivity
Ÿ secure ATO information and assets
Ÿ maintain regular and open communication with your manager and colleagues
Ÿ attend the workplace when requested by your manager.
2.8 The COVID-19 pandemic
There was no issue between the parties that, by March 2020, Australia was impacted by the COVID-19 pandemic.
2.8.1All staff communications
The ATO initiated pandemic communication emails to all staff including the following on 17 March 2020:
COVID-19 – latest update
All staff
We are writing to update you on the various measures the ATO is deploying to protect your welfare and your fellow staff, and ensure an effective response to the COVID-19 outbreak.
We would ask that you please read the information below, and stay informed of the latest information and developments during this extraordinary and disruptive time.
…
Advice on meetings and gatherings
We are implementing the following measures:
Ÿ Physical meetings of more than 10 people will require managerial approval to proceed.
Ÿ Avoid having any non-essential visitors to ATO sites.
…
We recommend all staff refer to social distancing or health alert on the Department of Health website for more information.
Streamlining reporting to People Helpline
We have two new forms in People Connect for managers to report on any staff who are self-isolating or have a confirmed COVID-19 test. At this point we are fortunate that we have no confirmed cases of COVID-19 amongst ATO staff, but we are taking this step to ensure we are prepared moving forward.
You can find more information on the process in our FAQs.
Advice on working from home arrangements
We are investigating various solutions to ensure working from home arrangements in the current situation are appropriate and able to support a larger number of staff.
A pilot is about to commence on a technical solution to expand our ability to work from home. At this time, working from home is only available to people who are at most risk, are required to self-isolate, have caring responsibilities, who have approved working from home arrangements or those participating in the pilot. This position is being reviewed daily as we test new technology to support staff to work from home.

On 18 March 2020, the all staff email included (emphasis in original):
COVID-19 – working from home arrangements and welfare of staff most at risk
All staff
Working from home
As the COVID-19 outbreak continues to unfold, the safety of all ATO employees will continue to be our utmost priority and we are working to implement practical and sensible solutions.
We are currently running a pilot of an IT solution enabling staff to work from home. An initial phase of the trial involving around 500 staff was rolled out today. We will be progressively expanding this in the coming days.
To assist in the expansion of this pilot it is essential that you do not turn off your computer when you leave the office to go home.
As the pilot expands we will contact you with further instructions.
In the meantime, staff who are not in critical roles and do not have working from home arrangements in place should not be using the ATO’s Virtual Desktop Platform (VDP).
Identifying staff most at risk
While there are currently limits on the number of people we can accommodate working from home, today we are calling on any staff who may fall into a higher risk category to identify themselves to their managers.
Where possible and appropriate, we are encouraging those in higher risk categories to explore options to work from home, regardless of whether they currently have remote access.
…
Advice for managers
As always, the health and welfare of your team members is paramount and we encourage you to take an active role in assisting staff at higher risk from COVID-19.
We are continuing to investigate various solutions to expand the capacity of our working from home connectivity solutions and hope to provide broader access in the near future.
Before implementing a work from home arrangement you will need to ensure you have recorded important information about the agreed arrangements. At a minimum, this will include:
Ÿ A contact number (preferably mobile) and email address for the staff member
Ÿ The address where the staff member is working from
Ÿ Any health or safety issues which might arise from working at home
Ÿ Working hours
Ÿ What work will be conducted and deadlines for delivery
Ÿ Established ‘check-in’ intervals.
On 20 March 2020, the all staff email included:
Working from home survey
We are asking all staff to complete this Working from home ATO staff survey by the end of today (Friday, 20 March 2020), to understand your access to personal devices.
The survey takes approximately one minute to complete.
Your participation will help us deliver a range of working from home solutions as quickly as possible. Your responses will be kept anonymous and only aggregated data will be reported.
Working from home requirements
We know that working from home may be an uncommon situation for some staff.
We would like to remind you that staff working remotely have the same obligations under the Public Service Act and ATO Enterprise Agreement 2017 as they do when in the office. The APS Values, Employment Principles and Code of Conduct continue to apply as usual.
You will also need to record your actual times of commencing and ceasing duty in TMS (and/or any other required recording system for your business area) as you usually would. Unless agreed otherwise with your manager your regular work hours will still be within bandwidth (usually 7am to 7pm).
And of course, all relevant leave provisions, including notifying unplanned leave and having pre-approval for planned leave, will still apply. We ask all staff to process leave requests as early as possible (leave applications can be applied for and processed using the staff app).
If you have any queries regarding your individual requirements when working from home, please speak with your manager.
On 23 March 2020, the all staff email was sent from Mr Geale and included a video and an associated transcript. The email said:
As part of my role as one of the leads of our COVID-19 response team, I have recorded a video update (transcript available at the link) to share the latest advice with you.
In the video I cover the recent developments following the announcements last night from the ACT, NSW and Victorian governments, and talk about our current priorities.
It’s possible that some staff will be asked to work from home at some point and we are preparing for that possibility now.
Please familiarise yourself with the new Working from home guide to help you get ready for this possibility.
There will be an all staff email coming soon with more information about the Remote Desktop Access (RDA) solution to allow more staff to work from home, including the details of a YamJam where you can ask your questions about RDA and working from home. At this time, we are not asking staff to work from home using the new solution unless you are already involved in one of the pilots that we are running.
We will continue to update you throughout the day. In the meantime you can find the latest news and resources on myATO at COVID-19, and on Yammer at Live staff updates.
Thank you all for your patience and understanding as the situation continues to evolve.
This information is current at 23 March 2020.
On 25 March 2020, the all staff email said:
We are committed to keeping you up-to-date with the latest advice and information regarding the COVID-19 outbreak and the ATO’s response.
The ATO provides an essential service and our ability to continue to support our nation at this critical time depends upon your ongoing support and attendance.
Advice from the Prime Minister
As many of you will have seen, last night the Prime Minister confirmed that all public servants provide essential services. Further details of his announcement can be found here. At this time we are all fortunate enough to have jobs and the opportunity to help our nation at a time at which it needs us most. We can provide the support our community needs, but it is going to require the contribution of absolutely everyone. The contribution of our front line staff has never been more important. You are the face and voice of the ATO.
The Prime Minister also announced that if you can work from home you should.
Over the past two weeks we have developed and tested solutions aimed at enabling the majority of our employees to work from home, including Service Delivery staff in call centres or performing processing work.
…
Preparations to work from home
Today, business lines will be working with the staff, using the Working From Home Guide and guiding principles below, to identify staff who are immediately able to perform work from home. There will be many staff who are not yet in a position to work from home, however in the near future we will be taking steps to equip these people with the technology and resources to enable them to work from home. This will include the final testing of the telephony pilot and roll-out of equipment to enable call centre staff to work from home.
We know not everyone has the technology at home to enable them to work from home immediately. We have reserves of equipment and more on order to arrive later this week. Based on the questionnaires people have completed we will commence allocating this equipment, initially giving priority to people in critical roles, including our front-line staff.
For people who need to be in the office, or do not wish to work from home, we will be continuing to make that as safe and easy as possible. We will ensure provisions to support social distancing, cleaning and hygiene are well maintained, and we will look to provide support such as parking to minimise the use of public transport.
As we roll out working from home there are going to be hiccups and it is going to take us time to learn to adapt to this new way of working. We ask for patience and perseverance at this time. Do not give up, as our nation depends on your service at this time.
Guiding principles
Ÿ There is currently no directive for staff to work from home, however we are encouraging staff to work from home, where they can adequately perform their work from home. Working from home is a voluntary arrangement. Separate business continuity arrangements apply if the workplace is unavailable.
Ÿ During the COVID-19 pandemic response, where business can be delivered effectively through work from home arrangements, this should be supported where the Work From Home policy requirements can be met as it enables greater social distancing of those required to work in the office, and reduced demand on workplace resources.
Ÿ Where a whole business unit cannot support working from home arrangements due to operational requirements, this will be communicated to affected staff.
Ÿ Decisions should consider potential future employee shifts/ reallocation that may be required to support priority ATO deliverables.
A further all staff email on 25 March 2020 from the Commissioner said:
…
