CPSU v Commonwealth of Australia - [2009] FMCA 488

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CPSU & ANOR v COMMONWEALTH OF AUSTRALIA

[2009] FMCA 488

INDUSTRIAL LAW – Contravention of Workplace Relations Act – alteration of position of employee for prohibited reason – employee permitted to use substantial work time for union activities – employer regarded her as ineligible for duties requiring full-time availability – whether employer’s action altered employee’s position – employer’s action not part of the operative or proximate reasons for the employee’s grievance – application dismissed.

Public Service Act 1999 (Cth), ss.10(1)(b), 25
Workplace Relations Act 1996 (Cth), ss.792, 793, 807, 809

Australian Municipal, Administrative, Clerical & Services Union v Ansett Australia Ltd (2000) 175 ALR 173
Blair v Australian Motor Industries Ltd (1982) 61 FLR 283
Community & Public Sector Union v Commonwealth (2007) 163 FCR 481
General Motors - Holden’s Pty Ltd v Bowling (1976) 51 ALJR 235
Harrison v P & T Tube Mills Pty Ltd [2009] FCA 220
Major v State of South Australia [1999] FCA 1684
Maritime Union of Australia v CSL Australia Pty Ltd (2002) 113 IR 326
Maritime Union of Australia v Geraldton Port Authority (1999) 93 FCR 34
Patrick Stevedores Operations No.2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1
Squires v Flight Stewards Association of Australia (1982) 2 IR 155
Suh v Minister for Immigration & Citizenship [2009] FCAFC 42
SZGME v Minister for Immigration & Citizenship [2008] FCAFC 91

First Applicant:

CPSU, THE COMMUNITY & PUBLIC SECTOR UNION

Second Applicant:

WENDY JANE BACKHOUS

Respondent:

COMMONWEALTH OF AUSTRALIA

File Number:

SYG 492 of 2009

Judgment of:

Smith FM

Hearing dates:

29 & 30 April 2009

Delivered at:

Sydney

Delivered on:

29 May 2009

REPRESENTATION

Counsel for the Applicants:

Ms C Howell

Solicitors for the Applicants:

Slater & Gordon

Counsel for the Respondent:

Mr A Moses SC & Mr B Miles

Solicitors for the Respondent:

