C2002/436, Transcript of Proceedings [2002] AIRCTrans 2520 (5 July 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
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TRANSCRIPT OF PROCEEDINGS

O/N VT04609
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SMITH

C2002/436

AUSTRALIAN MUNICIPAL,
ADMINISTRATIVE, CLERICAL
AND SERVICES UNION

and

AUSTRALIAN TAXATION OFFICE
and OTHERS

Application under section 170LW of the Act
for settlement of a dispute re the alleged
refusal of The Australian Taxation Office
to refer an individual employee dispute to
the AIRC in accordance with clause 122.5
of the Agreement

MELBOURNE

10.14 AM, THURSDAY, 20 JUNE 2002

Continued from 28.2.02

PN516

THE COMMISSIONER: Any change of appearances?

PN517

MR K. FAROUQUE: I seek leave to appear on behalf of the applicant.

PN518

MR D. MURPHY: I seek leave to appear on behalf of the respondent.

PN519

THE COMMISSIONER: Thank you. Leave is granted in both cases. Now, we have sought to conciliate this matter and, to my regret, failed to do so. So has there been any discussion between counsel as to how they see the matter progressing today?

PN520

MR FAROUQUE: We have had some short discussions with Mr Murphy before the matter started in relation to, perhaps, matters which could be the subject of some agreement between the parties. It was very shortly before the Commission came on the Bench. I am not sure as to what view Mr Murphy has, but there might be some utility in some further discussions between us about that matter to truncate the need for evidence to be called and the like. A further half an hour might be of some assistance.

PN521

THE COMMISSIONER: All right. Could I just make an observation as to a possible approach, and I don't put it as a fixed view. It occurs to me that this matter arises under section 170LW of the Act, and one of the matters that I would be testing is the directions given to Mr Lapidos, and how it is said by the ASU that the direction does not reflect a proper application of the agreement, that each direction does not reflect a proper application of the agreement, because that is, as I see the generic aspect of this case, what is the proper application of the agreement.

PN522

MR FAROUQUE: If the Commission pleases.

PN523

THE COMMISSIONER: Are you to content to have another 15 minutes, Mr Murphy, with Mr Farouque?

PN524

MR MURPHY: Yes, I think 15 minutes may assist.

PN525

THE COMMISSIONER: Very well, I will adjourn for 15 minutes.

SHORT ADJOURNMENT [10.16am]

RESUMED [10.44am]

PN526

THE COMMISSIONER: Yes, Mr Farouque.

PN527

MR FAROUQUE: If the Commission pleases, I have had some discussions with my learned friend, Mr Murphy. It appears that we have been unable to come to some agreement on common matters, so I think we will simply have to proceed on the basis of the contents as they are filed on the part of the applicant.

PN528

THE COMMISSIONER: Very well.

PN529

MR FAROUQUE: Does the Commission have a copy of the contentions?

PN530

THE COMMISSIONER: I will mark those, will I, just to make sure I am identifying them?

PN531

MR FAROUQUE: Yes, Commissioner.

EXHIBIT #ASU3 22 PAGES OF CONTENTIONS DATED 06/05/2002

PN532

MR FAROUQUE: The contentions refer to attachments A and B. I am not certain whether they are actually appended to the copy that was forwarded to the Commission.

PN533

THE COMMISSIONER: Well, there are two letters, are there, one to Mr Lapidos handed to him on 1 December 2000.

PN534

MR FAROUQUE: That is right, yes.

PN535

THE COMMISSIONER: And the second document is dated 8 May 2001 to Mr Lapidos.

PN536

MR FAROUQUE: Yes, I think that was the revised directions in relation to occupational health and safety matters of Mr Dodson. That is the material fundamentally relied upon on behalf of the applicant. I also have with me a copy of the industrial instruments which are referred to in the contentions, including the two occupational health and safety agreements referred to there. I have given a copy to my learned friend, and I will just hand them up now. I have got a copy for your associate as well if that would be of some assistance.

PN537

THE COMMISSIONER: Thank you.

PN538

MR FAROUQUE: Further to that, Commissioner, in our contentions there is an extract of the findings of the Merit Protection Commissioner in relation to a review sought by Mr Lapidos. For the sake of completeness - and I am certain this is a document which my learned friend has seen or had - I just want to hand this up to the Commission as well.

PN539

THE COMMISSIONER: Yes, thank you. That has already been marked as ASU2.

PN540

MR FAROUQUE: Has it?

PN541

THE COMMISSIONER: Yes, it has already been tendered.

PN542

MR FAROUQUE: It is already in evidence before the Commission. If the Commission pleases, at this stage the applicant doesn't propose to call any additional evidence other than that appended to the documents and handed up to the Commission. What I propose, Commissioner, is to go through the contentions on behalf of the ASU and refer to the particular provisions of the agreement which we rely on as founding the basis for the matters set out. Has the Commission had an opportunity to read the contentions already?

PN543

THE COMMISSIONER: Yes.

PN544

MR FAROUQUE: Thank you, Commissioner.

PN545

THE COMMISSIONER: I don't ask you to read them, you can just draw my attention to - - -

PN546

MR FAROUQUE: I will draw your attention to specific parts, Commissioner. The first matter that the applicant relies on is an evident failure as recorded in the findings of the MPC to consult with the applicant in the making of the December 2000 directions. Now, if the Commission pleases, the obligation to consult is referred to in the agreement. Consultation is defined in the 2000 and also the 2001 agreement as recorded in paragraph 26 of my contentions in the terms that consultation is the sharing of information and discussing the issues before a decision is made by a relevant manager.

PN547

Clause 120 of the 2000 certified agreement specifies - and the comparable clause of the 2001 agreement is in materially identical terms - that consultative arrangements should be based on certain principles. Particular emphasis is placed by the applicant in relation to paragraph 120 - clause 3, subsection (d). That is recorded in clause 27 of the applicant's contention, that relevant provision.

PN548

THE COMMISSIONER: Just a moment, clause 120 of the certified agreement. And 120.3(d), did you say?

PN549

MR FAROUQUE: Yes. Managers are accountable for their area, but wherever practicable employees should have an opportunity to contribute their views before managers take decisions that will significantly affect them. That is the material part of the clause which the applicant relies on, and it is informed by the preceding provisions, to the effect that there should be a direct relationship between employees and the employer, and paragraphs (b) and (c) specify further matters. But the emphasis is on a direct relationship between an employer and employees, and consultation to be taking place in that relevant context.

PN550

Now, it is evident that the circumstance where - there is a qualification as to the obligation to consult, and that is where it is practicable. And I want to hand up a definition of that term. It is one which the Commission no doubt is well familiar with in the context of the TCR provisions and the like, but the definition of that term is contained in the Macquarie Concise Dictionary in the Online edition, and it defines practicable - - -

MFI #4 EXTRACT FROM MACQUARIE DICTIONARY DEFINING PRACTICABLE

PN551

MR FAROUQUE: It defines practicable in the terms of:

PN552

Capable of being put into practice, done or effected, with available means, feasible, capable of being used or traversed.