Following further announcements from the Prime Minister yesterday, this morning you would have seen an email advising you to prepare for the possibility of working from home.
We are, without a doubt, an essential service, and the Prime Minister confirmed this in his address yesterday. But we also need to be flexible and adaptable, and adjust our ways of working to ensure we can maintain services for our clients. We continue to deliver the Government’s economic stimulus measures, and meeting our core purpose of administering the tax and super systems also remains of crucial importance.
…
In his address the Prime Minister encouraged Australians to work from home where possible. In line with this advice we are now looking to transition a greater number of staff to working from home arrangements. This follows progress of a number of IT solutions we have been working on, including the Remote Desktop Access pilot and enable Service Delivery staff to work from home.
Your health and that of your colleagues is, of course, of paramount importance. We are making every effort to support those who will transition to working from home, and also those remaining in the office.
The important work of the ATO to ensure our society keeps functioning will not stop.
…
All staff communications continued as required.
By July 2020, the ATO’s all staff communication informed employees that, amongst other things:
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 (EA).
2.8.2Executive Committee and COVID-19 Response Committee
In the background to these all staff communications, the Executive Committee of the ATO had been meeting about “Coronavirus: Government & ATO Pandemic Plan update” since at least 13 March 2020.
The minutes of the ATO Executive Committee meeting on 13 March 2020 record:
Staffing impacts
1.To date there have been no confirmed cases of Coronavirus within the ATO. 30 ATO staff have been required to self-isolate…
…
3.Generally feedback indicated that staff were calm, however this has been impacted by the World Health Organisation’s release of the pandemic rating yesterday…
..
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Agenda item 3: Whole of Government (WoG)
32.The APS-wide COO committee is coordinating a whole of government response and reporting back to the Secretaries’ Working Group. The committee is coordinating media and communications, with daily circulars and a portal to be established through the APSC.
The minutes of the ATO Executive Committee meeting on 16 March 2020 record:
COVID19 ATO Preparations
…
2. National COVID19 cases expected to escalate significantly this week.
…
Key focus areas
6.Business continuity plans, health and welfare of staff, resourcing need to be in place and actionable and people are clear about who works from home. This includes prioritising who has access to the IT working from home, key roles and acting plans for illness and isolation.
…
Remote working
9. Capacity to enable 1400 concurrent vdp accesses…
10.Alex Adams working on RDP – remote desktop platform, testing this and looking promising and will be unconstrained in terms of the numbers. Test will be undertaken asap on scale capacity.
11.Further work needed on identifying priority work and who are the priority people that need access to be able to work in this flexible way.
The ATO COVID19 Response Committee meeting minutes of 17 March 2020 record:
…
2. The Committee discussed the concerns their staff had raised regarding COVID19 and the ATO’s response, noting:
Ÿ there was an increasing trend of staff self-selecting to work from home (WFH) even when they are not sick, which is putting pressure on the ATO’s Virtual Digital Platform (VDP) licences
Ÿ work is underway to identify the priority work and people across the ATO so that the limited VDP licences can be distributed to them
Ÿ staff have differing circumstances that might be influencing their decisions to stay at home, e.g. they are a carer for a vulnerable individual and want to mitigate their risks
Ÿ staff concerns included
Ÿthe inability to control the cleanliness of travel to and from work
Ÿbeing forced into close proximity to other individuals in site elevators…
Ÿwhat will be expected of them if schools close and they are required to stay home for child care
Ÿbeing ostracised by other staff if they come to work whilst they are suffering from hay fever or other non-COVID19 related sinus issues. This would need to be addressed in the staff FAQs.
The ATO COVID19 Response Committee meeting minutes of 18 March 2020 record:
1.Chair Jeremy Geale thanked all the attendees noting the priorities for the 18 march included:
Ÿ determine a viable working from home (WFH) solution, noting:
Ÿthe IT solution pilots were underway…
The ATO COVID19 Response Committee meeting minutes of 19 March 2020 record:
1.Chair Jeremy Geale thanked all the attendees noting the priorities for the 19 March included:
…
Ÿ continued exploration of support options for staff to work from home (WFH) e.g. calling retailers in regards to purchasing laptops/desktops for staff who not have technology at home
…
Ÿscheduling workshops to explore:
Ÿcatastrophic scenarios e.g. continuing to provide essential services if the ATO had to implement a lock down…
The minutes of the ATO Executive Committee meeting of 19 March 2020 record:
Remote working
1.The trial of the remote desktop solution to support working from home will be expanded to another 800–1000 staff to test at scale
2.1650 additional laptops have been procured as a solution for staff that do not have access to a home device; the total number of ATO-owned devices will be 6,000.
3.This will significantly increase the ATO’s capacity to maintain critical functions.
4.The gap between the number of people who can currently work from home with their own technology and those that will require ATO technology will be needed; this view should also include peripherals.
The ATO COVID19 Steering Committee meeting minutes of 20 March 2020 record:
…
Ÿ Noted:
…
Ÿthe IT WFH solution is being extended again today
6.        A/g Chief Finance Officer (CFO) Janine Bristow advised her team:
Ÿ have sourced 1,600 laptops that could be redistributed to staff who do not have their own device
Ÿ are sourcing computer monitors and exploring the possibility of sourcing keyboards/mice if required.
7.Chair Geale noted there would be an all survey issued this morning (20 March) that would aid in identifying the staff who have the technology capability to WFH and who would require ATO resources to enable this.
…
8.      DC David Diment advised:
Ÿ yesterday (19 March) a workshop was held to regarding [sic] the scenario of the Government directing individuals to not go into work being issued over the weekend (21/22 March)
…
WFH – Staff Expectations confirmation and communications
Deputy Commissioner Brad Chapman to ensure staff are made aware of the expectations of them relating to the WFH including awareness that:
Ÿ it is a short-term response to address the unprecedented situation and not an ongoing new standard
…
11.      COO Curtis advised:
Ÿ the IDC COO group:
Ÿwould be exploring today (20 March) whether agencies can direct staff to either come to work or WFH, noting members would be advised of the outcomes of this meeting
Ÿcontinue to explore a variety of ongoing issues specifically how to address privacy and WFH
Ÿ a COO meeting for the Treasury portfolio was meeting today (20 March) and an update would be provide [sic] to members.
The minutes of the ATO Executive Committee meeting of 23 March 2020 record:
Remote working
1. Piloting of the Remote Desktop solution is continuing.
2. All staff have received the working from home pack.
…
COO committee/APSC Update
…
7. In NSW and the ACT, the APS is considered essential services, school will support attendance during school days …
…
Staff
…
12.A video was sent to staff in the ACT, NSW and Victoria, built around themes, being the ATO’s first priority of health, safety and well-being of our staff, the continued provision of essential services to the community, and preparing staff to work from home.
The minutes of the ATO COVID19 Response Committee meeting of 24 March 2020 record:
1.Chair Jeremy Geale thanked everyone for the work they have been doing and noted:
…
Ÿ staff should be focusing on determining how ATO will ensure the running of its essential services over the coming week rather than trying to look several months ahead
…
Ÿ Today’s (24 March) focus was on:
Ÿthe working from home (WFH) pilot and gathering materials, support and guidance to assist this
Ÿ clarification of the ATO’s critical functions list
Ÿidentifying the capacity for staff to be redeployed across the ATO or the broader Australian Public Service (APS)
…
Ÿ 2,000 laptops and 2,000 monitors have been sourced and his team are working with Business Continuity Management (BCM) to ensure they are allocated to those in critical functions
…
4.Chair Geale advised:
Ÿ that Assistant Commissioner (AC) Misha Kaur was leading a staff questionnaire that aims to identify the additional IT needs that would enable WFH for staff…
…
WFH Solution messages to staff – ATO policy to continue to come to work
Deputy Commissioner Brad Chapman to work with Assistant Commissioner Katherine Philp to develop some all staff messages that would:
Ÿrestate the ATO policy position for staff to come to work (unless they have a WFH arrangement in place)
Ÿnote that there has not been a Governmental Directive to WFH.
The minutes of the ATO Executive Committee meeting of 24 March 2020 record:
Remote working
1.Scaling the pilot of the Remote Desktop continuing. Focus is on getting frontline staff WFH capability and capacity.
…
COO committee/APSC Update
7.Agencies need to be consistent in their application of WFH.
…
The ATO Executive Committee and COVID19 Response Committee continued to meet as required.
2.8.3Internal ATO communications
Internal ATO communications include an email of 20 March 2020 to certain ATO officers including Mr Chapman and Christopher Gyetvay (Assistant Commissioner, Staff Experience in the ATO), (and thereafter Mr Moore) saying:
…
Background
As you may be aware, Jeremy Geale has requested myself and David Diment to coordinate and oversee a range of actions related to COVID-19 as it affects the ATO workforce and increasing our capacity to operate remotely.
A key action is the development of a central “Work From Home Guide” suite of materials that will enable people to work remotely and maintain productivity and the ability to deliver quality outcomes to our clients. This will be available for all ATO staff, including a component specific to the Contact Centre.
This email is to keep you informed of this, including key people from your teams we are working with on this.
Current Progress
We are currently consolidating this work to develop a user-friendly pack containing tools and guidance to support all our staff to successfully and productively work from home that will be completed by COB Monday 23 March. This will provide guidance for staff in all business lines, including more specialised advice for those working in contact centres as well as managers.