Mallesons Stephen Jaques

ORDERS

The application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 492 of 2009

CPSU, THE COMMUNITY & PUBLIC SECTOR UNION

First Applicant

WENDY JANE BACKHOUS

Second Applicant

And

COMMONWEALTH OF AUSTRALIA

Respondent

REASONS FOR JUDGMENT

The CPSU and Ms Backhous apply under s.807 of the Workplace Relations Act 1996 (Cth) for an order imposing a pecuniary penalty on the Commonwealth and for injunctive relief, arising from events in Ms Backhous’ employment in the NSW branch of the Office of Aboriginal and Torres Strait Islander Health Branch (“OATSIH”) of the Commonwealth Department of Health and Ageing (“DoHA”). She complains that she was put out of consideration for a new position of ‘solution broker’ in a restructuring of positions which implemented budgetary cuts to staffing levels. The restructuring led to the reduction of the number of solution brokers in the branch from two to one APS 6 level positions, and Ms Backhous was directed to relinquish her previous duties as a solution broker and to assume other duties as a ‘regional coordinator’ at the same level within the same office. This was contrary to her wishes. She claims that it occurred because her managers thought that her activities as a CPSU delegate and staff representative left her with insufficient time to perform the duties of the new position. She alleges that their conduct was in breach of s.792(1)(c), read with s.793(1)(a) or (o) of the Act.
These provide:
792(1)An employer must not, for a prohibited reason, or for reasons that include a prohibited reason, do or threaten to do any of the following:
…
(c)alter the position of an employee to the employee’s prejudice;
…
793(1)Conduct referred to in subsection 792(1) or (5) is for a prohibited reason if it is carried out because the employee, independent contractor or other person concerned:
(a)is, has been, proposes to become or has at any time proposed to become an officer, delegate or member of an industrial association; or
…
(o)as an officer or member of an industrial association, has done, or proposes to do, an act or thing for the purpose of furthering or protecting the industrial interests of the industrial association, being an act or thing that is:
(i) lawful; and
(ii) within the limits of an authority expressly conferred on the employee, independent contractor or other person by the industrial association under its rules; or
…
The provisions have a long history of judicial consideration, to which I was taken by counsel for the parties in their written submissions. However, there was little disagreement between the submissions of counsel as to their effect, and it will be unnecessary for me to traverse all the authorities. In short, if Ms Backhous establishes that her employer’s actions produced a relevant ‘prejudice’ within s.792(1)(c), the Court must examine the employer’s real reasons which motivated, induced, or explained, those actions. An evidentiary onus then faces the employer to establish that its reasons did not include, even in part, an attribute of Ms Backhous falling within s.793(1)(a) or (o).
The reversal of the normal onus of proof arises under s.809(1):
809(1)If:
(a)in an application under s.807 relating to a person’s conduct, it is alleged that the conduct was, or is being, carried out for a particular reason or with a particular intent; and
(b)for the person to carry out the conduct for that reason or with that intent would constitute a contravention of this Part;
it is presumed, in proceedings under this Division arising from the application, that the conduct was, or is being, carried out for that reason or with that intent, unless the person proves otherwise.
At relevant times, decisions about the deployment of about 23 members of staff within the NSW branch of OATSIH were the responsibility of its branch manager, Mr Merrett. The staff were organised in a number of ‘teams’ with responsibility for the implementation of various indigenous health projects and other duties, each under a manager reporting to Mr Merrett. They included the ‘Greater Western Area & Workforce & Population Health’ team, and the ‘Hunter/New England & Central Coast & Substance Use & Indigenous Whole of Government, & Mainstream Access’ team. Ms Mere was the manager of the latter team, which prior to the restructuring included Ms Backhous and Mr Schubert as its two APS level 6 ‘solution brokers’. Her team also included two APS 6 ‘regional coordinators’, and the other teams also had about this number of coordinators. They, however, did not have any ‘solution broker’ positions at any relevant time. Some of the staff worked reduced hours with the agreement of their employer for a variety of personal reasons, or were temporarily away from work.
It was common ground that projects were differently managed within OATSIH when administered by a solution broker rather than a regional coordinator, and that this led to different demands on the persons filling those roles, although both roles were suited to the capacities expected of APS level 6 officers. The role of ‘solution broker’ appears to have had historical origins, arising from the previous government’s ‘whole of government’ approach to indigenous issues, in which “the solution broker is working with other government departments to do joint-funded projects” (see Mr Merrett, transcript 29 April 2009, p.42).
The evidence did not leave me with a clear picture of the practical differences of the two administrative methods, nor why some of the APS 6 staff in the Sydney OATSIH office preferred to work as ‘solution brokers’ rather than ‘regional coordinators’. My impression is that, from the perspective of some staff, solution broking involved more flexible liaison with outside agencies and persons, and a larger component of discretion and responsibility in relation to the prioritisation of work. However, the existence of different work demands on solution brokers and regional coordinators, and the personal preferences of APS 6 officers as to the roles, seems to have been understood by all the witnesses before me.
It was common ground that with the arrival of the Labor Government, there was a shift from funding and administering indigenous health projects on a ‘solution broker’ method towards a ‘regional coordinator’ method. It was common ground that this trend, when combined with budgetary pressure on staff numbers, explained the underlying reason for the restructuring of solution broker duties which was discussed within OATSIH in late 2008 and was implemented by Mr Merrett in February 2009.
The central factual issues between the parties concerned why Mr Merrett decided not to spread the shrinking ‘solution broker’ projects among existing regional coordinators, but to give this work to one person working full-time on these duties. More directly, why he decided to give the duties to Mr Schubert and not to Ms Backhous, without adopting other arrangements which might have allowed her to accommodate the demands of her union activities with the demands of her employment duties. Instead, she was moved into regional coordination duties in the Greater Western etc. team, and no longer performs any solution broker duties.
Although there were some disagreements between the witnesses about their recollections and opinions, these were mostly immaterial and were not the subject of cross-examination. Nor was I invited to reject any witness’s evidence as untruthful, and I find generally that all witnesses gave honest and truthful evidence to the best of their recollections. There was no controversy about the background of Ms Backhous’ involvement in union activities, nor about the restructuring within OATSIH. However, the evolution of the decision to amalgamate the duties of two solution brokers into one position was marked by informal discussion among the managers and staff, and was not clearly recorded in contemporaneous documents. I was therefore invited by the CPSU to examine carefully the reasons now presented to the Court by Mr Merrett and Ms Mere for the decision to move Ms Backhous from her solution broker duties, and not to be persuaded by them.

The employer’s conduct.