PN553

That is the qualification, the only relevant qualification, in the context of an employer's obligation to consult with an employee about decisions that will affect them, and that is the relevant qualification, Commissioner; that is the only qualification in that particular provision. The consultation obligation, as we have recounted in paragraph 28 of our contentions is one which is consistent with the APSs own values which the ATO subscribes to or is obliged to abide by.

PN554

Now, we have recounted in paragraph 29 about what we rely on as the deficiency in consultation. It is evident from the respondent's contentions that it doesn't contest that it commenced deliberations about the directions in about April 2000. We submit that there was no material information provided to Mr Lapidos about the issuing of the directions. I don't think it is in dispute between the parties that Mr Lapidos was not informed about the purpose of the 1 December 2000 meeting at which Mr Charles issued the direction.

PN555

I don't think it is at issue between the parties that Mr Charles came to the meeting on 1 December 2000 where the material directions were issued with a completed copy, in complete form, which he handed to Mr Lapidos at that particular meeting, and that in effect Mr Lapidos was not given any opportunity to provide Mr Charles with any relevant information or engage in any discussion in respect of the terms of the directions being provided to him prior to that particular meeting.

PN556

It is evident in the findings of the MPC, Commissioner, that there was never any presentation of the directions in any draft form. They were presented to Mr Lapidos as a complete package, a concluded direction so to speak. So we rely on that particular history as a matter whereby the ATO has failed to consult with Mr Lapidos, inconsistent with its obligation under section 123, paragraph (d) of the enterprise agreement, inconsistent with that obligation. It failed to consult with Mr Lapidos about the December 2000 directions. We rely on that particular event.

PN557

Further, Commissioner, we refer to the statement of reasons of Mr Charles which are appended in the material filed on behalf of the respondent at document number 1. If I could just take the Commission to that document; does the Commission have that?

PN558

THE COMMISSIONER: Yes.

PN559

MR FAROUQUE: Section (b) of that particular statement of reasons recounts the evidence or material upon which findings were based which resulted in the directions. That recounts 12 matters which Mr Charles relied on. That does not refer to any consultation with Mr Lapidos, the material upon which the findings giving rise to the directions. So, in our submission, it is evident on the respondent's own material that there has been an evident and apparent deficiency inconsistent with the ATOs obligations under paragraph 123(d) of the certified agreement to consult with Mr Lapidos.

PN560

And evidently it was a circumstance where it was practicable for the ATO to consult with Mr Lapidos, because they commenced developing these directions on their own account in April 2000. They were issued in December 2000, Commissioner. In my submission, it was entirely practicable, given that extended time-frame, for the ATO to speak to Mr Lapidos, obtain his views as to the directions that they were proposing to make, which were a significant alteration to what, in effect, constituted a working arrangement which had existed at least from October 1999.

PN561

Now, the fact of that working arrangement is evident in the instructions to the directions which are, I think, schedule A to our contentions, or document 20 of the respondent's contentions. If the Commission would like to refer to those particular documents, that is a copy of the actual directions and their accompanying instructions to Mr Lapidos from Mr Charles. This was the completed or concluded document to which I have referred. It was given to Mr Lapidos at the 1 December 2000 meeting. Now, I would like to refer the Commission first of all to paragraph 2 of that document on page 1, where it says:

PN562

In keeping with freedom of association principles, the ATO supports your right to be an office-holder in the union of your choice and to engage in lawful activities on behalf of that union. For this reason -

PN563

and I particularly emphasise this part, and its observation of the events which have preceded it -

PN564

you have been allowed considerable latitude in your work arrangements to ensure that provisions within the Workplace Relations Act which safeguard your right to participate in union activities have not been infringed.

PN565

That is a material observation about events which have preceded December 2000. I take the Commission now to paragraph 4 of that letter where is recounted the following:

PN566

Unfortunately the amount of time that you are presently devoting to union activities on an ad hoc basis during normal business hours and your apparent unwillingness to apply yourself diligently to meeting your obligations as an ATO employee is placing an extra burden on your managers and workmates.

PN567

The material part of that passage that we rely on is again a reference to events which precede the issuing of these directions, that Mr Lapidos is devoting time to union activities on an ad hoc basis during normal business hours. That was the state of play.

PN568

THE COMMISSIONER: Do you go so far as to say that your reference in the second paragraph where the employer has, in their terms, allowed considerable latitude to ensure that the provisions of the Act and the rights to participate are not infringed? Do you go so far as to say that that is then compromised by the quote that you have made in the fourth paragraph, that they seek to limit those rights by imposing obligations inconsistent with those rights?

PN569

MR FAROUQUE: We make that contention in part of our submissions in relation to a point raised about the freedom of association provisions of the certified agreement about the entitlement expressly stated in that agreement to the effect that the employee is free to choose to participate in legitimate union activities, and we have recounted in the contentions the manner in which these directions compromised that right. The breadth of these directions, Commissioner, are very, very broad in their operation. They are not discrete, they have a very broad operation in relation to Mr Lapidos's employment.

PN570

I will certainly come to that part of the submission, because it is one that we certainly do rely on, and we do, in a sense, rely on this passage as some tacit admission on the part of the respondent about the manner in which it has altered Mr Lapidos's entitlements. We also refer the Commission in the context of recording the respondent's own understanding of the arrangement which existed prior to December 2000 -paragraph 5 of the instructions - and that is to this effect:

PN571

The point has been reached where the time you are taking for your union role is virtually a full-time commitment. While the ATO would favourably consider leave of absence on a full-time basis, we can no longer accommodate your demands for unlimited time to engage in ad hoc activities not related to your employment.

PN572

Now it is evident, in my submission, from that particular paragraph on the part of the respondent - on the part of Mr Charles - Mr Charles is basically recording the pre-existing situation. The ATO had until this time, until December 2000, accommodated Mr Lapidos's requests or demands - however it be put - for time to engage in ad hoc activities on behalf of the ASU. That was the accommodation made on the part of the ATO. It is evident from the findings of the MPC, which I have recounted at, I think, about paragraph 31 of the witness statement. What Mr Charles is expressing there is entirely consistent with the findings of the MPC, at paragraph 31 of my contentions where I have recounted a part of the MPCs reasons, and I refer to paragraph 15 of the MPCs reasons, which are:

PN573

Given that Mr Lapidos has been allowed to operate in the workplace on the basis of notifications of his involvement in union activities, and allowed to submit to his supervisor a monthly statement of his actual attendance absences for pay purposes. There is some substance in the argument that the change to his regimen in terms of the introduction of the 12 hours per month, capping of leave without pay, the imposition of restrictions on his participation in consultative committees outside of his business life, and his use of the ATO e-mail system, represented a significant alteration of Mr Lapidos's working arrangements.

PN574

So there we have it. We have the Tax Office in its letter of 1 December 2000 to Mr Lapidos basically recounting the nature of the previous arrangement, the accommodation that it had made to him, to his requests or demands for unlimited time to deal with matters. That had been granted and freely provided. They may not have been happy from time to time, or certain personnel of the ATO may not have been happy from time to time with that particular arrangement, but the fact is it was present, apparent and applied. It is recorded in Mr Charles's letter.

PN575

THE COMMISSIONER: You would go so far as to say though, would you, that that practice was consistent with the agreement?