On 24 March 2020, Mr Chapman (and other ATO officers) was sent the (then) current version of the WFH Guide and an email saying:
Guiding Principles:
Ÿ There is currently no directive for staff to work from home. Working from home is a voluntary arrangement. Separate business continuity arrangements apply if the workplace is unavailable.
Ÿ During the Covid-19 pandemic response, where business can be delivered effectively through work from home arrangements, this should be supported where the Work From Home policy requirements can be met (as it enables greater social distancing of those required to work in the office, and reduced demand on workplace resources)
Ÿ Where a whole business unit cannot support working from arrangements due to operational requirements, this will be communicated to affected staff.
Ÿ Decisions should consider potential future employee shifts/ reallocation that may be required to support priority ATO deliverables.
Changes to our current FAQs (and adjustments to relevant supporting docs) as follows:
Our 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. To be clear, there is currently no directive for staff to work from home. The ATO provides an essential service and our ability to continue to support our nation at this critical time depends upon your ongoing support and attendance.
Where business can be delivered effectively through interim work from home arrangements, this should be supported where individuals meet policy requirements. Managers should consider (a) where current business processes can be supported and can be delivered effectively, and (b) employee requirements as outlined in the working from home guide (including access to the equipment required to do your job). ATO employees must not work from home without prior approval. Working from home arrangements may include a requirement to attend some days in the office, and/or (where required) the application of relevant leave (e.g. partial caring requirements). Arrangements may be reviewed at manager discretion or where business requirements change.
Discussions and approved arrangements should be made/ reviewed as a priority for employees who are:
-         at most risk
-         required to self-isolate
-         unable to attend work due to caring responsibilities
-         who have prior approved working from home arrangements.
If these circumstances apply to you, discuss your circumstances with your manager as soon as practicable.
Where the above requirements do not apply and employees wish to work from home, the working from home guide should be used for discussions and preparations with your manager. It is expected that the interim arrangements you put in place to work from home should allow you to be productive, with some reasonable adjustment as required. Where this is not possible, managers have discretion to not agree to work from home requests.
All employees should follow the work from home guide to ensure they are prepared for an unexpected office closure.
Mr Chapman sent the following email to Mr Geale and Ms Curtis on 24 March 2020:
…
As you know we are getting lots of questions regarding whether people should be working from home now. Below are some principles that my team developed to try and clarify what we want people to do regarding remote working in the immediate term that we hope will clarify things for our managers[.] Are you comfortable with the principles and tone…
Mr Geale and Ms Curtis agreed with the proposed principles and tone also on 24 March 2020.
In another email on 24 March 2020, Mr Chapman wrote to Mr Moore, Mr Gyetvay, Anne Blaseotto (Director of Employee Relations at the ATO, who reported to Mr Moore) and Craig Skinner (Director of Workplace Adjustment and Remuneration at the ATO) the following:
Thanks – can you also confirm whether we believe these new WFH checklists that we’re getting everyone to do would be considered a formal working from home agreement? And what we may have in them to clarify that they do not constitute that.
Mr Gyetvay responded on 24 March 2020 saying:
I think we need to review all comms and the WFH guide to include wording similar to the email to Jeremy Geale today – i.e. specifying that these apply ‘During the period of the COVID‐19 response’ and are ‘approved interim WFH arrangements’– i.e. they are NOT formal work from home agreements.
…
Mr Skinner responded on 24 March 2020 saying:
John and I will review this in detail to ensure we have it covered.
Our initial thoughts are:
Ÿ WFH arrangements are still voluntary.
Ÿ If sites are closed, the APSC circular provides the guidance required for people who cannot WFH.
Ÿ The ATO does not have to agree with an agreement, even if it is could be considered a formal agreement.
Ÿ The EA does not specify that we must cover expenses – the delegate may do so.
Ÿ It is clearly outlined in the COVID19 response document that these are exceptional circumstances.
Ÿ The purpose of the checklist is to enable identification of minimum safety and security matters and it’s clear that a positive response for each item is not required for people to WFH.
Ÿ We may need to adjust some language, and may need further advice on the requirements of clause 50 of the EA.
Mr Gyetvay emailed Mr Skinner, Ms Blaseotto and others on 24 March 2020 saying:
Below is a proposed change to the application of the WFH approach (we don’’t have formal ATO Exec endorsement yet, but indications below are positive).
Note that we would like to update all COVID-19 comms, FAQs, WFH guide etc to specify/ label this WFH advice to apply ‘during the covid-19 pandemic response’, and as ‘approved interim WFH arrangements’– and not refer to them as formal working from home arrangements. Could you please look at your respective areas of accountability and adjust accordingly (but maintaining alignment with each other).
There are also several aspects of the changed FAQ wording below that are likely to need related updates – e.g:
…
Ÿ ATO employees must not work from home without prior approval. – there is some confusion at present that if people participated in the RDA pilots – they can just work from home as required/ desired. Others are just assuming they can work from home.
Ÿ Working from home arrangements may include a requirement to attend some days in the office, and/or (where required) the application of relevant leave (e.g. partial caring requirements). Note [sic] sure if our guides are as overt about this. We probably also need some clarification of the carers leave instructions – e.g. we used to say if you are caring you are not working, but depending on the age of kids if their school is closed – we should clarify that partial misc leave can apply for the hours they can’t work (not all or nothing, as negotiated with their manager).
Ÿ Arrangements may be reviewed at manager discretion or where business requirements change – This is one of the areas that would differ to the EA ‘formal working from home agreement’ clauses – hence we need to position it differently as a response to the crisis.
Ÿ It is expected that the interim arrangements you put in place to work from home should allow you to be productive, with some reasonable adjustment as required. Where this is not possible, managers have discretion to not agree to work from home requests. – This is intended for voluntary arrangements where they have no barrier to attending the workplace, to indicate that large reasonable adjustments are unlikely to be approved unless in business interests, including significantly reduced productivity and/or expensive ergo equipment being provided. May need to crosscheck against other documents for consistency.
Can you please proceed with preparing for these (and any other foreseeable) changes to our materials, ready for release tomorrow including an updated FAQ and possibly mention in the all staff update.
On 25 March 2020, Mr Moore emailed Mr Skinner, Mr Gyetvay, Mr Chapman and Ms Blaseotto saying:
Only other thoughts overnight are:
Ÿ Do 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.
Ÿ Do we want to weave into the messaging that if staff are unable to work at home we will look for opportunities to provide meaningful work in other agencies. In order to make staff understand that if they are unable or unwilling to work at home miscellaneous leave is not guaranteed)
That same day, Mr Skinner responded to Mr Moore’s email saying:
I am going to, as a priority this morning:
Ÿ Update the opening information on the checklist to include key points from my and your emails below, with an emphasis that it is about understanding what needs to occur for safe and secure working from home, and determine if other working arrangements are required (as per APSC circular)
Ÿ Remove the word agreement from the Manager Confirmation and agreement
Ÿ Provide some key messages/language for Chris G’s team and Comms can ensure are throughout the documents
Ÿ Be clear it is only required to be kept by manager and employee (not submitted).
2.8.4Work from Home (WFH) Guide
On 23 March 2020, the Commissioner published to employees a “Working from Home COVID-19 Response” guide (the WFH Guide). This Guide said:
These are exceptional circumstances.
We are experiencing an unprecedented period of disruption due to COVID-19. But our role in the community remains critical to maintaining economic and social wellbeing of Australians.
It’s important that our people are able to serve the public, while practicing the recommended social distancing.
This guide is intended to help you transition into a work from home situation in order to continue to serve the public.
…
Rapid Response Work from home approach
Be prepared for rapid response in case of an immediate site shutdown
…
What to do in case of an immediate site shutdown
It’s possible that sites may be shut down at short notice.
Use this decision tree to help guide your next steps in setting up a work from home arrangement quickly.
Everyone will need to pull together in an emergency. You can help by setting up as best you can to be productive, secure and safe; and by staying connected to the latest information on myATO.
…
Rapid Response
Work From Home Checklist
…
COVID-19
Work from home approach
(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.
…
Working from home when your site is still open
During 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.
…
Employee Responsibilities
Relevant legislation, the EA, and ATO policies continue to apply to you when you are working at home.
When working at home, you are required to:
Ÿ Comply with your working at home arrangement.
Ÿ Advise you manager of any change in your circumstances relevant to your working at home arrangement.
Ÿ Record your attendance and absences as required in TMS and mySAP Services and/or any other recording system agreed with your manager. If you want to, you can select the ‘home’ work option in TMS for the hours worked at home.
Ÿ Comply with relevant leave provisions, including the arrangements for notifying an unscheduled absence.
Ÿ Be accountable for your work performance and productivity.
Ÿ Secure ATO information and assets.
Ÿ Maintain regular and open communication with your manager and colleagues.
Ÿ Attend the workplace when requested by your manager where appropriate and possible to do so.
COVID-19 Work From Home Checklist & Agreement
*Not every item in the checklist needs a positive response to agree to a working from home arrangement. If a response is ‘no’, discuss with your manger [sic] how the issue can be sensibly mitigated or managed.
…
Manager Confirmation & Agreement
Manager Confirmation
Have you discussed the checklist details with the employee?
Are you satisfied that the employee can maintain productivity, security and health and safety working at home? Please provide any relevant comments below.
Subsequent versions of the WFH Guide issued from 2 April 2020 contained this:
These are exceptional circumstances
We are experiencing an unprecedented period of disruption due to COVID-19. But our role in the community remains critical to maintaining economic and social wellbeing of Australians.
It’s important that we are able to serve the public, while practicing the recommended social distancing.
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.
If you are unable to work from home during the COVID-19 response, discuss with your manager what arrangements would need to be made to enable you to do so.
If you remain unable to work from home during the COVID-19 response and your site is not open, discuss your working arrangements with your manager.
They also contained this restated section:
COVID-19 work from home checklist
This checklist guides you and your manager to consider suitable productivity, security and safety matters for you to work from home during the COVID-19 response.
….
Not every item in the checklist needs a positive response to work from home. Discuss with your manager how any issues can be sensibly mitigated or managed.
A copy of the completed checklist and confirmation should be kept by the manager and employee. They do not need to be submitted to the People Helpline.
…
The 9 April 2020 version of the WFH Guide said:
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 …
The 6 July 2020 version of the WFH Guide said:
Can you perform your work at home?
As the ATO implements our COVID-19 safe workplace transition plan, we will be welcoming more staff to return to the office when your site eases restrictions. When a site changes its restriction level, we will let you know.
…
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.
Versions of this WFH Guide were issued thereafter between 24 March 2020 and 14 December 2020.
2.9 Dealings with the ASU
On 3 March 2020, Jeffrey Lapidos (Branch Secretary of the Taxation Officers’ Branch of the ASU) and Ms Curtis exchanged communications. Ms Curtis’s email said that the ATO was making plans to deal with the pandemic to enable staff to work safely including from home where possible and to reduce risks.
On 11 March 2020, Mr Chapman emailed Mr Lapidos saying that the ATO’s response to the pandemic would evolve and be guided by the latest advice from the Department of Health and the expectations of the government. The email said that the ATO was currently able to support a proportion of its employees working from home and would continue to allocate the available VDP (virtual desktop platform) licences to those who needed them most (that is, to enable working from home). The email thanked Mr Lapidos for his concern and said that the ATO would have further updates shortly that could be discussed at the National Consultative Forum (the NCF).
On 13 March 2020, Ms Blaseotto sent an email to Mr Lapidos with the subject heading “Meetings re COVID-19” to invite the ASU to set up twice weekly meetings with Mr Moore and Ms Blaseotto. The email said:
We would like to set up meetings with you twice weekly to provide you updates on our response to the COVID-19 pandemic. I was thinking that potentially Tuesdays and Thursdays might work subject to your availability – unless you want one on a Friday to round up the week.
Can you please let me know if you would like twice weekly updates and what days/times would suit you.
Ms Blaseotto sent the same email to the Community and Public Sector Union (the CPSU). The ASU did not respond. The CPSU apparently did respond and twice weekly meetings with the CPSU started on 17 March 2020.
On 16 March 2020, Mr Lapidos sent an email to the Commissioner with the subject heading “Concern at inadequate response to pandemic”. The email said that the ATO “has not complied with its obligations under the Work Health and Safety Act 2011 in response to the COVID-19 pandemic”. The email suggested discussions, perhaps with Deputy Commissioner David Diment, to resolve the ASU’s concerns. The email also said:
Rapid expansion of working from home
The ATO needs to make working from home available, in the first instance and as a matter of priority, at the request of those employees who are most vulnerable to the virus because of their health, pregnancy or age or if they have members of their immediate family or for whom they have a caring responsibility, who are vulnerable. The ATO should then make available working from home arrangements to other employees who request this. The reduced numbers of staff at work will reduce the risk of transmission of the virus at work, on public transport and other common areas that ATO staff are likely to frequent.
Ms Blaseotto responded on the same day, 16 March 2020, referring to her 13 March 2020 email to which she had received no response and asking if Mr Lapidos could please let her know when he was available to meet and Ms Blaseotto would co-ordinate the meeting.
On 17 March 2020, Mr Chapman also responded to Mr Lapidos. This email said, in part:
You have raised a number of issues in your letter and staff emails which we are considering and would be happy to discuss with you at the twice-weekly meetings that we have been attempting to arrange with you since last week. I agree some of your suggestions have merit… Regular meetings with Assistant Commissioner Jeremy Moore, who is a key part of our policy development and business continuity meetings, are a key and productive way for you to provide input that is more beneficial to your members and ATO staff generally.
Earlier today Jeremy met with the CPSU, who have engaged with our offer. I would suggest that, if you avail yourself of similar opportunities, they may alleviate some of your misconceptions and place you in a better [position] to communicate to your members with greater accuracy.
On 18 March 2020, Ms Blaseotto emailed Mr Lapidos the pandemic information and guidance that the ATO had distributed to employees. The email said:
Attached for your information are the communications that have [been] issued this week to staff and managers about COVID-19. Also attached are the key documents that are linked in the communications.
Please let me know if you have any questions or would like to discuss the ATO response to COVID-19.
On Sunday 22 March 2020, Mr Moore emailed Mr Lapidos saying:
Sorry about the weekend email however, you would be aware of the announcements today in regards to widespread shutdowns, particularly in NSW and Victoria.
These measures will obviously impact several ATO sites.
We are currently planning to ensure that we have as few staff in ATO sites as possible on Tuesday morning and moving forward.
We want to be in a [position] to announce these to staff tomorrow morning and were keen to alert you to these plans.
Can you please advise if you are free to attend a telephone hook-up with Jeremy Geale and Brad Chapman, this evening, and I will organise the appropriate invitation. Can you please also advise anyone else you would like included in the invitation.