I make the following findings which amplify the narrations provided by both counsel in their written submissions, and are based upon the evidence of witnesses which I accept.
Ms Backhous has been employed by DoHA since 2003. She has been a CPSU member since that time, and at relevant times held the elected position of section secretary under the CPSU rules. The section includes the whole of DoHA, i.e. encompassing many employees, sections and agencies of DoHA beyond OATSIH. At all relevant times, she was both a member and officer of the CPSU for the purpose of s.793(1)(a) of the Act.
In the office of section secretary of the CPSU, Ms Backhous performed a range of duties, including representing individual members who have disputes or grievances, or are the subject of complaints. This role is provided for within the current certified agreement, which provides staff with an entitlement to be represented by their chosen support person.
Ms Backhous also undertook representational functions as one of the four staff representatives elected to a consultative body established by DoHA under the collective agreement, which is known as the National Staff Participation Forum (“NSPF”). In particular, this required attendances at quarterly two-day meetings in Canberra, and involvement in other consultations on general issues of concern to employees. She gained her representative position in a ballot conducted for all employees, presenting herself on a CPSU ‘ticket’ of “the union group of people that are nominating for that forum” (see transcript 29 April 2009 p.13, also Ms Flood p.20-21). She also was an invited participant at a State Forum within DoHA, and may at times also have been asked to act as proxy at such forums for CPSU delegates. Although it was not initially conceded by the Commonwealth, I find that these representational activities were undertaken by Ms Backhous as an adjunct to her union involvement, and were undertaken in her dual capacities both as a member of staff and as a union official. The dual role was clearly for the advantage of union members, other employees, and the industrial relations of DoHA. It appears to have been so regarded by her employer and managers, and the evidence does not establish that they expressed or felt disapproval of any of her activities.
The union and staff representative roles referred to above overlapped to some degree in practice. Ms Backhous used her own spare time to perform many of the activities, but it was recognised by her managers that some of her activities should occupy a substantial part of her working hours, and she was permitted this. In this respect, it was her evidence that they currently take up about one to one and a half days per week on average. No time sheets have been kept, and some of her managers made estimates of greater time being occupied by her with union and representational activities. Certainly, more time had been required at times in the past when she was involved in negotiating a collective agreement, but such negotiations were not on foot at relevant times.
The evidence is unclear whether Ms Backhous’ managers received any directions from their superiors in DoHA as to the work-time which they should allow Ms Backhous when engaging in her union and representational activities. I was not taken to any provisions of legislation, public service directives, the collective agreement, or other document, which required or governed this. Clearly, the accommodation of the substantial non-work demands on her time must have been a concern of her managers, particularly when they came under budgetary staffing pressures.
Ms Mere gave evidence that she was “concerned that Ms Backhous has had difficulty in trying to meet both her work and representative duties”. She said that she “approached various people within OATSIH … with a view to seeking that Ms Backhous’ representative roles be formally recognised by the Department”. In February 2009, at the time when Mr Merrett was considering his restructuring decision, he took this issue to a meeting of the DoHA ‘NSW Executive’. He said in his affidavit that he “requested that the cost associated with Ms Backhous’ union and representative activities, which had been informally estimated to be 1-2 days per week, be spread across each of the branches within the Department instead of being borne by OATSIH alone, as had been the case for the past 3 years”. He said that at a meeting of that body on 2 February 2009, “it was agreed at the meeting that the cost associated with Ms Backhous’ role as a NSPF representative be shared across the Department once an accurate estimate could be provided as to the amount of time Ms Backhous was required to dedicate to such activities”.The minutes of the meeting record: “Exec agreed that the standard whole of office formula be applied to funding the position once the amount of time out of office is clarified”. The evidence before me is unclear whether and when such ‘clarification’ was achieved, although Mr Merrett gave evidence that the time required of Ms Backhous in her current coordinating position “has been adjusted” to recognise her union and representative work (transcript 29 April 2009 p.41, and see also Ms Mere at transcript 30 April 2009 p.14).
Ms Backhous had been appointed to a position labelled ‘solution broker’ in Ms Mere’s team at OATSIH in April 2006. She was appointed to this position through a competitive selection process.
Mr Schubert took up similar full-time duties as a solution broker in Ms Mere’s team in November 2007. There was some controversy before me as to the exact designation of the position which was advertised and to which he was appointed, and as to his antecedent work. It appears that within OATSIH, APS 6 positions of solution broker and regional coordinator have been advertised in the same or similar terms, and that the managers regard the required qualifications as being interchangeable for the two roles. Although Ms Backhous presented evidence seeking to show that she was better, or at least not less, qualified to be employed as a solution broker than Mr Schubert, her essential complaint is that she was denied a detailed merits competition with Mr Schubert for the new single position, because her time commitments were regarded as rendering her unavailable for duties requiring 5 days a week. Essentially, this is not denied by the Commonwealth, and it is therefore unnecessary for me to attempt a comparison of the other qualifications of Ms Backhous and Mr Schubert for the new position. It was not suggested by Ms Backhous, and I would not find, that she would obviously have been the person preferred for the new position, absent the perception of her managers that she did not have enough time for its duties.
In May 2008, the First Assistant Secretary, Office for Aboriginal and Torres Strait Islander Health within DoHA, Ms Podesta, informed Mr Merrett’s State Manager that OATSIH’s 2008-09 budget was to be reduced by more than $7m. Her minute stated that the budget reduction would be met by a reduction in staff numbers, and “it is expected that staff decreases in State/Territory Offices will be achieved through a reduction in the level of solution broker and program management activity. …The reduction for the New South Wales State Office is made up of a decrease of 2.0 FTE for solution brokers with a commensurate reduction in supplier costs”. As a consequence, in or about June 2008, the number of full-time solution broker roles in the OATSIH NSW branch was reduced from the equivalent of 4 full-time employees to 2.2 full-time employees, and there was some restructuring of four other regional teams to accommodate additional functions. Ms Backhous and Mr Schubert retained their positions as solution brokers in Ms Mere’s team at that time.
In November 2008, Ms Podesta directed further attention to overspending in the OATSIH NSW branch, and requested further reviews of travel, legal and other expenditure. The State Manager undertook action to bring expenditure within budget, including by savings in a review of expenditure in the ‘indigenous whole of government activity’ administered by the solution brokers in Ms Mere’s team. This led to Mr Merrett initiating another review of solution broker staffing levels, and requesting Ms Mere to prepare a discussion paper on the options available to him.
The review became known within the OATSIH Sydney office in early December 2008, and the options which might be considered by Ms Mere were discussed among the affected staff, including Ms Backhous and Mr Schubert. It must have been clear to everyone that they were the persons who would be most immediately affected, and Ms Mere and Mr Merrett considered whether there were options which could accommodate their wishes. Around this time, Ms Backhous indicated to Ms Mere that she was considering the option of a 4 day working week arrangement to accommodate her family commitments, and Mr Schubert also seems to have been considering his career options at that time. However, they both subsequently retracted any desire to leave their current positions as solution brokers.
On 24 December 2008, Ms Backhous approached Ms Mere to discuss the progress of the review. Ms Mere showed Ms Backhous a list of points she was developing for a discussion paper. Ms Backhous then took leave, but on her return, Ms Mere held further discussions with her about the paper on 4 February 2009. At that time, Ms Mere expressed the opinion that, if solution brokers were reduced to one position, “I think it is going to require full time hours and if your union and representative work is recognised by the Executive, I don’t think you will be able to work in the role on a full time basis”. Ms Backhous expressed her disagreement, and suggested that her union work could be accommodated.