PN576

MR FAROUQUE: Well, what we say is that - - -

PN577

THE COMMISSIONER: Otherwise what we are talking about is procedure rather than substantive application of the agreement, aren't we?

PN578

MR FAROUQUE: We would say it is a practice which is consistent with the agreement in so far as the agreement provides for miscellaneous leave to be afforded to an employee; I think it is paragraph 46 of the agreement that makes that provision. But that was the manner in which leave was provided, and we say that the change effected by these December 2000 directions constituted a matter, a significant alteration in what had till that time been Mr Lapidos's understanding or arrangement with the employer, a significant alteration to that fact.

[11.09am

PN579

It fundamentally revoked or compromised that previous arrangement. We say that that is a matter which pursuant to clause 123(d) of the certified agreement, the December 2000 directions should have been the subject of proper consultation with Mr Lapidos. And in our submission, that is an evident and apparent deficiency, especially when you look at the time frame, April 2000 to December 2000. They started developing them in April 2000, they issued them to him in December 2000. It was eminently practicable for the respondent to consult with him about the change to his working arrangements, and that in my submission is a significant, that absence of that consultation is a significant issue, a significant defect, in the issuing of these particular directions.

PN580

Now, this isn't just a matter which is, you know, it wouldn't have made any difference or there is nothing that Mr Lapidos, no useful information that Mr Lapidos could have provided to the ATO about these subjects. Mr Lapidos would have been the best person to provide the ATO with information about what his obligations, what his - what demands he had on his time in terms of his obligation - in terms of his role as an official of the ASU, as a member of occupational health and safety committees, as a participant in consultative forums.

PN581

He would have been very well placed, he was very well placed to provide information to them about what the nature of those particular demands was for him. So, consultation here is not something which is just simply a hollow matter. It is a very real issue. It is a very real issue in the context where the ATO itself has raised the bar to the level that it has. It has said, we will wherever practicable consult with employees, and we say that in these circumstances the deficiency is apparent and one which taints the whole of the direction.

PN582

Now, the deficiency in relation to consultation does not merely affect the 1 December 2000 directions. They also have some bearing or effect on the variation to the directions issued by Mr Dodson on about 8 May 2000 which are schedule B to the applicant's contentions. It is evident that at the time that those directions were issued there were - the applicable industrial instrument to occupational health and safety was the 1997 Occupational Health and Safety Agreement. That matter is not in issue between the parties.

PN583

At that time the actual practice in the Tax Office had been that the branch OH and S committees which had been constituted under the December - under the 1997 Occupational Health and Safety Agreement had in effect been abandoned in favour of a business line occupational health and safety committees to properly reflect the particular occupational health and safety needs of the ATO. So the actual state of play on the ground regardless of what the terms of the agreement were was that branch line - sorry, business line occupational health and safety committees as distinct from the branch occupational health and safety committees were the operable forum by which occupational health and safety issues were being advanced.

PN584

At the time that the - when the directions were issued, the 8 May 2001 directions which replaced earlier deficient, admittedly I think the respondent doesn't have any issue about this, replaces the deficient parts of the December 2000 occupational health and safety part of those directions. When the 8 May 2001 directions were issued they referred solely to branch occupational health and safety committees, they didn't refer to Mr Lapidos' entitlement to attend business line occupational health and safety committees which were the actual state of play on the ground.

PN585

Now, Mr Lapidos would have been once again in a useful position to inform the ATO about that relevant deficiency in its directions if he had been - if the matter had been discussed with him, if he had been consulted about the terms of the proposed - of the variation before they had been made, he would have been in a good position to provide the ATO with information about that state of play. Now, as it comes to pass, once the new occupational health and safety agreement came into place that properly embodied the state of play on the ground, so to speak, the fact that occupational health and safety fora was the business line occupational health and safety committees.

PN586

So, in effect, we say that the failure to consult is something which taints the whole of the directions, and it is not a hollow matter. It is a very real matter. It is a matter which Mr Lapidos would have been well placed to advise the ATO about what in effect - provide them with feedback or input into the matters that the ATO proposed. The ATO never afforded him that opportunity, and we say that is a deficiency which once again taints the whole of the directions. Now, if the Commission pleases, I - - -

PN587

THE COMMISSIONER: Does the ATO remain blissfully ignorant?

PN588

MR FAROUQUE: Of?

PN589

THE COMMISSIONER: Mr Lapidos's views about the directions?

PN590

MR FAROUQUE: Mr Lapidos has - well, subsequent to the event, Mr Lapidos I think contested the directions in - to provide the mechanism of the MPC.

PN591

THE COMMISSIONER: Yes.

PN592

MR FAROUQUE: He lodged, I understand, a grievance about the directions and that was referred to the MPC. The matter was the subject of internal grievance which was dealt with on the papers, so to speak, and then referred by Mr Lapidos - he was dissatisfied with the outcome, to the MPC, which resulted in the document which is I think ASU2 before the Commission. As I apprehend it, in effect we say that substantially they weren't afforded a - he wasn't afforded an opportunity to detail his particular issues in relation to the matters which are now being raised with the Commission, and we have raised the particular issues in the context of this particular submission now.

PN593

Regardless of that point, Commissioner, we say that even if he were and the respondent makes out that he was afforded some opportunity to provide some feed back after the fact, after the decision was made, that does not cure or remedy the deficiency in terms of the defect because - - -

PN594

THE COMMISSIONER: It is a bit like natural justice, isn't it? You can cure it.

PN595

MR FAROUQUE: Well, yes. Yes. You know, you are sacked for, you know, hitting the fellow worker and then - - -

PN596

THE COMMISSIONER: We are not talking about - we are not - you know, what is the prejudice that currently exists? There are directions in place.

PN597

MR FAROUQUE: Yes, there are directions in place, Commissioner.

PN598

THE COMMISSIONER: Yes. And no action has been taken on those yet.

PN599

MR FAROUQUE: They have been the subject - there have been charges, I understand, being made against Mr Lapidos.

PN600

THE COMMISSIONER: Yes, but no action has been taken on them.

PN601

MR FAROUQUE: They haven't been - - -

PN602

THE COMMISSIONER: Consequent - well, consequent upon a direction that I made and then subsequently varied.

PN603

MR FAROUQUE: They haven't been progressed.

PN604

THE COMMISSIONER: No.

PN605

MR FAROUQUE: I don't understand, no, other than the fact that charges have been - - -

PN606

THE COMMISSIONER: And your material contains within it all of the views that the union would wish to put as to why the directions are inconsistent with the proper application of the agreement.

PN607

MR FAROUQUE: That is right, that is right, Commissioner. They substantially recount the basis upon which we put those propositions.

PN608

THE COMMISSIONER: Yes, I follow you. Thank you.

PN609

MR FAROUQUE: But we put the consultation point as one affecting the whole of the directions in their entirety.

PN610

THE COMMISSIONER: Yes.

PN611

MR FAROUQUE: Now, Commissioner, the obligation to consult is not one which we say can be relevantly cured after the fact. It is a situation where by the ATOs own standard which it has devised and agreed with the ASU and the CPSU in the context of the enterprise agreements, employees should have an opportunity to contribute their views before managers take their decisions. This was a very significant, as we say, alteration to an existing arrangement with Mr Lapidos, and he wasn't given an opportunity to contribute his views prior to that decision being made.

