Australian Municipal, Administrative, Clerical and Services Union v Commonwealth of Australia as represented by the Commissioner of Taxation

[2025] FWC 2668

[2025] FWC 2668

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.739—Dispute resolution

Australian Municipal, Administrative, Clerical and Services Union
v

Commonwealth of Australia as represented by the Commissioner of Taxation

(C2025/2619)

COMMISSIONER CRAWFORD SYDNEY, 9 SEPTEMBER 2025

Dispute about whether ATO complied with freedom of association provisions in enterprise agreement – ATO aware ASU was representing a member regarding a flexible work request – ATO initiated direct discussions with the member about the dispute – ATO did not fail to act in good faith towards the ASU – ATO did fail to respect and facilitate the ASU’s role as a representative – dispute resolved – no orders made.

BACKGROUND

1. There is an important issue that lies behind this dispute between the Australian Municipal, Administrative, Clerical and Services Union (ASU) and the Commonwealth of Australia as represented by the Commissioner of Taxation (ATO) in relation to the Australian Taxation Office (ATO) Enterprise Agreement 2024 (Agreement). The important issue is the working arrangements for an ASU member employed by the ATO, Radhish Singh, who is legally blind and faces difficulties using public bus services to travel to and from work. Fortunately, Mr Singh, the ASU, and the ATO have been able to reach agreement about what appears to be a very sensible flexible working arrangement for Mr Singh which will apply until 7 May 2026.[1]  During the process of reaching agreement about Mr Singh’s flexible working arrangements, the ASU and the ATO have ended up in these dispute resolution proceedings concerning their interactions with each other and about whether the ATO acted contrary to the freedom of association provisions in the Agreement. This is a relatively minor dispute when viewed in context that sophisticated industrial parties like the ASU and ATO should have been able to resolve directly. That did not occur and hence this decision is required to resolve the dispute between the ASU and ATO.

1. The parties agree that the Commission has jurisdiction to arbitrate the dispute in accordance with s.739 of the Fair Work Act 2009 (FW Act) and the dispute resolution procedure in clause 109 of the Agreement. 

EVIDENCE

1. The ASU relied on a witness statement from Jeffrey Lapidos (Branch Secretary) dated 19 June 2025 which had several documents attached. Mr Lapidos was not required for cross-examination.

1. The ATO relied on a witness statement from Jennifer Madigan (EL2 Director of the Staff Experience and Communications Team) dated 3 July 2025 which had several documents attached. Ms Madigan was cross-examined on her evidence during the hearing on 2 September 2025.

1. The critical evidence in relation to this dispute is captured in the following documents:

i.A thread of emails between Mr Singh and ATO representatives from 28 January 2025 to 5 February 2025 concerning the expiry of Mr Singh’s existing working from home agreement on 25 February 2025. That agreement allowed Mr Singh to work from home aside from two days each month where Mr Singh was required to attend the office. Mr Singh confirmed in an email sent on 30 January 2025 that he was seeking a new working from home agreement whereby he would only be required to attend the office for one day per month.[2]

ii.At 1:13pm on 4 February 2025, Mr Lapidos sent an email to Ms Madigan and others. Mr Lapidos’ email confirmed the ASU was now representing Mr Singh in relation to his application for a new work from home agreement. Mr Lapidos applied on Mr Singh’s behalf for a new agreement which did not require Mr Singh to attend the office. Mr Lapidos sought ad hoc immediate approval for this arrangement, and a new working from home agreement which allowed for 100% work from home for a term of 12 months. Mr Lapidos referred to Mr Singh being legally blind and to issues identifying the right bus to catch to and from work.[3]

iii.Ms Madigan replied to Mr Lapidos’ email at 4:34pm on 4 February 2025. Ms Madigan stated she would liaise with ATO People and provide Mr Lapidos with an update by close of business on 5 February 2025.[4]

iv.Ms Madigan contacted Mr Singh directly using an internal Jabber communication system at 12:53pm on 5 February 2025. Ms Madigan sought a meeting with Mr Singh at 2:30pm that afternoon to discuss his work from home request. Mr Singh agreed to the meeting at 12:55pm.[5]

v.Ms Madigan and Mr Singh met via Teams at 2:30pm on 5 February 2025. There is no dispute that Ms Madigan stated at the beginning of the meeting that she understood Mr Lapidos was Mr Singh’s union representative and asked whether Mr Singh wanted Mr Lapidos to be part of the discussion. Mr Singh indicated he was happy to have the meeting with Ms Madigan without Mr Lapidos. During the meeting, Mr Singh agreed to continue attending the office during February 2025. Ms Madigan suggested that Mr Singh starts working in the office on the relevant days later, and finishes earlier, to avoid the busier peak commuting periods. Mr Singh agreed with this proposal. The meeting ended with Ms Madigan asking Mr Singh to send an email confirming he was requesting a new working from home agreement with 100% work from home. Mr Singh asked Ms Madigan whether he could discuss the meeting with Mr Lapidos and Ms Madigan confirmed that could occur and that she would also respond directly to Mr Lapidos.[6]

vi.Mr Lapidos sent an email to Ms Madigan and others at 8:40am on 6 February 2025 to raise concerns about Ms Madigan’s conduct in meeting with Mr Singh on 5 February 2025 without the ASU as his representative. Mr Lapidos requested that Mr Singh’s agreement to attend the office in February 2025 be reversed and that Ms Madigan provides the ASU with an update as previously agreed.[7]