On 23 March 2020, Ms Blaseotto emailed Mr Lapidos the latest communications to employees and the WFH Guide. She emailed him again later that day with a further communication to employees.
On 23 March 2020, Mr Lapidos circulated a document to ASU members from the ATO saying:
The ATO asked the ASU to a telephone conference with Jeremy Geale (co-chair of COVID Response Committee) and Brad Chapman of ATO People at 7.45pm yesterday evening, Sunday, 22 March 2020. The reason we were given was the ATO wanted to have as few staff in ATO sites because of the announcements by State Governments in NSW and Victoria yesterday afternoon. The ATO wanted to alert us to their plans. Jeremy Geale confirmed they had a phone conference with the CPSU before us. This discussion occurred before the Prime Minister’s announcements late yesterday evening.
Brad Chapman introduced the discussion by saying the ASU would be aware that the ATO has been preparing its response to the pandemic to make sure it can manage the health and safety of its staff.
Jeremy Geale’s briefing
Jeremey [sic] Geale commenced by briefing us about what is likely to happen today and asked for our views in response. Jeremy referred to the NSW, Victorian and ACT Governments yesterday limiting non-essential services. The ATO intends to have a significant proportion of its workforce working from home from Tuesday. The Office is working on what it considers are ‘essential services’. The ATO had sent text messages to all staff to come to work today, unless they have existing work from home arrangements or are on leave. Today is to be spent making arrangements for staff to work from home. Jeremy and/or Jacqui Curtis will provide a video message to all staff about the ATO’s plans, with advice about what to do, what working from home entails, and what equipment you should take home with you. …
…
ASU’s response to Jeremy Geale
The ASU told Jeremy we were aware of the updates the ATO had been issuing to its staff. We received them from our members before we received them from the Office. We were not aware of any ATO planning to protect the health and safety of its staff. We said the ATO had not consulted with us, despite their obligation to do so under the Work Health and Safety Act 2011. We said Commissioner Jordan’s announcement to all staff last Thursday afternoon said the ATO had a comprehensive plan to deal with the pandemic. We had no knowledge of this plan. The ASU had written to Commissioner Jordan last Monday about our concerns. We said we would hold the Office to account for its failure to comply with its statutory obligations. The ASU said the ATO cannot legally compel its staff to work from home. Some staff are not in a position to work from home for a variety of reasons…
…
And then
Jeremy said we had some really valid concerns. These were the type of issues the Office wanted to discuss with us.
Jeremy had seen our letter to the Commissioner so he was aware of many of our concerns. But the Office was looking for our support to ensure everyone’s welfare is looked after, while the Office continues delivering for Australia.
The ASU responded that we can’t work with the Office unless it is prepared to consult and negotiate with us at an appropriately senior level. We need to see the Office put arrangements in place for the future, otherwise we will hold the Office to account for its past and future failures.
Jeremy said his commitment to us is to work with us. He said the Office needs our support. He said the Office would work with us to achieve those objectives. He said he would get back to us today.
The ASU asked for detail about the ATO’s announcements to staff today. Some may be prepared to work from home, some may not be able to work from home.
Jeremy said the Office would have regard to everyone’s individual circumstances. The Office would try to ensure that everyone has work to do from home.
The ASU said we would have to advise our members this morning of their legal rights and the ATO’s obligations about working from home. We asked Jeremy about Thursday and Friday.
Jeremy did not know. He said the circumstances were changing very quickly. Our phone conference concluded.
…
Mr Lapidos circulated another document to ASU members on 24 March 2020 saying:
…
This report addresses many of the issues in setting up working from home arrangements. See clause 50 of the ATO Enterprise Agreement.
If you have been working from home and you have systems issues
…
When you have approval to work from home all the rules in the ATO Enterprise Agreement, in the Public Service Act and in ATO policies continue to apply [50.4].... The ATO cannot terminate a formal working from home arrangement, except with four weeks notice [50.2 d)]. The ATO can terminate a working from home arrangement without notice, but only if you breach the agreed arrangements, which should be in writing. Please report to us if your manager persists to say you need to take some of your personal, annual or flex leave if your systems access fails or is irregular, runs too slowly to be effective. We will take the issue up with the Office. As always, we are prepared to take issues to the Fair Work Commission for resolution if necessary. But these rules are clear, and we do not expect the Office to disagree with us about this type of situation. However, we advise you to keep notes of any systems difficulties you experience and report them, preferably on a daily basis to your team leader.
Do not spend money on setting up suitable equipment etc for you to be able to work from home – without the ATO’s prior agreement
If the ATO asks you to work from home, or even if you ask to be able to work from home, it is the ATO’s responsibility to ensure that you have a place at your home that will be suitable and meet your health and safety needs for you to work there. Working from home arrangements could easily last 6 to 12 months or even longer as a result of the current crisis. We are in a difficult situation. The ATO Enterprise Agreement provides for the ATO to meet all or part of the cost of establishing work from home arrangements…
…
We support the Office, the Office needs to support us
We are doing the ATO and the people of Australia a favour, perhaps it is more than that, doing our best to support our nation in a time of crisis, by agreeing to work from home. The ATO cannot compel us to work from home. If the ATO cannot provide the facilities for us to work at its premises, then the ATO has to pay us our full salary anyway. When you see this in context, it is not too much to expect the ATO to pay for you to establish suitable working arrangements at home. If you recently bought equipment, such as an ergonomic chair or anything else you thought you would need to be able to work from home, then you should keep the receipt. You should seek reimbursement for the cost of such equipment as part of establishing a working from home arrangement.
…
On 25 March 2020, Mr Moore emailed Mr Lapidos. The email said:
In order to allow employees the maximum flexibility, to balance their work and other obligations, we [are] in the process of preparing simple guidance for managers about how employees may structure their work hours, within the current Enterprise Agreement provisions and without reverting to exceptional measures (eg. payment of penalty rates, putting Individual Flexibility Arrangements in place, etc).
We have extracted what we believe are the most relevant provisions from the EA (on which we will base our guidance) and would appreciate any feedback you have. As this is a work in progress we would appreciate any feedback you have by COB 26 March 2020.
On 26, 27, and 31 March 2020, Ms Blaseotto forwarded Mr Lapidos the latest ATO advice that had been sent to all staff.
On 31 March 2020, Mr Chapman emailed Mr Lapidos saying:
Thank you for agreeing to catch-up last evening to discuss how we might be able to work together.
As discussed below is a proposed set of arrangements to try and more productively work together as we progress into these very unusual times.
I proposed that, at least for the coming weeks, Assistant Commissioner’s Jeremy Moore and Christ Gyetvay will schedule two opportunities a week to discuss recent developments in relation to our response to COVID-19, future plans and issue resolution. These discussions would provide a great opportunity to provide feedback, raise issues or concerns with key decisions makers who will be able to take action where appropriate or talk through and explore issues and differing perspectives on issues. Between them, Jeremy and Chris have accountability for, and leadership of, employment policy matters, occupational health and safety and various staff support materials that form part of our response to COVID-19. In addition, as key members so [sic] of the ATO People Exec and the ATO’s senior leadership group they have reach into the organisation where things fall outside the scope of their direct teams.
Where possible I intend to make myself available for some or all of one of these meetings so I too can hear items that may be of concern to our staff / your members. On occasion I also expect that ATO Executive members Jacqui Curtis and Jeremy Geale may be available as well – though I expect this will be more challenging given the calls on their time.
As discussed, particularly in light of the time commitment required, my preference would be to engage in these discussions jointly with the ASU and the CPSU. These meetings with the CPSU have proven useful to date with a range of matters already explored – I would like to ensure that you and your members have equal opportunity to do the same.
I see these meetings as a key opportunity for the ATO to test potential directions with the unions and for you to put forward the views, concerns, feedback etc. of your members (on matters tabled by the ATO and on others you feel you need to raise).
Overall I don’t want unnecessary disputation as I don’t feel it is aiding our staff or bringing about as timely a resolution of issues as we can achieve through regular open dialogue.
I’d appreciate your consideration of this approach and look forward to hearing back from your [sic].