Ms Backhous complains that the options for the restructuring of the office became refined, and effectively were determined, during her absence on leave and without adequate consultation with her. However, I consider that she was afforded reasonable opportunities to make known her views to Mr Merrett before he made his decision, that she made clear her disagreement with the option which attracted him, and that he took into account her views and suggestions before making a decision to accept the first option which was formulated in Ms Mere’s paper.
The final version of Ms Mere’s discussion paper was emailed to Ms Backhous and Mr Schubert on 6 February 2009. The copy which is in evidence is undated, and its author and the maker of its recommendation are not identified. In her evidence, Ms Mere suggested that it represented the final evolution of points discussed by her with Mr Merrett and others in the office. However, she made clear that its final recommendation accorded with her own firm opinion.
It was entitled “Whole of Government Activity in NSW”, and set out the history of budgetary cuts and the government’s ‘change of focus’ away from ‘WOG work’. The existing commitments and projects were listed and categorised, and the opinion explained that “there is more than enough activity in the WoG sector to justify a full time Solution Broker supported by a part time Project Officer”. The paper concluded:
Options and Discussion
Option 1 – Cut back to one Solution Broker
The role of Solution Broker is kept separate from that of regional coordinator. But the solution broking activity is reduced to one full-time solution broker. The key role of the Solution Broker would be to liaise with and on behalf of DoHA with the ICCs, undertake DoHA related work in relation to priority whole of government work including sourcing funding from across the various divisions in the Department and providing input into RPAs and collaborative projects, manage contract and acquittal processes with the project officer and relevant teams within the Department, provide input into Whole of Government reports briefings and planning. This option does not allow for Solution Brokers to undertake development of local projects or community consultation which may provide some risk.
- Issues
This approach will achieve the equivalent of an APS 6 decrease in departmental expenditure in the Branch and make available that resource to focus on other branch priorities. It will nonetheless result in a reduction in Whole of Government work through the ICCs while maintaining some profile.
Option 2 – Absorb SB work into regional teams
The work of Solution Brokers could be absorbed completely into the service development teams with RCs undertaking the work of Solution Brokers along with contract management responsibilities.
- Issues
Given the competing priorities confronting Regional Coordinators it is likely that Solution Broker activity would either not be carried out or that appropriate statewide coordination would be based on individual ability to respond rather than a systematic approach.
Preferred Option
Option 1 is recommended that the Solution Broker role be reduced to one FTE based in Sydney to cover NSW as a whole.
In her oral evidence, Ms Mere explained why the first option was recommended to the DoHA managers:
It was the preferred option because we were asked to reduce the budget, and the priority in reducing the budget was to reduce the number of solution brokers. To reduce down to one solution broker contained the work to one position, rather than if it had been incorporated into the regional coordinators’ work across the branch. There are about 10 regional coordinators, I think, and that wouldn’t necessarily contain the work, and it might actually creep up to be the equivalent of a number of people working on solution broking work. …
[In relation to option 2] It would’ve been a very messy option and we would’ve had two possibilities there. One is that we wouldn’t have been able to contain the work and that it would’ve taken over. The other possibility was that it would get neglected. It’s hard to predict and I suspect – and I am only guessing here – that it would’ve varied from region to region. (transcript 30 April 2009 p.5-6, with some editing).
She also explained her perception of a need for a full-time position:
I did want someone to be covering the position 37.5 hours a week or full-time. Particularly, because these projects were going to take that much time. It was about requests for information, and requests about the Department of Health and Aging that would come from the indigenous coordination centres. There’s about six of them in New South Wales, and there’s also a number of issues that we need to respond to that appear in the media or briefing requests from Canberra about particular issues that relate to our whole of government work. I didn’t feel like I had the time or the capacity to do a lot of that work and not have someone to refer to. … some of them are big jobs, some of them are small jobs, but from my perspective it was about having somebody available within the branch to be able to take responsibility for responding to those requests and calls and things that come in (transcript 30 April 2009 p.7, with some editing).
After reading the paper, Ms Backhous met with Ms Sally Ross, the NSW Manager of Human Resources and Communication for DoHA, on 5 February 2009, and raised concerns regarding the review and the discussion paper. In particular, she was concerned that “the amount of time I’m spending on my union and staff roles may count me out from the Solution Broker position. But I don’t think these activities should be relevant to the process of selection. I think other options, other than a reduction, to one solution broker position, should be looked at to accommodate this”. Ms Ross reviewed the effect of the collective agreement, the redeployment and restructuring guidelines, and the change management guidelines. Her opinion was that they did not require a formal process to be followed by Ms Backhous’ managers, although appropriate consultation was required.