1. The parties had differing views about whether Ms Madigan’s conduct in arranging a meeting with Mr Singh on 5 February 2025 was contrary to the freedom of association provisions in the Agreement. The ASU escalated the dispute internally within the ATO and ultimately with the Commission. There are various documents which record the progress of the dispute that do not need to be referred to in the decision.  

TERMS OF THE AGREEMENT

1. Having been put on notice by the ASU that it was representing Mr Singh on 4 February 2025, the ASU argues the ATO acted in breach of the following terms of the Agreement when Ms Madigan arranged to meet directly with Mr Singh on 5 February 2025 to discuss his work from home request:

“12.2      An employee may have an employee representative, who may be a union representative, to represent them in their industrial interests. The ATO and the employee representative will deal with each other in good faith…

12.4     The role of employee representatives, including union delegates and other non-union employee representatives, is to be respected and facilitated.”  

1. The principles for interpreting industrial instruments are well established and were not disputed by the parties in this case. At a high level, the aim is to identify the meaning of the relevant terms by reference to the words used in the instrument and the context and purpose of the provisions.

1. The term “good faith” has been defined as “a state of mind characterised by honesty and sincerity of intention.”[8]

1. The term “respected”, which is used as a verb in clause 12.4 the Agreement, has been defined in the following terms: “to act in a way which shows that you are aware of (someone's rights, wishes, etc.)” or “to treat or deal with (something that is good or valuable) in a proper way.”[9]

1. The term “facilitated”, which is used as a verb in clause 12.4 of the Agreement, has been defined in the following terms: “to make something possible or easier.”[10]

1. I consider the intended meaning of these provisions is reasonably straightforward when viewed in their industrial context.

1. I consider clause 12.2 requires the ATO and an appointed employee representative to act honestly and sincerely towards each other in their dealings about the industrial interests of an employee/s.

1. I do not consider the good faith bargaining requirements prescribed in s.228 of the FW Act, and authorities directed at interpreting or applying those requirements, to be overly helpful to understanding the intended meaning of clause 12.2 of the Agreement. The good faith bargaining requirements have been specifically developed by Parliament as obligations for bargaining representatives to follow when negotiating an enterprise agreement. The good faith bargaining requirements are prescriptive obligations that the bargaining representatives must meet. I consider clause 12.2 has deliberately been drafted in more general and broad terms so that it can be applied in a broad range of potential circumstances.

1. I consider clause 12.4 requires the ATO to acknowledge the role of an appointed employee representative, to deal with an employee representative in a proper way, and act in a way that allows the employee representative to perform its appointed role.   

CONSIDERATION

1. I do not consider the conduct that the ASU complains about can be said to demonstrate that the ATO, through Ms Madigan, was acting without honesty or sincerity. The evidence does not suggest Ms Madigan intended to be dishonest or insincere with the ASU regarding her meeting with Mr Singh. The evidence establishes that Ms Madigan always intended to make the ASU aware that the discussion had occurred and to advise the ASU about the outcome of the discussion. The evidence also establishes that Ms Madigan expressly provided Mr Singh with the opportunity to request that Mr Lapidos participate in the discussion and that Mr Singh declined that offer.

1. I consider the ASU’s concerns are better characterised as a potential failure to follow proper procedure rather than as an act of dishonesty or insincerity. I am satisfied that Ms Madigan sincerely intended to seek clarification from Mr Singh about his request and to try and reach an agreed position to assist Mr Singh. I do not consider Ms Madigan had any sort of dishonest or sinister intent to undermine the role of the ASU. 

1. I do not consider that Ms Madigan’s actions in arranging to meet directly with Mr Singh on 5 February 2025 meant that the ATO did not act consistently with its obligation in clause 12.2 of the Agreement to deal with the ASU in good faith.

1. However, I am satisfied that Ms Madigan’s actions in arranging to meet directly with Mr Singh on 5 February 2025 were inconsistent with the obligations in clause 12.4 of the Agreement.