On 31 March 2020, Mr Lapidos and Ms Blaseotto exchanged emails on certain amendments to the WFH Guide. One focus was on the costs of working from home and tax claims for those costs. The amendments Ms Blaseotto proposed to the WFH Guide were as follows:
During our COVID-19 response, you may negotiate working from home arrangements with your manager depending on available equipment and operational priorities. A checklist is provided with this Guide to ensure you set up suitable arrangements with your manager about security and health and safety requirements, your office set up and working arrangements.
Please refer to the APSC advice on claiming expenses related to working at home on your income tax return.
Working from home during the COVID-19 response is voluntary and temporary and any interim working from home arrangements established during the COVID-19 response supersede existing working from home agreements.
You are covered by the same employment conditions when working from home as when working in the office.
Your current regular hours agreement, part time hours agreement, rostered hours or default hours will apply in the same way as when you work in the office.
You are entitled to access flextime in the same way when working from home as when working in the office.
You must uphold the APS Values and Code of Conduct and security protocols whilst working from home.
If you are unable to work from home during the COVID-19 response, and are unable to work from the office, discuss your working arrangements with your manager.
Mr Lapidos suggested that the WFH Guide be amended by including paragraphs saying:
During our COVID-19 response, you may negotiate a formal working from home arrangement with your manager.
It should address any security or health and safety requirements that may be needed;
Be in writing, setting out any relevant conditions and arrangements;
Must outline arrangements for the cost of establishing your working from home arrangement; and
Note that the arrangement can be terminated by agreement or on four weeks’ notice.
You are covered by the same employment conditions when working from home as when working at the office.
So your current regular hours agreement, part time hours agreement, rostered hours or default hours will apply in the same way as when you cease working from your site.
You are entitled to access flextime in the same way when working from home as when working at your site.
On 1 April 2020, Ms Blaseotto emailed Mr Lapidos saying:
I just wanted to let you know that we have had to make some changes to the agreed wording to reflect that some states have made it clear that if you can work from home you should. So the update is as follows.
The email then included amended extracts from the WFH Guide including:
Working from home when your site is still open
During our COVID-19 response, if you can work from home you should do ~~so you may negotiate working from home arrangements with your manager depending on available equipment and operational priorities~~. A checklist is provided with this guide to ensure you set up suitable arrangements with your manager about security, health and safety requirements, your office set up, and working arrangements.
Working from home during the COVID-19 response is ~~voluntary and~~ temporary. Any interim working from home arrangements established during the COVID-19 response supersede existing working from home agreements.
You are covered by the same employment conditions when working from home as when working in the office. This includes your current regular hours agreement, part-time hours agreement, rostered hours or default hours will apply in the same way as when you work in the office.
You are also entitled to access flextime in the same way when working from home as when working in the office.
You must uphold the APS Values and Code of Conduct and security protocols and security protocols whilst working from home.
If you are unable to work from home during the COVID-19 response, and are unable to work from the office, discuss your working arrangements with your manager.
On 2 April 2020, Ms Blaseotto emailed Mr Lapidos the latest employee information and amended WFH Guide, as well as related information.
On 3 April 2020, Ms Blaseotto and Mr Lapidos exchanged emails. Ms Blaseotto asked Mr Lapidos if he wished to set up a meeting as suggested in Mr Chapman’s email of 31 March 2020. Mr Lapidos said he would, but queried the attendees at the meeting from the ATO. Ms Blaseotto responded saying the ATO attendees would be Mr Moore and Mr Gyetvay with Mr Chapman, Mr Geale and Ms Curtis if they were available. Mr Lapidos then emailed saying:
I am concerned we may be at cross purposes in relation to the meeting you are seeking to arrange, Anne.
We are preparing a response to Brad’s email to me on 31 March. I expect to provide Brad with a written response on Monday. My understanding is that Brad’s proposal was made to put arrangements in place to improve co-operation between the ASU and the ATO about the ATO’s response to the pandemic. As I understand it, Brad’s email had nothing to do with the ASU’s letters/emails to the Commissioner, which were issued in accordance with section 80 of the Work Health and Safety Act 2011.
I need the ATO to clarify for the ASU whether the proposed meeting is to be convened in accordance with section 81 of the Work Health and Safety Act 2011. I also need confirmation that the CPSU will not be invited to the meeting. If the ATO’s intention is to convene the meeting in accordance with section 81, we would want the date and time to be arranged so as to be convenient for an inspector from Comcare to join the discussion, if Comcare agrees to agree to our request that it appoints an inspector for this purpose.
Please let me know the ATO’s position.
On 3 April 2020, Mr Moore wrote to Mr Lapidos about a number of matters including the 2 April 2020 amendments to the WFH Guide.
On 6 April 2020, Mr Moore emailed Mr Lapidos saying:
… Anne’s email was following up from Brad Chapman’s email of 31 March where he proposed to schedule a “two opportunities a week” to discuss recent developments in relation to our response to COVID-19, future plans and any issues that any party may have. This offer (which has been on the table for several weeks) is not in response to your application to the CEO of Comcare of 2 April 2020…
…
Our offer to meet with you to discuss COVID-19 related issues predates you [sic] application to Comcare and more importantly is not limited to WHS matters. I was hoping to take the opportunity to respond to some of the questions you had raised in varied previous correspondence which also predates your application to Comcare.
As you would understand – the situation has been evolving rapidly and we have been responding to the requirements of the Australian Government, various state and territory jurisdictions and APS guidance. In these circumstances most employers, regulators and peak bodies have determined traditional timeframes and formulaic process driven consultation and decision making frameworks are not practicable and could put lives at risk in this quickly changing environment.
I am happy to meet with you separately to the CPSU – however obviously we would look to prioritising the attendance of Jeremy Geale, Jacqui Curtis and Brad Chapman when we have the opportunity to brief all parties in one session. I should note that the discussions we have been having for some weeks with the CPSU are not limited to WHS issues – we have discussed and taken feedback on issues including staff leave arrangements, responding to the state’s schooling and childcare announcements, the workload associated with recent Government stimulus package announcements, staff movements within and out of the ATO, performance and future development of IT solutions for working from home, options for further flexibility in working hours and work arrangements and many others. Where the CPSU have questions we are unable to answer, during these meetings, we generally provide short responses (out of session) before the next meeting.
Jeff – on a personal note I am not sure of where to next. We have been reaching out, in good faith, to engage with you. However, it is hard to understand how you want to be involved in this rapidly moving environment when you refuse offers to be part of the discussions at the time when the decisions are being made.
As always the offer of regular meetings, to discuss any concerns you have and for us to tell you what we are considering remains open. However, if you would prefer we did not engage further until we have a formal response [from] Comcare it would be appreciated if you could make that clear.
On 6 April 2020, Mr Lapidos emailed Mr Moore in reply saying:
…
We propose the following informal arrangements be put in place to deal with the ATO’s response to the COVID-19 pandemic. However the ASU would reserve our rights to deal with any issue through formal mechanisms if we consider it necessary.
Informal arrangements
1.Briefings by Jeremy Geale, Jacqui Curtis and Brad Chapman: The ASU is prepared to join these along with the CPSU. Amelia and I would join by telephone. Ancel would prefer to join by telepresence if this is available.
2.Twice weekly discussions: We accept your proposal that we meet with you without the CPSU. We would welcome you being joined by any other ATO representative you consider appropriate. We propose these occur by phone conference.
…
Formal mechanisms for resolutions of disputes
1.WHS dispute resolution: The ASU is concerned the ATO has not yet proposed any arrangement for resolution of the issues the ASU raised with Commissioner Jordan on 16 March or on 25 March. The ASU is prepared to discuss these concerns with anyone from the ATO who meets the requirements of section 80 (2) of the Work Health and Safety Act 2011. The ATO should not delay these discussions to obtain the outcome of Comcare’s decision about appointing an inspector in response to our request of 2 April 2020.
2.Other issues of concern: The ASU will notify the Office in writing if we need to deal with any issues through formal mechanisms.