In her evidence, Ms Ross said that she did not see any problem in the managers’ re-arranging the duties of the formally created staff positions in the office, because “people often move around at level within branches, according to where the priorities are and where their work is needed” (see her evidence at transcript 29 April 2009 p.49, also Mr Merrett at p.36: “positions can be created fairly simply, as long as you can afford it”, and Ms Mere, transcript 30 April 2009 p.11). Ms Ross’ opinions as to the absence of any required formal procedures were not substantially challenged before me, and I accept them. Although the applicants took me to s.10(1)(b) of the Public Service Act 1999 (Cth), and to the Public Service Commissioner’s Directions 1999 cl.2.3(1)(b), I do not consider that their imprecise requirements are inconsistent with Ms Ross’ opinion, nor with the procedures which were followed in the restructuring of duties implemented by Mr Merrett.
On 9 February 2009, a meeting was held with Mr Merrett, Ms Mere, Ms Ross, Ms Backhous and Mr Schubert, to discuss the content of the discussion paper and to obtain feedback from Ms Backhous and Mr Schubert regarding their preferences to continue in a solution broker role. Mr Merrett made clear that solution broker work would be reduced to one ‘full-time equivalent’ position, and stated his opinion that “I think the clearest option is one person doing the Solution Broker role”. This was discussed, and Ms Backhous proposed that there could be two part-time solution broker roles shared by herself and Mr Schubert. Mr Schubert did not support this suggestion.
On 10 February 2009, a meeting was held between Ms Backhous, Ms Mere and Mr Schubert to explore the proposal of two part-time solution broker roles, and further discussions occurred between Ms Mere and Mr Merrett. The need to adjust the work of regional coordinators in OATSIH, including filling a position which was unoccupied due to an officer’s protracted illness, was also discussed.
On 16 February 2009, a second meeting was held between Mr Merrett, Ms Mere, Ms Ross, Ms Backhous and Mr Schubert. According to Ms Mere’s affidavit, Mr Merrett said at the end of the meeting: “My preference is for one-full time Solution Broker role. I would like Robert [Mr Schubert] to continue in that position because Wendy [Ms Backhous] has extensive representative commitments and she won’t be able to dedicate the full time hours to the role that it needs. Wendy, I would like you to take on a Regional Coordinator role for the Inner Greater West. You know all the stakeholders in the area and it means you will be close to your family. Also, from an operational perspective it will have the least impact on the branch. It will mean that we don’t have to move Robert on to a part-time arrangement – which he doesn’t want to do and also less people will need to be trained up to do the excess work that would come out of a part-time arrangement”.
The recollections of other witnesses about this meeting are not in perfect accord with Ms Mere’s evidence, but I accept her evidence, and find that it recounts pertinent statements made by Mr Merrett. In effect, he announced the staffing decision which he had arrived at, stated his reasons, and explained its consequences to the staff affected. The decision upset Ms Backhous, and she immediately expressed her dissatisfaction with the process which had been followed.
Mr Merrett’s evidence was to the same effect as Ms Mere’s. In cross-examination, he agreed that he had made two decisions: to adopt the option of locating all ‘solution broker’ duties in one full-time position, and then to move Mr Schubert and not Ms Backhous to that position. He also agreed that his preference for the first option in the discussion paper “carried with it a determination as to who would get the position”, due to his opinion that Ms Backhous did not have the time available for the duties of the new position. I accept his evidence about this: “It wasn’t a decision … about excluding Wendy from the option. But yes, in retrospect, I think that making a final decision about having one full time position occurred at the same time that I formed the view that the best solution for the branch as a whole would be that Robert take up that position and that Wendy take up the regional coordinator position” (transcript 29 April 2009 p.33).
On 23 February 2009, Mr Merrett sent an email to Ms Backhous, which said: “I confirm that after considering all the options and the impact of any changes on staff across the Branch, I ask that you move into the Greater West Section to assist with work pressures in that team. Due to those work pressures I would like this move to occur as soon as possible”.
On 19 March 2009, Gayle Anderson, State Manager of the DoHA wrote to Ms Backhous, stating: “as a delegate of the Secretary and in accordance with section 25 of the Public Service Act 1999 (Cth), I confirm that you are required to commence in the position of Regional Coordinator from Wednesday 25th of March 2009”. She said: “we think it provides the most viable opportunity for you to continue to undertake your representative roles both as a staff-elected representative and as the Health and Ageing Section Secretary for the Community and Public Sector Union in a paid capacity and without the need for you to work outside normal Departmental hours. The Department values the significant contribution you make in both representative roles and will continue to support you in your pursuit of these activities while you remain in the Regional Coordinator (Greater West) role”.
Ms Backhous complied with this direction. However, meanwhile she had sought the support of her union, and the present application had been filed on 3 March 2009. Its hearing was expedited at her request at a first court date held on 20 March 2009.