PN612

It amongst other things imposed a 12-hour per month cap on his participation in union activities for leave without pay purposes when there had in fact prior to that been no such cap. Those were significant changes in the arrangements, Commissioner, and ones which should have been the consultation, ones where consultation was indeed very practicable. In terms of the other matters which we rely on, we refer to the obligation under the 2000 and 2001 certified agreement to provide employees who participate in consultative and business forums with a suitable facilities packages.

PN613

The relevant provision of the agreements is recounted at paragraph 35 of the ASU contentions. We say that a suitable facilities package will necessarily involve the ATO allowing an employee paid time to participate in consultative forums, a matter which Mr Lapidos frequently attends, he frequently attends these consultative forums which are established by the ATO. The directions don't make any specific accommodation for Mr Lapidos to be involved in consultative forums and are treated by the ATO as general business, union business subjected to the directions and to the 12-hour per month cap on unpaid leave.

PN614

So, we submit that in these circumstances by failing to make any specific accommodation for Mr Lapidos' attendance at consultative and business forums which it would be appropriate to do so, the directions have the effect that he has not been provided with a suitable facilities package to give him the necessary support to participate in such forums. And we have recounted those contentions up to paragraph 41 of the ASU contentions.

PN615

Now, a very significant matter, Commissioner, in the context of these directions is those which provide that under ATO terms and conditions of employment you do not have particular entitlement to paid time to carry out union business. There is a further direction to the effect that:

PN616

...unless you apply in writing on a case by case basis and receive approval from me...

PN617

that is Mr Charles -

PN618

...or a person authorised by me you must not perform activities on behalf of the ASU during paid work time.

PN619

Now, these are very, very broad directions. They have very significant, extensive operations in relation to Mr Lapidos' employment. And we said the terms of those directions, in effect, are inconsistent with certain freedom of association provisions which the ATO has itself agreed to in the context of the certified agreement.

PN620

THE COMMISSIONER: Now, can you take me to the particular direction first?

PN621

MR FAROUQUE: Yes, Commissioner, I will do that. They are the first two directions under the General Union Business heading. Have you got those, Commissioner?

PN622

THE COMMISSIONER: Yes, thank you.

PN623

MR FAROUQUE: Those two particular directions effectively prevent Mr Lapidos carrying out any activity, any activity on behalf of the ASU during paid work time unless first permitted by Mr Charles or his delegate. And the manner of the permission is a material one. Mr Lapidos must apply in writing for that permission. So every time he wants to attend to something in relation to the business of the ASU during paid work time he has got to write out an application and submit that. That is the mechanism which the respondent requires Mr Lapidos to avail himself of, to get that permission.

PN624

That mechanism combined with the breadth of those directions, we say, has the effect that Mr Lapidos is not being afforded the opportunity which is preserved by clause 120 of the certified agreements, particularly 120.2 of that agreement which I have recounted in paragraph 46 of my contentions which are, and I will read them out to the Commission:

PN625

Employees are free to choose whether or not to me a member, which organisation to join if they decide to join one and whether or not to participate in any legitimate activities in support of that organisation.

PN626

So there we are. The certified - - -

PN627

THE COMMISSIONER: You say that grants paid leave?

PN628

MR FAROUQUE: No, I don't say that in effect grants paid leave. I don't put it so high. But at paragraph 44 I recount some examples of the type of activities that Mr Lapidos could perform during the paid work time on behalf of the ASU which would be prevented by the breadth in terms of those directions. They would, for example, prevent him from making or receiving a phone call in respect of a union or workplace issue on behalf of the ASU. If somebody called him up, spoke to him about such issues in his capacity as an ASU official. What would Mr Lapidos have to do?

PN629

He would have to - before he could even speak to the person he would have to submit a written application to Mr Charles. That, in my submission, is an entirely untenable arrangement, untenable burden on Mr Lapidos which is inconsistent with the ATO's obligation or the ATO's - Mr Lapidos' right under 122.2 of the certified agreement to participate in legitimate activities in support of the ASU. That would constitute a legitimate activity which Mr Lapidos is prevented from participating in by virtue of the direction.

PN630

Indeed, Mr Lapidos - I don't think it is a matter in any dispute between the parties - from time to time will receive calls from ATO managers or the like about a workplace issue at the tax office. A call in his capacity as a union official. If that was received during paid work time from an ATO member Mr Lapidos would not be able to respond to those matters unless he first sought written - unless he first made application in writing to Mr Charles or his delegate. He wouldn't even be able to take a phone call to that effect.

PN631

Furthermore, he wouldn't be able to speak to another ATO employee or union member about a union issue or grievance on the part of that employee. Those are legitimate activities which Mr Lapidos could well be engaging in during the course of his employment, during paid work time. The effect of the directions is to prevent Mr Lapidos from engaging in those activities, firstly by the breadth of them, of the direction. It prevents that occurring and also by the mechanism by which Mr Lapidos would have to obtain approval for that matter.

PN632

He would have to submit a written application for approval for Mr Charles or his delegate. Now, in my submission, that mechanism is unworkable and basically renders the whole thing in violation of paragraph 120, subparagraph (2) of the certified agreement. If the Commission would just excuse me for a moment?

PN633

THE COMMISSIONER: Yes.

PN634

MR FAROUQUE: I understand that Mr Lapidos has just raised with me the fact that even during paid breaks like morning tea or afternoon tea he wouldn't be able to speak to somebody about these matters because it is during paid work time. That is the breadth of the directions. They are a fundamental violation in the terms in which they are proposed of paragraph 120.2. They are legitimate activities which Mr Lapidos - - -

PN635

THE COMMISSIONER: So it follows, doesn't it, that you say that 120.2 facilitates legitimate union activity during paid working time?

PN636

MR FAROUQUE: Yes, it does, Commissioner, it has that effect, it has that effect. For example, if you take Mr Lapidos outside of the tax office and make him a delegate in a metal shop - - -

PN637

THE COMMISSIONER: Not a good example.

PN638

MR FAROUQUE: Well, what I say is that a person in that capacity - - -

PN639

THE COMMISSIONER: He is told to do it after work or at lunch time.

PN640

MR FAROUQUE: Well, might, during the course of their duties raise with an employer a matter of their activity - of a workplace issue at the workplace. I don't think anybody would dispute that a person acting in that particular manner with their manager or with somebody at the workplace would not be engaging in legitimate union activities. But these directions, in the terms in which they are, completely render ineffective Mr Lapidos' entitlement to participate in legitimate union activities. They are so broad, the mechanism is so unworkable.

PN641

THE COMMISSIONER: What do you say is the interaction, if anything, between the provisions under the Act in relation to right of entry and the terms of the agreement?

PN642

MR FAROUQUE: Well, the provisions under the Act in relation to right of entry certainly would entitle Mr Lapidos to - well, as I - - -

PN643

THE COMMISSIONER: Wouldn't entitle him to do anything during paid time.

PN644

MR FAROUQUE: No, they don't, no. Well, they don't expressly authorise that. I wouldn't go so far as to say that they would prevent it.