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:
…
Ÿ attend the workplace when requested by your manager.
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.
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.
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.
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.
5. STATUS OF WFH GUIDE ARRANGEMENTS
One of the ASU’s arguments is that the arrangements into which managers entered with Mr Powell, Ms Baker, Ms Furner, Mr Northend, Mr Miller, Mr Kielbicki and Mr Peterson respectively under the WFH Guide, were formal working from home arrangements under cl 50 of the EA.
The steps in this argument are:
(1)the evident purpose of cl 50.1 of the EA is to permit working at home by an employee when this is suitable for both the employee and the ATO;
(2)the proviso that ATO operational requirements can continue to be met does not limit suitability. The very flexibility of the criterion is the corollary of an agreed arrangement and tells in favour of a broad and beneficial construction of the clause;
(3)cl 50 is situated amongst other clauses that grant a range of flexibilities and contemplate consensual agreement making between an individual employee and their manager as the process by which they are effectuated;
(4)the industrial purpose of cl 50.1 is easily discernible as a form of flexible working that may be deployed in a variety of ways and in an unlimited range of circumstances;
(5)Mr Chapman gave evidence that the matters that a manager was required to consider for the purposes of an arrangement under the WFH Guide were relevant to those that applied to a formal arrangement;
(6)the questions posed by the WFH Checklist that the employees completed addressed the suitability, operational viability, security and health and safety requirements for each of the employees if they were to work at home. These are the matters relevant to, and determinative of, the arrangement referred to by cl 50.1;
(7)employee safety and wellbeing, as well as ATO flexibility, are expressly intended by the makers of the agreement to underpin cl 50.1;
(8)the existence of a formal arrangement is sustained by the objective evidence of what was done by the individual employees and their managers to obtain a suitable arrangement according to a process and upon criteria that corresponds with cl 50.1. This is so even if cl 50.1 is viewed as merely one way for an ATO employee to procure an arrangement to work at home;
(9)in this context, whatever the ATO meant by using the labels “interim” or “temporary” to describe the WFH Guide, they are not determinative; and
(10)the Court should find that the arrangements with these employees constituted a formal arrangement within the meaning of cl 50.1.
The ASU then submitted that the condition in the WFH Guide that an employee attend an ATO workplace requirement if required by their manager “collided” with the requirements of cll 50.2(d) and 50.9 of the EA respectively. According to the ASU, by including a requirement in the arrangements under the WFH Guide that employees “[a]ttend the workplace when requested by your manager where appropriate and possible to do so”, the ATO “proposed to act in the future inconsistently with rights that attach to the formal arrangements the seven employees had” and thereby threatened contraventions of s 50 of the FW Act.
These contentions are necessarily alternatives to the main thrust of the ASU’s case, but have not been pleaded as such. As the respondents pointed out:
(a)First, it is said that, by entering a working from home arrangement in accordance with the terms of the WFH Guide, the ATO and each of seven named individual Relevant Employees made a Clause 50.1 Agreement.
(b)Secondly, it is said that, by making and promulgating the WFH Guide, the ATO took adverse action for proscribed reasons associated with a desire to avoid making Clause 50.1 Agreements, indeed to prevent Relevant Employees (including the seven named individuals) from making a Clause 50.1 Agreement.
(c)Which is it? It cannot be both. The inconsistent positions have not been pleaded in the alternative. If the resulting work from home agreement is a Clause 50.1 Agreement, there can be no adverse action as alleged. If the resulting work from home agreement is not a Clause 50.1 Agreement, there is no contravention of the ATO Enterprise Agreement as alleged. If they are in the alternative, which alternative does the ASU say the court should find?
In any event, I do not accept the ASU’s contentions. It is not possible to dissect the arrangements entered into under the WFH Guide into: (a) parts that resemble a formal working from home arrangement under cl 50 of the EA and use those parts to assert that the arrangements entered into under the WFH Guide should be characterised as formal working from home arrangements under cl 50, and (b) parts that are inconsistent with a formal working from home arrangement under cl 50 of the EA and use those parts to assert a threatened contravention of cl 50 of the EA. That is not a legitimate process of legal or factual characterisation of the status of the arrangements entered into under the WFH Guide.
Dealing with the ASU’s contentions in the same order as set out above:
(1)the evident purpose of cl 50.1 is to enable an employee to request permission from their manager/delegate to work from home and for the manager/delegate to be able to approve such a request when it is suitable for the both the employee and ATO, provided ATO operational requirements can continue to be met;
(2)the proviso that ATO operational requirements can continue to be met does limit suitability from the ATO’s perspective. If the ATO’s operational requirements cannot continue to be met, then the employee working from home could not be suitable for the ATO;
(3)the requirement to attend the office in the Working at home policy associated with cl 50 of the EA is part and parcel of the formal arrangement. It secures the continued satisfaction of the proviso that the ATO operational requirements can continue to be met. It does not involve any suspension or termination of the arrangement;
(4)cl 50 is situated among provisions which, amongst other things, enable an employee to request or seek agreement on a range of matters giving the employee greater flexibility in respect of their work;
(5)the industrial purpose of cl 50.1 is discernible as a potential exception to the EA’s “default setting” of employees working from the office for which an employee could seek approval from their manager/delegate, with the overriding requirement to such approval being that ATO operational requirements could continue to be met;
(6)Mr Chapman’s evidence was that some matters in the WFH Guide had been taken from the Working at home policy associated with cl 50 such as IT equipment and security, protection of sensitive ATO information, and ensuring employees remained productive;
(7)the matters identified by the ASU in contention (6) are not “determinative” of an arrangement referred to by cl 50. The manager/delegate would be able to take into account other matters such as the capacity to agree the costs of the arrangement under cll 50.2(c) and 50.6, as well as the impact on other employees of any such arrangement under cl 50 of the EA;
(8)the essential underpinning of cl 50 of the EA is not employee safety but “the importance of an appropriate balance between working and personal lives” as recognised in cl 43.1;
(9)I agree that the existence of a formal arrangement under cl 50 is to be determined objectively. In the present case, the objective evidence is intractable. The ATO established a pandemic response, one part of which was to facilitate a rapid transition to working from home for as many employees as possible. That response was not subject to cl 50 of the EA. The arrangements to be entered into under that response did not constitute arrangements under cl 50 of the EA because they did not involve application of either that clause or the associated Working at home policy, and were on terms different from such arrangements under cl 50 of the EA, in particular in respect of notice of termination and suspension, but also duration (as arrangements under cl 50 were generally for a fixed term not exceeding 12 months pursuant to the Working at home policy whereas arrangements under the ATO’s pandemic response were interim and temporary and of indeterminate duration);
(10)even if not determinative, the labels “interim” or “temporary” to describe the WFH Guide are relevant; and
(11)I disagree that the arrangements with the seven employees constituted a formal arrangement within the meaning of cl 50.1.
It follows from these conclusions that the circumstances relating to Mr Powell being directed on 22 April 2020 by email to return to the office did not constitute a breach of cl 50 of the EA. Nor did subsequent circumstances in which Mr Powell was required to attend the office for training and then required to attend the office generally.
6. FALSE OR MISLEADING REPRESENTATIONS
6.1 Overview
As noted, s 345(1)(a) of the FW Act provides that “a person must not knowingly or recklessly make a false or misleading representation about the workplace rights of another person”.
The alleged knowing or reckless false or misleading representations on which the ASU relies are:
(1)the “WFH Cessation Statement” in the WFH Guide (“[w]hen working at home, you are required to:… [a]ttend the workplace when requested by a manager where appropriate and possible to do so”);
(2)the “Unilateral Termination Representation” in the WFH Guide (“interim working from home arrangements confirmed during the COVID-19 response supersede any pre-existing working from home agreements”); and
(3)the “ATO Intention Representation” (Mr Moore’s 13 May 2020 letter to Mr Lapidos that the “ATO does not consider this arrangement to be a working from home arrangement as envisaged under clause 50.1 of the EA”).
It follows from my other conclusions that the only alleged false or misleading representation about the workplace rights of another person that could possibly arise in this case is the alleged “Unilateral Termination Representation” in the WFH Guide.
6.2 Principles
The applicable principles were not in dispute.
In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation [2017] FCA 1091 Mortimer J said:
(1)“[o]ne apparently consistent principle is that the particular group to whom the representations are alleged to be directed must be identified”: [197];
(2)“[i]n s 345 [of the FW Act], it is clear the Parliament has sought to restrict contraventions to circumstances where a mental element, or particular state of mind, is present” (that is, the knowing or reckless elements): [224];
(3)“the FW Act is, through s 345, intending to protect the rights the FW Act itself gives to workers, and ensure that no person (whether employer or anyone else) misleads workers about what rights they have under the FW Act”: [250]; and
(4)“the word “about” in s 345 means “in relation to” or “concerning”: that is, it contemplates some degree of connection or relationship between the representation and (relevantly) the exercise of a workplace right: see generally Gold Coast City Council v Satellite Wireless Pty Ltd [2014] FCAFC 51; 220 FCR 412 at [38]-[39], [43] (the Court); R v Le [2002] NSWCCA 186; 54 NSWLR 474 at [59] (Heydon JA, Dunford and Buddin JJ agreeing). The connection must be sufficient for the operative false or misleading conduct to occur. That is not to say there must be a causal connection: rather it is to recognise that the core purpose of the prohibition is to protect the exercise of the identified workplace rights in the FW Act from conduct which could undermine, frustrate or otherwise adversely affect the exercise of those rights”: [254].
In Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25; (2015) 230 FCR 298 at [159], Logan, Bromberg and Katzman JJ said:
A representation is misleading if it has a tendency to lead a person into error: Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640 at [39]. Of course, it is possible that a half-truth or an ambiguous remark or even silence may have this tendency (Justice JD Heydon AC, Thomson Reuters, Trade Practices Law – Competition and Consumer Law, vol 3 (at Service 178) [190.150]). But the words in the documents must be read in context. As Gibbs CJ said of misleading conduct contrary to s 52 of the Trade Practices Act 1974 (Cth), “[i]t is obvious that where the conduct complained of consists of words it would not be right to select some words only and to ignore others which provided the context which gave meaning to the particular words”: Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 at 199; see also Elders Trustee and Executor Co Ltd v E G Reeves Pty Ltd (1987) 78 ALR 193 at 241 (Gummow J).
It is also well established that a tendency to lead a person into error is required, not a tendency to create mere confusion or wonderment in the mind of the person: Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44; (1982) 149 CLR 191 at 198, 209–210, Taco Company of Australia Inc v Taco Bell Pty Ltd [1982] FCA 170; (1982) 42 ALR 177 at 201–202, Campomar Sociedad, Limitada v Nike International Limited [2000] HCA 12; (2000) 202 CLR 45 at [106].
In Australian Education Union v Royal Melbourne Institute of Technology [2018] FCA 1985 at [44] Wheelahan J said:
In order to engage s 345 it must be shown that the false or misleading representation was made “knowingly or recklessly”. The state of mind required by s 345(1) of the Act attaches to the false or misleading quality of the representation, not the act of the making of the representation. What is required is that a false or misleading statement is made knowing it to be false, or recklessly indifferent as to its truth: Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298 at 329 [161]. In CEPU v Australian Postal Corporation [2017] FCA 1091 at [257] Mortimer J stated that no authorities have considered the scope or operation of the mental element in s 345. I did not hear full argument on the content of the word “recklessly” in s 345 for the purposes of this urgent application. My preferred view is that what is arguably required is proof of subjective recklessness consistent with criminal law principles: Shop, Distributive and Allied Employees’ Association v Karellas Investments Pty Ltd (No 2) (2007) 166 IR 51 at 69–70 [86] –[92] (Graham J) (upheld on appeal without consideration of this issue: (2008) 166 FCR 562). See also: Australian Securities and Investments Commission v Mariner Corporation Ltd (2015) 241 FCR 502 at 552–6 [248]–[279]. However, it may be arguable that an objective element is imported: Fair Work Ombudsman v Ecosway Pty Ltd [2016] FCA 296 at [186]–[199], but noting that Ecosway concerned “reckless” in the different legislative context of s 357(2) of the Fair Work Act, and its legislative history.
In Retail and Fast Food Workers Union Incorporated v Tantex Holdings Pty Ltd [2020] FCA 1258; (2020) 299 IR 56 Logan J said at [43]–[45]:
…the choice of the formulation “knowingly or recklessly” avoids controversies which have attended the import of the word “wilfully” in offence or penal provisions, qv Iannella v French (1968) 119 CLR 84, at 93. The observation of the Full Court in CFMEU v BHP, at [161], confirms what a reading of s 345 would in any event suggest, which is that the alternative mental elements in that section each extend to the false or misleading quality of the representation.
As to the import of those alternatives, the same “knowingly or recklessly” formulation was considered in the analogous context of statement focussed offences in Comptroller-General of Customs v Woodlands Enterprises Pty Ltd [1996] 1 Qd R 589 (Woodlands Enterprises). In that case, Pincus JA, at 602, with whom Fitzgerald P and McPherson JA materially agreed, having referred to the meaning ‘“purposely or deliberately or intentionally untrue”’ adopted in Murphy v Farmer [[1988] HCA 31; (1988) 165 CLR 19], at 29, observed, “‘knowingly’ imports I think about as strong a mental element as ‘false or wilfully misleading’ does”. As to “recklessly”, Pincus JA, at 603, considered that this alternative was sufficiently proved by a finding that the maker of the statement had “closed his eyes to the obvious or at least continued to claim rebates on the fuel knowing that it was likely that the supply of fuel was a sale, and not caring whether or not it was a sale”. This approach to what amounts to reckless is subjective in focus looking to the maker of the statement. That subjective focus is consistent with the like focus given by the alternative “knowingly”. It would be an odd construction of s 345 to conclude that one alternative “knowingly” required proof of a subjective intent whereas the other alternative, “recklessly” was sufficiently proved by an objective construct…
After Woodlands Enterprises came Banditt v The Queen [[2005] HCA 80;] (2005) 224 CLR 262 (Banditt), in which Gummow, Hayne and Heydon JJ offered, at [1]–[3], these observations about the meaning of recklessness as a criterion for legal liability:
1The term “reckless” has various uses as a criterion of legal liability. This appeal turns upon one such use of the term in the New South Wales criminal law, but it is convenient first to consider some aspects of the civil law.
2When “reckless” is used in applying the principles of the tort of negligence, the yardstick is objective rather than subjective. On the other hand, to sustain an action in deceit, fraud is proved when it is shown “that a false representation has been made (1) knowingly, or (2) without belief in its truth, or (3) recklessly, careless whether it be true or false”. But (3) is but an instance of (2) because, as Lord Herschell put it in Derry v Peek [(1889) 14 App Cas 337 at 374]: “[O]ne who makes a statement under such circumstances can have no real belief in the truth of what he states.” This reasoning is akin to that which supports the evidentiary inference explained by Lord Esher MR as being that one who wilfully shuts his eyes to what would result from further inquiry may be found to know of that result.
3To these expositions of the civil law by Lord Herschell and Lord Esher there may be added the following statement by Lord Edmund-Davies in his dissenting speech in Commissioner of Metropolitan Police v Caldwell:
So if a defendant says of a particular risk, ‘It never crossed my mind,’ a jury could not on those words alone properly convict him of recklessness simply because they considered that the risk ought to have crossed his mind, though his words might well lead to a finding of negligence. But a defendant’s admission that he ‘closed his mind’ to a particular risk could prove fatal, for, ‘A person cannot, in any intelligible meaning of the words, close his mind to a risk unless he first realises that there is a risk; and if he realises that there is a risk, that is the end of the matter’.”