Prejudice to an employee within s.792(1)(c)?

The parties were in dispute whether Mr Merrett’s decision to move all remaining solution broker duties into a single position occupied by Mr Schubert was conduct in relation to Ms Backhous’ employment which “alter(ed) the position of an employee to the employee’s prejudice” within s.792(1)(c).
Both counsel cited the explanation for similar words in earlier legislation in Patrick Stevedores Operations No.2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 at [4]: “par.(c) is a broad additional category which covers not only legal injury but any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question”. Other authorities were cited which suggest that the paragraph covers any conduct harmful to an employee in his or her employment, or different treatment which “can be seen to be injurious or prejudicial” (see Blair v Australian Motor Industries Ltd (1982) 61 FLR 283 at 290, and Squires v Flight Stewards Association of Australia (1982) 2 IR 155 at 164). However, the section does not cover deteriorations in the working conditions of an employee, nor risks of future deterioration, where these are inherent to the nature or terms of the employment (compare Major v State of South Australia [1999] FCA 1684 at [18], and Maritime Union of Australia v Geraldton Port Authority (1999) 93 FCR 34 at [265]).
The applicants submitted that Ms Backhous had suffered relevant prejudice because she “lost the opportunity to have her eligibility for the solution broker position considered according to merits based criteria”, as a result of “being excluded from any merit based selection process purely by reference to her representational activities”. They argued that this was comparable to the prejudice to employees identified in Community & Public Sector Union v Commonwealth (2007) 163 FCR 481.
In that case, Branson J found at [90] that DEWR advice to managers that leave should not be made available to employees to enable their attendance at industrial action relevantly altered their position, “because it gave rise to a real risk that any requests made by them to take leave on 15 November 2005 for the purpose of attending the Day of Protest would not be considered according to the usual practices of their respective Agencies but by reference to a more restrictive criterion”.
In the present case, the evidence does not establish that the procedures followed by Mr Merrett and the other managers in DoHA were deficient or departed from any requirement of public service legislation or directives, or any industrial agreement, arrangement or protocol. This includes the restructuring and ‘change management’ guidelines which are in evidence. As I have found above, I accept the evidence of Ms Ross that there was no obligation on the managers to follow any particular procedure when rearranging the duties and positions of the affected level 6 staff members within the OATSIH NSW branch, other than observance of a general expectation that it would involve fairness towards, and consultation with, the employees affected.
I am not persuaded by the applicants’ submissions that a fair procedure was not followed, nor that Ms Backhous’ wishes and suggestions were not genuinely sought and considered, notwithstanding Ms Backhous’ disappointment at the outcome. I consider that the events which I have outlined above showed otherwise. On the evidence which I have accepted, Ms Backhous’ employment carried no tenure or right of retention of the solution broker duties or position which she filled prior to Mr Merrett’s decisions. I therefore would not find any prejudice suffered by Ms Backhous to her rights as an employee of a substantive or procedural nature in the course of the conduct of her managers of which she complains.
The applicants attempted to establish that Ms Backhous had suffered a prejudice by being moved into a coordinator’s position which was less secure than the new single solution broker position, and which exposed her to a greater risk of her employment being terminated for redundancy. They pointed to evidence that the position whose duties she was asked to perform, was occupied by a person who was absent on protracted sick leave, but who, in theory at least, might return to that position. However, I do not consider that the evidence established any greater insecurity faced Ms Backhous subsequent to Mr Merrett’s decision, than previously. As was pointed out by Mr Merrett and Ms Mere, the long-term future for all solution broking positions was insecure due to the change of government and budget cuts, and Mr Schubert’s new position was under threat in the next budget. Moreover, their evidence suggested that the absent coordinator was not expected to return to her old position, and, indeed, by the time of the hearing she had resigned from the public service. I am not persuaded that the challenged conduct of the managers rendered Ms Backhous’ employment in the public service at level APS 6 in the OATSIH NSW branch any less secure than it was before that conduct.
The only complaint which I consider that Ms Backhous has established is that her wishes to continue in solution broker duties within the OATSIH NSW office were not successful. This occurred because she was ineligible for the single full-time position which resulted from the managers’ implementation of a budgetary staff reduction, due to her requiring part of the working week to perform her union and representative activities. The disadvantage in employment which Ms Backhous essentially points to, and which I accept that she faced, is that the managers’ staffing decisions had a discriminatory effect on her by comparison with Mr Schubert, in that they resulted in the establishment of a single solution broker position which she was disqualified to fill due to her unavailability for a substantial period of every working week.
It is difficult to see how her disqualification from the new position was something which her employer “did”, within the opening language of s.792(1). Rather, it might appear to be solely brought about by her personal background, which governed the time she had available for the duties of her employment. The discrimination she complains of was an unintended and indirect consequence of her personal qualifications arising from her union activities. The employer’s restructuring of duties had a causal relationship in the occurrence of the situation of which she complains, but might not itself appear to be the operative reason or cause of her grievance. In this situation, I am doubtful that her grievance comes within the ambit of the prejudices encompassed by s.792(1)(c). I am therefore inclined to accept the submission of the respondent that the applicants have not established an action of the employer which itself altered Ms Backhous’ position in her employment to her prejudice.
However, as I shall explain below, I am more confidently of the opinion that, even if Ms Backhous’ disqualification from competing for the new solution broker position with Mr Schubert constituted a prejudicial alteration to her employment brought about by action of her employer, the employer has established that its conduct did not occur for a prohibited reason. I therefore prefer to base my judgment on a finding as to the absence of a required element under s.793(1), rather than the absence of an employer’s conduct coming within s.792(1).

The employer’s reasons for its conduct.