PN645

THE COMMISSIONER: No, consensual arrangements are reached.

PN646

MR FAROUQUE: Yes, yes.

PN647

THE COMMISSIONER: But they certainly don't create a right to talk to somebody during paid time.

PN648

MR FAROUQUE: I don't think - unless the terms, particular terms - well, I wouldn't go so far as to say that they create a right to engage - to enter premises, so to speak, during paid work time. I might just have a quick reference to the terms of that particular part.

PN649

THE COMMISSIONER: Yes, of course. Oh, breaks. It talks about breaks so it may include a paid break.

PN650

MR FAROUQUE: Yes, it may include a paid break. If Mr Lapidos was to engage in that during a paid break I think that would be legitimate activities. In any event, in my submission, the matters that - the issues that I have enumerated there constitute legitimate activities. It is a matter, in my submission, Commissioner, of certainly degree and they are incidents or examples - - -

PN651

THE COMMISSIONER: Where is the degree though? Where is the degree? If I follow your submission, any time it is said that it is a legitimate activity there is an entitlement under the agreement to paid leave to pursue that legitimate activity.

PN652

MR FAROUQUE: That would be - - -

PN653

THE COMMISSIONER: That would follow from your argument wouldn't it?

PN654

MR FAROUQUE: Well, it does to some extent, Commissioner, but I don't have to put it that highly to make the point. I have in paragraph 44, for instance, as I have said, enumerated some examples.

PN655

THE COMMISSIONER: We wouldn't be here if it was just paragraph 44.

PN656

MR FAROUQUE: Oh, no, no, no. I wouldn't be - certainly, I understand what the Commission is saying, but we certainly do say that his participation in legitimate activities is compromised and, for example - - -

PN657

THE COMMISSIONER: But where does the degree - you mentioned, you know, "to a degree", and I was just wondering at what stage is it not legitimate?

PN658

MR FAROUQUE: And that brings the point to which I say the importance of consultation is central because if the parties had been able, prior to the issuing of these directions in the terms as, I understand, has been the case with the assistance of the Commission in relation to provisions about entry, a common position could have been reached. Now we have the matter of degree could have been the matter of common understanding between the parties but no, we were never given that chance and so we say that heightens the matter of the consultation issue. But, yes, Commissioner, it may be a matter of degree.

PN659

In every circumstance there comes a point, no doubt, where an employer can properly say, well, the extent of the activities is not legitimate. We don't see that that but - we can see that but what we say is that these directions by their broad effect, by the breadth of their terms renders ineffective any activity by Mr Lapidos during paid work time, any legitimate activity. It prevents him from engaging in any legitimate activities on behalf of the ASU in support of that organisation.

[11.35am]

PN660

THE COMMISSIONER: Wasn't there a 12-hour cap, I thought.

PN661

MR FAROUQUE: There is a 12-hour cap, yes.

PN662

THE COMMISSIONER: Is that the degree or is the degree somewhere else?

PN663

MR FAROUQUE: Well, there may, as I say, Commissioner, be circumstances where Mr Lapidos during paid work time would need to respond or deal with particular matters which arose in an unplanned fashion, be it from contact by the ATO, be it from somebody ringing him up at the workplace. Somebody might ring up a delegate at any workplace and say I have got this issue, can you speak to the boss? Those, in my submission, are legitimate activities which he is prevented from undertaking.

PN664

Those rights are extinguished by the direction, Commissioner, and as I say, the right for him to participate in those activities is an unfettered right in the sense that he is free to choose to participate in those activities or not. It is not for the matter of Mr Charles or his delegate, in effect, to say on this particular occasion, I permit you to participate in that particular activity or not. The mechanism, as I say, renders the whole thing unworkable. We also refer to the equity and fair treatment point, which is raised at clause 113 subclause (1) of the certified agreement.

PN665

THE COMMISSIONER: Just a moment. I will go to it. Yes.

PN666

MR FAROUQUE: Which are that all employees are entitled to be treated fairly and equitably. No other ATO employee is subjected to such restrictive treatment as Mr Lapidos. Now, I know my learned friend will say nobody else has availed themselves of the benefits that Mr Lapidos has up to the issuing of these directions but that is not the point. The point is that Mr Lapidos should not receive any lesser benefit than any other employee in terms of his entitlement to participate in activities.

PN667

Now, if the ATO says, well, you are availing yourself of more than any other employee in terms of participation in union activities. No other employee have we had these troubles. So that does not justify reversing matters to the other extreme so say, well, you have lesser rights than any other employee at the ATO to participate in union activities. As I say, I don't think it would be at any issue between the parties that other employees from time to time will participate - perform union activities during paid work time at the ATO in the nature of those I have described in paragraph 44, for instance.

PN668

Mr Lapidos, by the effect of these directions, has lesser right than any other employee to participate in such activities. We say that in these circumstances he is not being treated with the equity, with the fairness that the agreement itself demands of the ATO. As I say, the circumstances which existed before December 2000 did not justify the extreme reverse course that the ATO took. Mr Lapidos should not be subjected to any more or less than other employees in terms of the accommodations that the ATO provides to them.

PN669

We have also recounted in paragraphs 51 to 55 the matter of the fact that insofar as the ATO is motivated - or the operative consideration for its decision is a dislike of the manner in which Mr Lapidos performed his duties as an ASU official, we submit that the conduct constitutes action for a prohibited reason outlined in section 298K and L of the Workplace Relations Act and we refer to those provisions as well. Further, Commissioner, in terms of the - there is a further direction which I want to refer the Commission to, that is the direction restricting use of ATO facilities. That, if the Commission will see, is referred to in the third direction:

PN670

...except with my written approval or the approval of a person authorised by me, you are not to use ATO facilities or equipment to carry out activities on behalf of the ASU at any time.

PN671

Now, in effect, this direction would prevent Mr Lapidos using an ATO telephone or a meeting room at any time in relation to his duties on behalf of the ASU. He wouldn't be able to - if the directions have effect, without first receiving written permission from Mr Charles, he would not be able to use a telephone on any matter on behalf of the ASU. That is the literal effect of these directions, Commissioner. If somebody rang him on his work telephone and he answered it and said I want to speak to you about this ASU issue, Mr Lapidos would be in breach of the directions. That is because of their onerous and broad effect and broad terms.

PN672

He wouldn't for instance, for example, during his paid meal break, be able to adjourn to a room and speak to an employee of the ATO about matters related to the ASU on behalf of the ASU. He would be prevented from that course. In fact, the directions are so broad that they would prevent him from putting up any ASU notices on any ATO noticeboards. That is how broad these directions are in terms of their operation.

PN673

Commissioner, they are unprecedented in their terms and we say that this particular provision, this particular direction, is also so broad that it violates clause 120.2 of the certified agreement, being Mr Lapidos' right to participate in legitimate activities in support of the ASU, and I have made that submission in paragraph 60 of my contentions. Once again, we say that this particular direction is inconsistent with the ATOs obligation to treat Mr Lapidos with fairness and equity because other employees are afforded the opportunity to undertake the type of activities of the examples that I have referred to in paragraph 59.