On this basis I accept the submissions for the respondents that:
(1)a false or misleading representation is made “knowingly” where the maker of the representation does so “purposely or deliberately or intentionally” while knowing that the representation is untrue (Tantex at [46]; also Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Adelaide Airport Case) [2021] FCA 951 at [117]); and
(2)a representation is made “recklessly” when the maker of the representation either closes their eyes to the obvious as to the truth of the representation, or, knowing that it is likely that the representation is not correct, chooses to make it, not caring whether it is correct or misleading. In this regard the maker of the representation must have this state of mind. It is not sufficient to prove that a reasonable person in the maker’s position would have had such a state of mind (Tantex at [42]–[51]).
To the extent I need to do so, I also reject the ASU’s formal submission that s 361(1) of the FW Act might mean that the impugned state of mind is to be presumed unless the person proves otherwise. I do not see that construction of s 361(1) to be open given that the presumption applies only to the reason for or intent with which the action is taken. In context, this presumption does not apply to the knowing or reckless requirements of s 345(1).
6.3 WFH Cessation Statement
For the reasons already given, the statement made in the WFH Guide (“[w]hen working at home, you are required to: … [a]ttend the workplace when requested by a manager where appropriate and possible to do so”) was accurate. It was not false or misleading. It was not about any workplace right under cl 50 of the EA.
Even if cl 50 of the EA applied to the ATO’s pandemic response, I would not have found that the inclusion of this statement in the WFH Guide involved any knowing or reckless false or misleading representation about the workplace rights of any ATO employee covered by the EA. This is because:
(1)as noted, cl 50.1 of the EA contains the proviso “provided ATO operational requirements can continue to be met” which is the foundation for the requirement in the existing Working at home policy for employees to attend the office when required by their manager to do so;
(2)that provision was always in the Working at home policy which applied to arrangements under cl 50 of the EA; and
(3)accordingly, if they had believed that cl 50 of the EA applied to arrangements under the WFH Guide forming part of the ATO’s pandemic response, the ATO officers also would have reasonably believed that the WFH Cessation Statement was consistent with the existing policy about arrangements under cl 50.
The submissions for the ASU do not confront these realities.
Accordingly, I do not agree that the ordinary and reasonable ATO employee interested in the ATO’s pandemic response and the associated WFH Guide would “likely conclude that, absent express words to the contrary, the method of implementing working at home would conform with the rights they had under the enterprise agreement”. They certainly would not have done so based on anything the ATO said or did (as discussed above). Rather, the ordinary and reasonable ATO employee interested in the ATO’s pandemic response and the associated WFH Guide would likely conclude that the ATO was implementing an extraordinary response to an extraordinary circumstance, which would continue only so long as the extraordinary circumstance required, and which was intended to provide an opportunity to arrange to work from home outside of the ordinary operation of cl 50 of the EA and the associated Working at home policy.
Further, and as the respondents submitted:
(1)the WFH Guide did not say that an employee who was working from home under an approved arrangement was required to cease doing so upon a request from their manager to attend the workplace, where appropriate and possible (as alleged in [47] of the ASU’s pleading);
(2)the WFH Guide said that “[w]hen working at home, you are required to: … [a]ttend the workplace when requested by a manager where appropriate and possible to do so” which does not convey that the arrangement had ceased; and
(3)the WFH Guide said nothing about the Process Participation Right, the Employee WFH right, or the WFH Content Right.
6.4 Unilateral Termination Representations
Contrary to the ASU’s case, the statement in the WFH Guide from 2 April 2020 onwards that “[a]ny interim working from home arrangements confirmed during the COVID-19 response supersede any pre-existing working from home arrangements” would not have conveyed to the ordinary and reasonable ATO employee covered by the EA that:
(1)the ATO had ended existing formal working from home arrangements under cl 50 of the EA; and
(2)the ATO had, and could, unilaterally repudiate working at home arrangements made under the EA during, or by reason of, the COVID-19 pandemic response.
I accept that the statement in the WFH Guide “[a]ny interim working from home arrangements confirmed during the COVID-19 response supersede any pre-existing working from home arrangements” is ambiguous and might have given rise to confusion in the minds of ATO employees. But I do not accept that the statement would have conveyed the representation as alleged to the ordinary and reasonable ATO employee covered by the EA.
The first pleaded representation is that “the ATO had ended existing formal working from home arrangements under cl 50 of the EA”. By “ended”, I understand the ASU means brought to an end permanently. That meaning would not have been conveyed to the ordinary and reasonable ATO employee covered by the EA because every other part of the WFH Guide exposed that it was an interim and temporary measure only. In that context, it would not occur to the ordinary and reasonable ATO employee covered by the EA that the WFH Guide meant that any existing formal arrangement under cl 50 of the EA was terminated by reason of an arrangement being approved under the WFH Guide. They would have assumed or understood that the operation of any approval under the WFH Guide itself was merely temporary.
The second pleaded representation is that the ATO had, and could, unilaterally repudiate working at home arrangements made under the EA during, or by reason of, the COVID-19 pandemic response. Again, a repudiation cannot be interim or temporary. It is permanent. For the same reasons as given above, the ordinary and reasonable ATO employee covered by the EA would have assumed or understood that the operation of any approval under the WFH Guide itself was merely temporary.
It follows that the pleaded misrepresentations case cannot succeed.
I note that Mr Lapidos said that:
When I first read these words, I thought they contemplated that employees who had a pre-existing working at home arrangement that allowed them to work at home during the week would have this replaced with a new formal working at home arrangement that covered all their regular hours.
This does not suggest Mr Lapidos understood the words to mean that the existing cl 50 arrangement had ended or been terminated.
The respondents repeatedly made clear that they held the ASU to its pleaded case.
In the context of allegations of involvement of individual ATO officers in the alleged contraventions and their consequential exposure to civil penalties, the need to hold the ASU to its pleaded case is particularly important. In this regard I have in mind that:
(1)it was put to Mr Chapman that the statement meant that the arrangements under the WFH Guide replaced any existing formal arrangement under cl 50 of the EA. Mr Chapman disagreed but the relevant point is that it was not put to him that the arrangements under the WFH Guide “temporarily replaced” any existing formal arrangement under cl 50 of the EA for the duration of the ATO’s pandemic response only;
(2)it was put to Mr Moore that his purpose in including the statement in the WFH Guide was “to bring everyone onto the guide”, which he denied. It was not put to Mr Moore that his purpose was that arrangements under the WFH Guide temporarily replaced any existing formal arrangement under cl 50 of the EA for the duration of the ATO’s pandemic response only. As noted, Mr Moore’s reference to “supersede” meaning “replace in effectiveness” was not further explored and was given in a context of his intention 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”;
(3)it was put to Ms Curtis that the intention of the statement was for the WFH Guide arrangements to replace any existing working from home arrangement under cl 50 of the EA. She disagreed. Again, the point is that it was not put to her that she intended that arrangements under the WFH Guide would temporarily replace any existing formal arrangement under cl 50 of the EA only for the duration of the ATO’s pandemic response; and
(4)a representation that the ATO intended arrangements under the WFH Guide to temporarily replace any existing formal arrangement under cl 50 of the EA only for the duration of the ATO’s pandemic response was not put to Mr Geale.
In these circumstances it would be unfair to permit the ASU now to depart from its pleaded case in respect of the Unilateral Termination Representations.
6.5 ATO Intention Representation
Mr Moore’s statement in the 13 May 2020 letter to Mr Lapidos was that “[t]he ATO does not consider this arrangement to be a working from home arrangement as envisaged under clause 50.1 of the EA”. The “arrangement” in question was working from home arrangements under the WFH Guide forming part of the ATO’s pandemic response.
Mr Moore’s statement was not false or misleading. It was correct. As a correct statement, it was also not about any workplace rights under cl 50 of the EA.
Even if an arrangement under the WFH Guide was subject to cl 50 of the EA, I would not have found Mr Moore’s statement to be knowingly or recklessly false or misleading. In that event, the statement would have accurately conveyed the actual position of the ATO. That position would have been legally wrong, but would have accurately reflected the view of the ATO as attributable to it by reason of the views of the relevant ATO officers. On that basis, the statement would still not have been false or misleading. It would have merely been wrong. And in any event, in such a case, Mr Moore would have had reasonable arguments to consider the statement of the ATO’s position to correctly reflect the law (as discussed above). As such, I do not see how it could be concluded that Mr Moore knew of the falsity of the statement or was recklessly indifferent to it.
Further, I agree with the respondents that:
…the ASU Closing now pivots from its pleaded case. While the pleaded case hinges on the representation made by Mr Moore to the ASU (Mr Lapidos), the ASU Closing now attempts to make relevant what managers may have been communicating to their staff about the status of the WFH Guide Arrangements. In any event, even with this shift, the ASU accepts that Mr Moore’s evidence was that managers were communicating in accordance with what the ATO was advising them. There is no evidence that the ATO had advised managers anything contrary to the statement contained in the Moore Statement that arrangements made under the WFH Guide did not constitute Clause 50.1 Agreements, which Mr Moore, on advice, believed to be true.
For these reasons, the whole of the ASU’s false and misleading representations case must fail.
7. THE ACCESSORIAL LIABILITY CASE
Given that I have rejected the whole of the ASU’s case, it follows that I also reject its case of accessorial liability against the various ATO officers.
The relevant provision is s 550 of the FW Act which provides that (notes omitted):
(1)A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.
(2)A person is involved in a contravention of a civil remedy provision if, and only if, the person:
(a)has aided, abetted, counselled or procured the contravention; or
(b)has induced the contravention, whether by threats or promises or otherwise; or
(c)has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
(d)has conspired with others to effect the contravention.
The test is knowing and intentional participation in the contravention in the sense that the person must know the facts that make up the contravention and intend to give effect to those facts whether or not they know the facts involve a contravention: Yorke v Lucas [1985] HCA 65; (1985) 158 CLR 661 at 667–668; Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2017] FCAFC 50 (CFMEU v BHP Coal) at [59].
I do not see how it is possible for the Commissioner to have any accessorial liability under s 550 of the FW Act merely by reason of the Commissioner’s position as Agency Head. That would be to attribute liability to a person who in fact may have known nothing about the particular facts of the alleged contravention.
Further, I consider that the doctrine of vicarious liability cannot be used to circumvent the requirement for personal knowing intentional involvement that s 550 requires for accessorial liability. While it may be accepted that the FW Act does not exclude the common law doctrine of vicarious liability (see for example, Australian Building and Construction Commissioner v McDermott (No 2) [2017] FCA 797; (2017) 252 FCR 393 and Hanley v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2000] FCA 1188; (2000) 100 FCR 530), I do not see how the Commissioner could be vicariously liable for the conduct of employees when the agreed position of the parties is that it is the Commonwealth which is the employer (not the Commissioner), and the role of the Commission is merely the employing authority. In any event, I do not consider that the submissions of the parties provide sufficient assistance to express any further views in this regard.
The presumption in s 361(1) of the FW Act does not apply to accessorial liability. While CFMEU v BHP Coal at [59] left open the possible application of the s 361(1) presumption to the issue of intention, it cannot apply to knowledge. See also Australian Red Cross Society v Queensland Nurses’ Union of Employees [2019] FCAFC 215; (2019) 273 FCR 332 at [97].
One aspect of the required knowledge would have been that cl 50 of the EA applied to the ATO’s pandemic response. The alleged accessories, Mr Geale, Ms Curtis and Mr Chapman did not possess that knowledge. In fact, they held knowledge to the contrary.
The ASU otherwise relies on ss 793 and 795(2) of the FW Act and the common law doctrine of vicarious liability. All must be rejected given my conclusions above.
Further, if my conclusions are wrong and the WFH Guide arrangements were subject to cl 50 of the EA, I consider that the following conclusions follow.
Section 793 involves attributing to a body corporate the conduct of its officers, employees and agents within the scope of his or her actual or apparent authority. The result of s 793 applying would not be to fix the Commissioner with any form of accessorial liability if cl 50 of the EA applied to arrangements under the WFH Guide.
Section 795(1) provides that “the employer of an employee (a public sector employee) employed in public sector employment must act only through the employee’s employing authority acting on behalf of the employer”. Again, the Commissioner is the relevant employing authority so accessorial liability is not in play.
Otherwise, the respondents said that:
Any liability of the Commonwealth by operation of s.793 or s.795(2) of the Fair Work Act is contingent upon primary liability of Mr Geale, Ms Curtis and Mr Moore being established. For the reasons set out above, such liability does not arise, and the consequential liability against the Commonwealth for the alleged contraventions of s.345(1) will not flow.
If the Court finds that the primary contravention is made out, it is accepted that, by operation of ss.793(1) and 795(2) of the Fair Work Act, the conduct of the relevant officer is taken to have been engaged in by the Commonwealth.
8. CONCLUSIONS
The pandemic was an exceptional circumstance. It placed enormous stresses on most Australians. The ATO officials who are individual respondents in the present case were faced with extraordinary circumstances. The ATO was of fundamental importance to the Australian government’s pandemic management. Mr Geale said, for example:
Most of my team over that weekend and probably for the most previous week had been working 20 plus hours a day to deal – this wasn’t the only issue that we had on our plate. I was also managing JobKeeper, cashflow boost, you know, many, many other operational issues.
This is unsurprising. The ATO had to keep functioning. It also had to protect its employees from unacceptable health risks. It had to turn around its usual operations of working from the office to working from home for as many people as it could with exceptional speed to achieve these objectives. With hindsight, Mr Geale for one accepted that some things could have been made clearer. But it is impossible to infer that the ATO officers were doing other than acting in good faith in the interests of the interdependent considerations of enabling the ATO to keep functioning and not exposing its employees to unacceptable health risks.
Nothing suggests that the ATO officers used the pandemic as some kind of stalking horse to undermine workplace rights in the EA. In circumstances where urgent action on such a large scale was taken by the ATO, it would be surprising if some mistakes were not made and some confusion not caused. The idea that the ATO officers misled Mr Lapidos about the ATO’s pandemic response and the urgent transition of employees to working from home, so the ASU could not perform its functions as it wished to do so during the early phase of the pandemic, which appears to be the principal motivation for this litigation, is untenable on the evidence.
For the reasons above, the ASU’s case must be rejected. I will order that the proceeding be dismissed.