As I have explained above, the applicants’ case in relation to s.793(1)(a) requires me to consider whether the Commonwealth has established that it was no part of the reasons of Ms Backhous’ managers for altering her position as an employee that she was a union officer, member or delegate, nor, in relation to s.793(1)(o), that she had done or would do a lawful and authorised “act or thing” for the purpose of furthering or protecting the industrial interests of her union.

The applicants did not point to any particular past or proposed action of Ms Backhous to which the reasons for her losing her solution broker duties might be attributed. They would have had great difficulty doing this, since all of her managers expressed applause rather than any displeasure about all of her union and representative activities. The employer’s policy allowed, rather than restricted, the employee’s involvement in union activities during work time. Rather, the applicants’ case pointed to the totality of her union activities which gave rise to her unavailability for the full-time duties of a single solution broker position. Perhaps because of this, their case was principally presented by reference to s.793(1)(a), upon a submission that this paragraph encompassed all attributes of union office which were ‘associated’ with Ms Backhous’ union positions. They then sought to characterise her unavailability for the proposed full-time duties as an attribute of her union office, and therefore as a relevant part of the reasons for the relevant decisions of her managers.
The extent to which s.793(1)(a) encompasses the activities of a union official as a prohibited reason, as distinct from the fact of his or her holding union office, was recently discussed by Dowsett J in Harrison v P & T Tube Mills Pty Ltd [2009] FCA 220 at [285]-[289]. His Honour considered the suggestion by Mason J in General Motors - Holden’s Pty Ltd v Bowling (1976) 51 ALJR 235 at 241, that an employer might have difficulty disassociating a union official’s troublesome union activities from the fact of his holding union office, as a reason for dismissing him. Dowsett J referred to Merkel J’s discussion of this in Australian Municipal, Administrative, Clerical & Services Union v Ansett Australia Ltd (2000) 175 ALR 173 at [72], which suggested that Mason J’s observations should be understood in a situation where the circumstances of the dismissal “are closely associated with the activities of the employee in that capacity”. Dowsett J also discussed later cases, and at [298] said that he would “proceed upon the basis that ss.792(1)(a) and 793(1)(a) proscribe dismissal because of union membership or status as an officer or delegate, but not because of conduct. However conduct is relevant to the question in the way explained by Mason J in Bowling”.
The applicants submitted that Dowsett J had taken an erroneous construction of s.793(1)(a), and invited me not to follow his judgment since it was under appeal. I would have difficulty with this submission, even if I thought his opinion was clearly wrong (cf. SZGME v Minister for Immigration & Citizenship [2008] FCAFC 91 at [42], and Suh v Minister for Immigration & Citizenship [2009] FCAFC 42 at [29]). However, I do not consider that the present matter turns upon fine points as to the implications of Mason J’s judgment in Bowling, as explored in the subsequent jurisprudence.
What is clear, in my opinion, is that even if all the ‘associated’ activities of union officials are picked up as a proscribed reason by s.793(1)(a) on its own, or in combination with s.793(1)(o), those activities are proscribed reasons only if they actually provided the employer’s reason for its prejudicial action. It is not enough that they only provided a background circumstance or remote cause for the occurrence of the employer’s action. Framed in terms of the reverse onus, in my opinion, an employer can clear itself from a finding that a prohibited reason was part of the reasons for its prejudicial action, if it establishes that the action was connected to the union official’s activities only in a remote causal sense, and that the associated union activities themselves played no part in the employer’s reasons for its action.
I find recent support for this construction of s.793 in the judgment of Branson J in the CPSU case which I cited above, and which was the authority principally relied upon by the applicants. In that case, Branson J held at [114] that the DEWR instruction to managers which limited their granting of leave was for a prohibited reason, upon a finding that it “was issued because a significant number of Commonwealth employees were members of CPSU and, as a consequence, it was recognised within DEWR that many of them might wish to attend the Day of Protest”. This finding necessarily established that union membership itself was the reason for the prejudicial action of issuing the directive, and Branson J’s judgment should not be understood as accepting that it would have been enough to consider whether an activity associated with union members was the employer’s reason. The whole point of her reasoning was that the agency managers in that case were directed to refuse leave because a significant number of the persons who were expected to apply for it on the Day of Protest were union members. The contraventions found by Branson J in that case do not, in my opinion, assist the present applicants.
My above approach to s.793(1) is supported by Branson J’s other reasoning, which found against the contraventions which were alleged to have occurred in relation to the agency and managers’ determinations which refused leave to particular employees. She said:
Agency Determinations
[115]As indicated above, I have concluded that each of Mr McGill and Mr O’Connell was refused approval to take leave on 15 November 2005 because he proposed to attend the Day of Protest. I also accept that a threat was made to dock Mr McAninly’s pay for the time that he spent at the Day of Protest because he attended the Day of Protest. However, despite the link discussed above between attendance at the Day of Protest and membership of an industrial association, I am satisfied that the relevant determinations made by officers of ACS, ATO, DVA and DEST respectively were not made because employees affected by the determinations were members of an industrial association. Rather the evidence shows that the immediate or operative reason for the determinations was the circulation of the DEWR Advice (Maritime Union of Australia v CSL Australia Pty Ltd (2002) 113 IR 326 at [54]). The determinations were a direct consequence of the contravention of s 298K(1) that resulted from the circulation of the DEWR Advice. They illustrate how the DEWR Advice altered the position of Commonwealth employees who were members of CPSU to the employees’ prejudice. The officers concerned felt obliged to ensure that their respective agencies complied with the DEWR Advice.