PN674

So, in effect, Mr Lapidos, to do any of the type of activities - and these are just examples of the type of activities, Commissioner, he would have to get written approval from Mr Charles or a person authorised by him. Now, that just makes the whole thing - once again, that out which the respondent might try to rely on makes the whole thing completely unworkable and, in effect, prevents him from engaging in proper, legitimate activities which are evidently authorised by the certified agreement, once again, another example of the directions being so broad as to violate the terms of the certified agreement.

PN675

Now, there is a further direction that - there is a further matter which we refer to and that is the fact that the particular direction that I have just referred the Commission to would prohibit Mr Lapidos creating or distributing union messages or bulletins via the ATO e-mail system except with the written approval of Mr Charles or a person authorised by him. Now, this, Commissioner, would once again put Mr Lapidos in a different position to the permission that the ATO affords other employees in relation to the use of the e-mail system when distributing e-mails on behalf of workplace unions.

PN676

That practice is embodied in the text of the letter which I have extracted in paragraph 64 of my contentions, which is to this effect:

PN677

The ATO is prepared to allow the ASU to direct its e-mail to delegates in the workplace, who may, in their own time, refer them on to members or, alternatively, place them in folders.

PN678

Now, in my submission, the practice referred to there is one which Mr Lapidos not be able to engage in. He wouldn't be able to distribute messages to delegates. The direction which I have referred to prevents Mr Lapidos from doing so. He is not free to choose and he is not free to participate in that apparently legitimate activity which the ATO permits. He is put in a different position to other employees.

PN679

Further, we say that the use of the e-mail system that Mr Lapidos would need to avail himself of is part of a suitable facilities package which, as an employee member of consultative forums - what is the meaning of consultation, Commissioner, if Mr Lapidos can't inform other employees as to the subject matter of consultation in an unfettered fashion, without the ATO saying, you can't say that, that is wrong, we are not letting you say that, which is basically what the ATO would assume by virtue of the permission mechanism to which I have referred. And those submissions I have recounted in paragraph 68 to 69 of my contentions.

PN680

Now, I did refer the Commission to the fact of the noticeboards. The certified agreement protects the right of employees and their representatives - Mr Lapidos, undoubtedly, by any terms, is those, is an employee of the ATO and a representative of employees.

PN681

THE COMMISSIONER: On your instructions, has the ATO advised the ASU that any of its practices or rights are constrained generally by the directions given to Mr Lapidos?

PN682

MR FAROUQUE: I will just take some instructions in relation to that matter, Commissioner. As we apprehend it, the directions only apply - well, they apply to Mr Lapidos. He is also, obviously, the secretary of the ASU and holds that significant office of that organisation and we say that, insofar as they restrict Mr Lapidos' right, they impinge significantly on the ASUs capacity to communicate in that fashion, he being a significant and important office holder of the union.

PN683

Now, I have recounted the fact that the breadth of the directions is so broad that Mr Lapidos would be unable, without written permission from Mr Charles or his delegate, to even use ATO noticeboards, which right is specifically preserved in the terms of the certified agreement, which preserves for Mr Lapidos a right to access official noticeboards but - - -

PN684

THE COMMISSIONER: What clause is that?

PN685

MR FAROUQUE: That is clause 124 of the certified agreement. I have recounted that clause at paragraph 70 of my contentions. In relation to the occupational health and safety directions, Commissioner, I have recounted the subject matter of that earlier. I have recounted there the sequence of events and when the business line OH and S committees came into operation, the fact that the amended directions of the - there refer to the now defunct branch occupational health and safety committees and the fact that the directions fail to make formal provision of Mr Lapidos' attendance at the currently constituted forum, which is the business line occupational health and safety committees.

PN686

Having regard to these matters, Commissioner, as I have said, that the absence of consultation is a matter which taints the whole of the directions. I have raised particular matters about significant parts of the directions. We submit that the Commission should set aside the directions, establish a framework by which the parties can have consultation in terms of the terms of the directions or any directions that the ATO proposes to issue. We are happy for that to occur under the auspices of the Commission. We are pleased for that to occur in a short time frame and believe that is an appropriate course for the matter to be remedied. If the Commission please, that concludes the points that I wish to bring before the Commission.

PN687

THE COMMISSIONER: Thanks, Mr Farouque. Mr Murphy, do you need a short break to arrange your papers? No?

PN688

MR MURPHY: Well, I will be some time, Commissioner. Commissioner, 1996 was a significant year because that was the year that the old Industrial Relations Act was renamed the Workplace Relations Act and that was when the Freedom of Association provisions were inserted into the Act. It was in those provisions that a level playing field was created in relation to union activities and membership within employers. So there was a system of what is effectively neutrality established.

PN689

Under the Act, employers and employees were free - employees were free to be members of union - of registered organisations and they were also free to not be members. That has been recognised in the Act, for example, by section 285C, the permit provisions, that officers of organisations have to obtain permission to engage in workplace discussions. Now, the Freedom of Association provisions of the Act are reflected in clause 120 of the certified agreement, the 2000-2001 certified agreement, and the Commission - the ATO recognises in that that employees are free to join or not join a registered organisation and if they decide to join one, and whether or not to participate in any legitimate activities in support of that organisation.

PN690

Now, those words, "participate in any legitimate activities in support of that organisation" are very important because one has to ask what legitimate activities of an organisation are recognised in the Act or in the agreement? So, to ask a rhetorical question, is there anywhere in the agreement that says that a person who is an elected official of a registered organisation is entitled to unlimited LWOP? The answer is no. Is there anything in the agreement which says that a person who is a member of a union or a workplace representative of a union is entitled to use ATO facilities or resources for union purposes? The answer is no.

PN691

Is there anywhere in the agreement that says that an ATO employee who happens to be secretary of a registered organisation is entitled in paid work time to carry on the business of that union? The answer is no. Is there any provision in the certified agreement which says that a member of the ATO staff who happens also to hold an office in a union is under no obligation to maintain their skills, to participate in training that everyone else in the work team is expected to participate in, is entitled to unlimited LWOP without regard to the operational requirements of the team? The answer is no.

PN692

What is in the agreement is that, under section 120.7, where employees are involved in a consultative or business forum, they will be provided with a suitable facilities package to give them the necessary support. What is also in the agreement is that the ATO agrees in a number of the clauses that it will consult with employees or their organisations in relation to various workplace matters, and I would like to take you to a few of them. So if you look at clause 25.17, which relates to changes in standard hours, if there is to be a change in the standard hours of work, which were 8.30 till 12.30, 1.30 till 4.51, then the Commissioner, will consult with affected employees and their representatives, including unions if it is proposed.

PN693

Another clause - I just put them on for the transcript, but the field allowance policy under section 76A.20, again there is an undertaking to consult with the unions - with employees or their representatives before a change in a policy. Relocation of offices, clause 88.1, if you are going to move all the staff from Moonee Ponds to Box Hill or vice versa, their representatives will be consulted about a major move like that. 90.2, a performance development system, there will be consultation about that with employees and their representatives.

PN694

THE COMMISSIONER: Of course, the issue raised by Mr Farouque is that even in those circumstances if Mr Lapidos was to be the person with whom consultation took place, he would have to seek written approval to be able to participate in that consultation.