1. Ms Madigan was clearly on notice from 4 February 2025 that the ASU was representing Mr Singh in relation to his request for a new working from home agreement. I consider Ms Madigan failed to respect the role of the ASU as Mr Singh’s appointed representative when she arranged to meet directly with Mr Singh on 5 February 2025. Ms Madigan committed in the email she sent Mr Lapidos at 4:34pm on 4 February 2025 to liaise with ATO people and to provide Mr Lapidos with an update by the close of business the next day. Ms Madigan did not raise the prospect of having a direct discussion with Mr Singh in her email to Mr Lapidos and it is extremely likely that Mr Lapidos would have objected if he was given the opportunity. I see no reason why Ms Madigan could not have invited Mr Lapidos to the meeting on 5 February 2025 or at least have provided Mr Lapidos with notice of the meeting so he could contact Mr Singh. I consider Ms Madigan’s actions mean the ASU’s role as Mr Singh’s representative was not respected by the ATO as required by clause 12.4 of the Agreement.  

1. I also consider Ms Madigan’s actions in arranging a direct meeting with Mr Singh on 5 February 2025 meant that the ASU was not allowed to perform its appointed role as representative for Mr Singh. Rather than facilitating the ASU’s role as representative for Mr Singh by making it “possible or easier”, the ATO created a situation whereby the ASU would only be permitted to perform its role if this was specifically requested by Mr Singh on the spot during a potentially intimidating meeting with a senior manager on 5 February 2025. The ATO was aware that the ASU was Mr Singh’s representative following Mr Lapidos’ email on 4 February 2025. No further actions or requests from Mr Singh were required to confirm the ASU’s role. Ms Madigan’s conduct placed the ASU’s role in jeopardy because the performance of the ASU’s role as representative became contingent on how Mr Singh answered questions during the meeting on 5 February 2025. I do not consider Ms Madigan’s conduct can be said to have facilitated the role of the ASU as Mr Singh’s representative as required by clause 12.4 of the Agreement. 

1. I determine that Ms Madigan’s conduct on behalf of the ATO on 5 February 2025 in arranging to meet directly with Mr Singh was not consistent with the obligation in clause 12.4 of the Agreement to respect the role of the ASU as Mr Singh’s representative and to facilitate the performance of the ASU’s role as Mr Singh’s representative. 

RELIEF 

1. The ASU seeks an order that the ATO provides a written apology to the ASU and Mr Singh in relation to Ms Madigan’s conduct on 5 February 2025. The ASU also seeks, in broad terms, orders to refrain the ATO from directly contacting an employee in the future where the ATO is aware the ASU is representing the industrial interests of an employee in relation to a matter in dispute. 

1. Assuming (without deciding) that there is jurisdiction to make the orders sought by the ASU, I do not intend to make the orders sought.

1. I consider a legitimate and arguable dispute has arisen about whether Ms Madigan’s conduct on 5 February 2025 was consistent with clause 12.2 and 12.4 of the Agreement. I do not consider it is appropriate or necessary for the ATO to issue an apology merely because I have resolved the dispute partially in favour of the ASU’s position.

1. I also do not consider it is appropriate or necessary to make any broad orders about the future conduct of the ATO. There may be other circumstances where the ATO making direct contact with an employee is not inconsistent with clause 12 of the Agreement. I am dealing with a very confined dispute about Ms Madigan’s conduct on 5 February 2025 in relation to Mr Singh’s work from home request. I have resolved the dispute by making findings about whether the relevant conduct was consistent with the Agreement. I do not have sufficient evidence or submissions to make the type of broad order sought by the ASU regarding the ATO’s future conduct.

1. It is clear on all the evidence that the ATO respects and acknowledges the role of the ASU in its workplace and that the ATO acts in good faith towards the ASU. I have found the ATO acted inconsistently with clause 12.4 of the Agreement in a relatively minor and seemingly isolated example. I do not consider the ATO’s conduct warranted the level of response that was forthcoming from Mr Lapidos and consider the dispute could have been resolved in a more efficient manner if Mr Lapidos had responded in a more moderate and balanced manner.

1. I have resolved the dispute by determining whether the ATO acted in accordance with the Agreement. I am confident the ATO will take the decision into account in its subsequent conduct. I do not consider any additional steps are required to resolve the dispute.

COMMISSIONER

Appearances:
Mr S Blewett of counsel on behalf of the ASU.
Mr C Rawson from the Australian Government Solicitor for the ATO.

Hearing

2025.
Sydney (via video).
2 September.

[1] Mr Lapidos’ statement at [29], DHB page 171. 

[2] Ms Madigan’s statement, Attachment JM-3, DHB page 238 – 240.

[3] Ms Madigan’s statement, Attachment JM-1, DHB page 235 – 236.

[4] Ms Madigan’s statement, Attachment JM-1, DHB page 235.

[5] Mr Lapidos’ statement, Attachment JL-7, DHB page 194.

[6] Ms Madigan’s statement at [26], DHB page 232 – 233.

[7] Mr Lapidos’ statement, Attachment JL-5, DHB page 189.

[8] Collins English Dictionary (online at 3 September 2025) ‘good faith’ (n¹, def 2).

[9] The Brittanica Dictionary (online at 3 September 2025) ‘respect’ (v, def 2 and def 3(a)).

[10] Cambridge Dictionary (online at 3 September 2025) ‘facilitate’.

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