[116]Having regard to the above finding, s 298V of the old Act has no role to play in respect of the Agency determinations (Greater Dandenong City Council v Australian Municipal, Administrative, Clerical and Services Union (2001) 112 FCR 232 at [218] per Finkelstein J).
Individual Applicants
[117]By parity of reasoning, the decisions whereby Mr McGill and Mr O’Connell were refused approval to be absent from their respective workplaces on 15 November 2005, and the threat that was made to dock Mr McAninly’s pay for the time that he spent at the Day of Protest, were not additional contraventions of s 298K(1) of the old Act. I am satisfied that these decisions were not made because the individuals concerned were members of an industrial association. The immediate or operative reason that the decisions were made was because of the Agency determinations discussed above — which were themselves made because of the DEWR Advice.
Branson J’s test of an “immediate or operative reason” for an employer’s action excludes causal circumstances which would not themselves be characterised as the actuating reason of the employer nor part of its reasons. This was more fully explained in the paragraph she cited from her earlier judgment in Maritime Union of Australia v CSL Australia Pty Ltd (2002) 113 IR 326 at [54]:
It is difficult, if not impossible, to identify the ratio decidendi of Greater Dandenong. However, two members of the Full Court (Merkel and Finkelstein JJ) concluded that the learned primary judge had erroneously failed to distinguish between the operative (or immediate) reason for the Council’s conduct and the cause (or proximate reason) for the Council’s conduct. While, as it seems to me, this distinction may in many cases be easier to articulate than to draw, especially in respect of a statutory provision that recognises the possibility of a number of reasons having a causal connection with conduct, I consider that I should be guided by the approach taken by Merkel and Finkelstein JJ who constituted a majority of the Full Court in Greater Dandenong on this issue. I am fortified in my decision to adopt this approach by the fact that the approach appears to me to be consistent with that adopted by R D Nicholson J in MUA v Geraldton (see par 43 above).
Branson J’s citation in CPSU at [116] makes the point that an employer will have discharged the reverse onus of proof if it establishes that its prejudicial actions were connected to the union membership of the affected employee only as part of the causal background to the actions, and that the union attributes of the employee were not an immediate or operative or proximate reason of the employer for taking the action.
In the present case, I consider that the Commonwealth has established this in relation to the challenged actions of Ms Backhous’ managers.
My above findings have accepted the managers’ evidence as to their contemporaneously stated reasons, and I find that they honestly gave their actual reasons. I accept that they thought that the shrinking solution broker work of the OATSIH NSW branch would be best performed by one full-time employee, that this would require the employee to be available for all days of the working week, and that Mr Schubert was the only one of the two current solution brokers who was available to fill that position. I accept their evidence that Ms Backhous’ union membership and offices, and any activities she had or would perform in those capacities, played no part in their consideration. Those attributes were connected to their reasons for excluding her from the new position only in the sense that they provided the causal background which explained her unavailability for the new position. They did not provide the reason, or part of the reasons, for their actions which distressed Ms Backhous.
This is demonstrated by the fact that the same decision would have occurred irrespective of the causes of her unavailability. Others in the office were unable to commit to full-time work for a variety of reasons, including personal preferences and externally operating reasons of illness or family commitments. Such employees, had they occupied Ms Backhous’ previous solution broking position, would have been similarly excluded from consideration for the new single solution broker position. Ms Backhous’ union background and activities were, in my opinion, entirely irrelevant to the employers’ reasons for excluding her from consideration for that new position.
I do not accept the applicants’ oblique challenge to the managers’ evidence about their reasons, which was presented in evidence and submissions, suggesting that Ms Backhous could have been appointed to the new position notwithstanding her admitted unavailability for a full week, because solution broking work was likely to further reduce in the future. Ms Backhous claimed that she was able in the past to “fit my union duties around my work commitments”, and suggested that this was assisted by some flexibility in the duties of a solution broker. Her managers did not deny that she had been able to do this, and to perform her former solution broker duties to their satisfaction, but they said that they thought that this would not have been possible once all solution broker duties were allotted to one person. Ms Backhous disputed their opinion, but did not point to any reason which persuaded me not to accept her managers’ opinions as not being genuinely held. Indeed, it appeared to me that their opinions were very rationally explained, and were probably correct. On my assessment of the evidence, this would not have been an acceptable solution to the operational and budgetary demands on the managers at the relevant times in January and February 2009. I find that they did not seriously contemplate this option, for the reasons which they explained in their evidence. Those reasons made no reference to her union position and activities.
There has been no challenge by the applicants to the reasons for the directives which required the OATSIH NSW branch to reduce staff effort directed at solution broker activities. I find that the reasons for these directives were entirely unrelated to Ms Backhous’ union position and activities, even if I accept the possibility that the relevant DoHA senior officers were aware of the demands on her time from those activities, and were aware that their directives might adversely affect her current position as a solution broker in the manner which eventuated.
I am therefore affirmatively satisfied that the actions of Ms Backhous’ employer of which she complains did not occur because of a reason prohibited under s.793, nor for reasons including a prohibited reason. The applicants have therefore failed to establish the alleged contravention of s.792, and I must dismiss their application.

I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Michael Abood

Date: 29 May 2009