PN695

MR MURPHY: Well, we can come to that but the point about - that is what really is missing from the analysis of my learned friend and he fails to recognise that there has got to be reciprocity here. There has got to be mutuality. There has got to be cooperation in any employment relationship. We haven't heard a single word of Mr Lapidos being involved in that mutual side of consultation or any activity.

[12noon]

PN696

THE COMMISSIONER: Well, in that regard, the letter that gave rise to the directions on 1 December - - -

PN697

MR MURPHY: Yes. That letter is very significant because - - -

PN698

THE COMMISSIONER: That gives a purpose, the purpose being the balance.

PN699

MR MURPHY: That is right. So there are two aspects to the letter of 1 December. In a sense this is a stop and flow argument. The letter proposes these directions and says - the letter and the accompanying minute - says that: "I am prepared to discuss the particular aspect of these with you". First of all it explains the need for the directions. Then, if you go across to the file note that accompanied it - before we do that, Commissioner, the letter is important because it indicates what I have put in the submission, that the position as at 1 December 2000 was unsustainable.

PN700

It was unsustainable from the point of view of the ATO and the point of view of Mr Lapidos, because Mr Lapidos was unemployable as an ATO APS4. He couldn't do the work of an APS4 because he literally hadn't done any APS4 work for 12 months at that point, and ATO23 will reveal that to you. He had been on LWOP effectively for the whole of calendar year 2000. Just flick open any page of ATO23, Commissioner, and you will have a - and you will see that proposition. He is either attending an OH and S meeting or he is on leave without pay. There might be a couple of days that I have missed.

PN701

But that was the position, that effectively he had been absent, AWOL - he had - he was not present. And we admit that he had been given - that these periods that he was on leave had been approved, but Mr Lapidos has not been game to jump in the witness box in his case, to deny what we put in our contentions and annexed the statements, the diary notes of Tracey Yannopoulos, that she was trying to redress this issue during calendar 2000, and this is fundamental to the consultation issue.

PN702

Mr Lapidos had held this position since 1995, or back to 1991. We have laid, Commissioner, a documentary trail to indicate that for a period of four years Mr Lapidos has not been prepared to face the reality that there was a fundamental conflict between him engaging as an ATO officer and him with his union hat on, as the secretary of the ASU, ATO Branch. And if you want a clear and obvious indication of Mr Lapidos' attitude, I just invite you to look at ATO15. In fact, before you go to ATO15, it is probably best to go back a couple of exhibits and have a look at ATO - - -

PN703

THE COMMISSIONER: I think I will mark this document as a whole.

PN704

MR MURPHY: Yes, I would like it marked.

EXHIBIT #ATO1 DOCUMENT

PN705

THE COMMISSIONER: We will refer to them as attachments.

PN706

MR MURPHY: Now, could I take you to ATO13.

PN707

THE COMMISSIONER: Yes.

PN708

MR MURPHY: Now, Commissioner, you are aware that there had been a string of directions prior to 12 October 1999. The last of them was on 15 May 1998. And then in 1999, October 1999, Denise Howells is his director, Karina Rennie is the team leader, and there is a brief exchange on the 5th, where they attempt to ask him about his leave-taking and when he is going to do any work for the team. And he says effectively at that meeting, "I want it in writing". And so Denise Howells then puts those letters in writing, which is to ask him:

PN709

Why did you not seek prior approval for leave or release from duty for those dates?

PN710

Then at paragraph 2 it reverts to the direction of 15 May, which was said he was to spend a majority of his time during ATO work at Box Hill, asked that question, then the third one, why have you failed to produce any work, effectively, summarising. Paragraph 4, why have you failed to mentor, train and support? That is a direct reference to his job description which we have put in at, I think, ATO2. He is required - because he is an ATO4, senior person in the team, he has got to mentor the junior people. And then a copy of the instructions are attached.

PN711

So that is the letter on that day. They then have a meeting on the 12th with the union present again, and he is asked about his activities. You will see - and the question - Mr Lapidos, Commissioner, was on multiple OH and S committees. Now, you will note, Commissioner, that at all times in the directions, the Commission - the ATO has recognised his health and safety obligations and its obligations under the Health and Safety Act and the agreement. But what happened was Mr Lapidos, because he was the one man - he was the member of the union - he was spreading himself very thinly. And this is the problem that the Commission - that ATO faced as at December of 2000; that he was on so many committees that he was never doing any ATO work, and then on top of that he was doing ASU union work.

PN712

So he was not doing any work at all. But that had been an issue that had been raised years before, and you could see the question of the ATO saying to Mr Lapidos and to the union - the applicant here is the union -saying, look, can you address this issue. And I would just like to take you to page 4 of the transcript of ATO14, the bottom paragraph is the union - the secretary of the union, of the ASU, and the president. And he is asking him about - he mentioned the establishment of these business line committees, and then he is asked about the forums in which the ASU has representation, and it is the ASUs long-term objective to have people within the business line.

PN713

See, Mr Lapidos, even though he was in wholesale taxes out at Box Hill, he was representing people in all sorts of other business lines, representing ASU in other business lines that he knew nothing about, and - well, it was outside his field of expertise. And the point is that issue was directly raised and the explanation was given by the union to say, well look, we are trying to find other people. From the ASU point of view, we would think that Jeff with his experience in the short-term would be required to guide our future representatives through those processes and mentor them.

PN714

So the issue of the conflict between his OH and S duties and his ASU duties and his duty to actually do a day's work for the ATO was right on the table in that meeting of 12 October 1999. Now - and you will see in that - I will not - in that meeting - in that meeting of the 12th, that he had been asking for recreation leave, leave without pay, to continue his union activities. And at page 6, in the middle of that interview, Denise Howells was saying to him, look, our operational requirements require you to be here and to do some work for your team.

PN715

And at that point Mr Lapidos is working on negotiating with - for the next certified agreement, and one-third of the way down, Denise says:

PN716

We are not going to grant you leave on this occasion to go for this negotiation.

PN717

And then she indicates that she has been deferring other people's recreation leave because of the operational pressures on the team. Now then, over the page, she says - he asks whether you have given a direction that no-one is to take rec leave, and she says: "I haven't given a direction". But what she says in the first paragraph:

PN718

I am applying in your case but it is also different. Here is a specific instruction that you are to spend the majority of your time doing what was withholding tax work, and that is now RN work.

PN719

So she is saying to him, look, there is previous direction you spend the majority of your time doing ATO work, and then he then says, well look, OH and S matters counts for duty. That is accepted. And then you will see there in the middle of the page you get his attitude to actually performing his duties. And she is saying:

PN720

Irrespective of this document -

PN721

which is the OH and S work -

PN722

we need all hands on deck.

PN723

"Well, these two hands you're not getting at the moment". And then she says, "Well, you know you are exposing yourself to disciplinary action if you fail to report for work". So this is with Denise Howells, his director, and this is with the ASU representative present, and this is in October 1999. Now, then you see there below that Denise mentions to him that she has given him this series of letters - a letter that she wants to discuss with him, and Jeff Lapidos raises an issue in relation to the questions that she has delivered in the letter and wants his response to at the next meeting.