I certify that the preceding four hundred and ninety-five (495) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jagot.

Associate:
Dated: 14 October 2022
SCHEDULE OF PARTIES

NSD 1288 of 2020

Respondents

Fourth Respondent:

JACQUI CURTIS

Fifth Respondent:

JEREMY MOORE

Sixth Respondent:

BRADLEY CHAPMAN

File number:	NSD 1288 of 2020
Judgment of:	JAGOT J
Date of judgment:	14 October 2022
Catchwords:	INDUSTRIAL LAW — where union alleged circumvention and breach of enterprise agreement (EA) and misrepresentations as to workplace rights arising from work from home arrangements implemented during COVID-19 pandemic — where temporary work from home arrangements provided additional flexibility rather than overriding pre-existing arrangements — EA arrangements still available during pandemic — no misrepresentation of workplace rights nor contravention of EA — proceeding dismissed
Legislation:	Fair Work Act 2009 (Cth) ss 12, 14, 50, 338(2)(b), 340(1), 341(1), 341(2)(k), 342(1), 345, 360, 361, 550, 793, 795 Fair Work Regulations 2009 (Cth) reg 6.09, sch 6.3 Public Service Act 1999 (Cth) ss 7, 13(5), 20(1), 24(1A), 24(3) Taxation Administration Act 1953 (Cth) ss 4A(1)–(2), 8(1) Australian Taxation Office (ATO) Enterprise Agreement 2017
Cases cited:	Australian Building and Construction Commissioner v McDermott (No 2) [2017] FCA 797; (2017) 252 FCR 393 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Adelaide Airport Case) [2021] FCA 951 Australian Education Union v Royal Melbourne Institute of Technology [2018] FCA 1985 Australian Licensed Aircraft Engineers Association v Qantas Airways Limited [2022] FCAFC 50; (2022) 314 IR 231 Australian Red Cross Society v Queensland Nurses’ Union of Employees [2019] FCAFC 215; (2019) 273 FCR 332 Campomar Sociedad, Limitada v Nike International Limited [2000] HCA 12; (2000) 202 CLR 45 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation [2017] FCA 1091 Community and Public Sector Union v Telstra Corporation Limited [2001] FCA 267; (2001) 107 FCR 93 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25; (2015) 230 FCR 298 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2017] FCAFC 50 Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Limited (No 2) [2017] FCA 1046; (2017) 69 AILR ¶102–860 Construction, Forestry, Mining and Energy Union v State of Victoria [2013] FCA 445; (2013) 302 ALR 1 Hanley v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2000] FCA 1188; (2000) 100 FCR 530 Health Services Union v Ballarat Health Services [2011] FCA 1256 James Cook University v Ridd [2020] FCAFC 123; (2020) 278 FCR 566 Klein v Metropolitan Fire and Emergency Services Board [2012] FCA 1402; (2012) 208 FCR 178 National Tertiary Education Union v La Trobe University [2015] FCAFC 142; (2015) 254 IR 238 OneKey Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union [2018] FCAFC 77; (2018) 262 FCR 527 Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44; (1982) 149 CLR 191 Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) [1998] HCA 30; (1998) 195 CLR 1 Qantas Airways Ltd v Transport Workers’ Union of Australia [2022] FCAFC 71; (2022) 402 ALR 1 R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday; Ex parte Sullivan [1938] HCA 44; (1938) 60 CLR 601 R v Khazaal [2012] HCA 26; (2012) 246 CLR 601 Retail and Fast Food Workers Union Incorporated v Tantex Holdings Pty Ltd [2020] FCA 1258; (2020) 299 IR 56 Squires v Flight Stewards Association of Australia [1982] FCA 171; (1982) 2 IR 155 Taco Company of Australia Inc v Taco Bell Pty Ltd [1982] FCA 170; (1982) 42 ALR 177 Walsh v Greater Metropolitan Cemeteries Trust (No 2) [2014] FCA 456; (2014) 243 IR 468 WorkPac Pty Ltd v Skene [2018] FCAFC 131; (2018) 264 FCR 536 Yorke v Lucas [1985] HCA 65; (1985) 158 CLR 661
Division:	Fair Work
Registry:	New South Wales
National Practice Area:	Employment and Industrial Relations
Number of paragraphs:	495
Date of hearing:	15–18 March, 17 June 2022
Counsel for the Applicant:	Mr M Harding SC and Mr Y Bakri
Solicitor for the Applicant:	Gordon Legal
Counsel for the Respondents:	Mr P O’Grady QC, Dr L Hilly and Ms M Salinger
Solicitor for the Respondents:	Kingston Reid

ORDER MADE BY:	JAGOT J
DATE OF ORDER:	14 OCTOBER 2022

NSD 1288 of 2020
Respondents
Fourth Respondent:	JACQUI CURTIS
Fifth Respondent:	JEREMY MOORE
Sixth Respondent:	BRADLEY CHAPMAN