PN724

And you will see his comment at the bottom of the page. And his words speak for themselves at the bottom of page 7. Now, we then go to ATO15 which is the meeting that was held on 20 October 1999. You see, Commissioner, the thrust of my learned friend's submission, there are two aspects to it; one, he is saying that these directions of 1 December come like a bolt out of the blue and that there should have been consultation. And, two, he is saying that they are inconsistent with some prior arrangement. Now, we deny both of those points. And that is why this issue of the resolution of the conflicts is a live issue and it was discussed in the meeting of 20 October.

PN725

And the other point we make about - we made in our contentions about the manner in which these directions were formulated and the way they were actually distributed to Mr Lapidos is important, because Mr Lapidos has had a track record of saying, "I want it in writing", and that is why, when he had a meeting on 5 October 1999, Ms Rennie was asking about his leave-taking, and he immediately says the meeting broke up because he wanted it in writing, and that is what gave rise to the letter. And that was then the subject of some discussion on 12 October 1999, and then another discussion on 20 October.

PN726

Now, the sequence in 2000 was the directions were formulated but Mr Charles said to Mr Lapidos at that meeting these do not come into effect for a week, and I am prepared to discuss them with you. And Mr Lapidos never reverted to Mr Charles in the week, in that one week. And that, in our submission - it is put by my learned friend there was no input from Mr Lapidos about these directions. He had a week to give input to them, and in any event consultation or a fair go is about knowing what is the issue on which someone might take an adverse action against you.

PN727

Mr Lapidos has known for four years what the issue is. The issue is his failure to resolve the conflict between his activities as an honorary ASU secretary and his duty to the taxpayer to actually do some work out there at Box Hill. So he knew what that issue was. And whenever the issue had been raised with him, all you got was confrontation. And that informed the way - that informed the way the ATO, Mr Charles, dealt with the matter, because he knew he would never get anywhere raising these - putting these directions in a draft form to Mr Lapidos, or even asking Mr Lapidos to turn up to a meeting.

PN728

Mr Lapidos was away for the whole of November, three weeks in November, and he had not even applied for leave for that period. From 6 November to 30 November, he was absent. He did not apply for leave before he went on that leave. And so that is why the manner in which the directions were actually delivered was done. Now, we have expressly put in our submission that Mr Lapidos had expressed animus about Karina Rennie who was his team leader at that stage, back in October '99. And you can see that, Denise Howells, the director, in ATO15, raises with Mr Lapidos on page 2 that he had not applied for prior approval for some leave, and Mr Lapidos responds, saying, at the middle of page 2:

PN729

Why is she not telling the truth about it?

PN730

He is accusing his team leader of not telling the truth about something. And then - I will not take you through the whole of the transcript of that interview, but it is made clear in the interview, the discussion, that Mr Lapidos will not - Mr Lapidos says he will not apply for a long period of LWOP to undertake his union duties. He wants to have his cake and eat it. He wants to act as a full-time union official and wants the ATO to pay him. And as a result of the - under the Act, there is no - you are not entitled to do that.

PN731

There is neutrality. And when Mr Lapidos is asked to give some sort of commitment to actually managing his time, he does not do that. You can see that at page 13, the bottom of page 13 of the transcript, Denise Howells says:

PN732

So how are you proposing to manage the totality of your time so that you are actually doing some work to support your team?

PN733

And Jeff - Mr Lapidos says, "Well, I said to Tony, and I've put it in writing in an e-mail as well, I think that Tony and Karina - I can't remember exactly who I sent it to - was that between then - which was a couple of weeks ago - and Christmas, given that the Commissioner wanted to get two agreements up by Christmas, I couldn't see how I could make a real contribution to the team". So Mr Lapidos is saying, look, I am not going to be able to do any work for the team for the whole - for the period from October till Christmas of 1999.

PN734

And then he refuses - and again on the next page, the middle of the page:

PN735

Well, I'm not - I'm telling you -

PN736

Denis Howells says to him, "Look, we don't know exactly when you will be around and where you are from one day to the next". He says, "I'm telling you I'm not going to be round between now and Christmas". Now, it is that context where there is no commitment by Mr Lapidos to undertake his duties or to recognise the operational requirements of the employer that these directions are formulated. And he refuses to answer the questions that she put to him, and then on about page 18 and 19 - in 18 she asks him about his duty statement, and he says "Well, I'm not covered by my duty statement" and then he says, sarcastically, "Oh well, yes, write that down very very carefully".

PN737

And then over the page, "Are there any other comments you wish to make?" He says, "I don't wish to make - it wouldn't be prudent" - and he spells it out. So he refuses in that meeting to recognise any commitments to the ATO, to recognise their operational requirements, and to offer any modus operandi to resolve the conflict. So then we move to 2000. Now, you will see, as I indicated before, that during 2000, for the most part, Mr Lapidos was on LWOP, union LWOP. And he applied for leave and it was granted. But you will see that it was not granted unconditionally, so that about half-way through those - in ATO23 you will see a file note from the then team leader about discussions when he was on duty on 20 March 2000:

PN738

Discussions with me regarding future leave requirements and what Jeff has been up to.

PN739

So Mr Lapidos knew that he was under a direction from 15 May 1998, that he was doing the majority of his work - of time was to be spent at Box Hill. Manifestly he was not spending any time at all at Box Hill, or very little time. And the position was becoming unsustainable. Now, Tracey Yannopoulos became his team leader in the middle of 1999, in about August, and she then - middle of 2000. Commissioner, we are dealing with the time when we had the new tax system, so it is not as though Mr Lapidos would be unaware of the pressures on his own employer and organisational change.

PN740

You will see in the diary notes of - that are at ATO16, Ms Yannopoulos raised the three key issues that really the directions address; his non-attendance at any phase 3 training, his absence from the workplace in general, and the team environment in particular, and that he bring up to date his LWOP sheets. And look at his comment in the middle paragraph. He refused to participate in any training and he gave his grounds for that were his other commitments, the OH and S issue responsibilities. And then the second issue was his absence from the team.

PN741

There is an express provision in his duty statement and job description that he is to - that it is a team environment and he is to assist the other members of the team, and he says he is not planning to assist anyone with the team workload, and the team needed an APS4, but he was not interested in being it. A couple of weeks later, another diary note from Ms Yannopoulos. Again, she rings him on his mobile phone, explained the work pressures on the unit, mentioned the training issue and mentoring, and an irritated response.

PN742

Now, this irritated response is important. That is the response that Mr Lapidos has made in the past to attempts to ask him to address it; he is outraged by it. And that is relevant to his now assertion that somehow or other the process is impugned by the failure to consult him. Every time he has been consulted in the past, he was not interested in listening. And then you look at his comment on the fourth paragraph, "Don't expect me to be available, if you want an APS4", which is his part of the team, as an APS4.

PN743

So then there is a further incident where she again raises it, and no response. So there are three diary notes, contemporaneous diary notes, that support the proposition that there was no acquiescence by the ATO in Mr Lapidos' position during calendar year 2000. The APS was unhappy with his position. He was in breach of his duty as an APS officer. He had to do this training, he had to participate, and he never did. And he knew he was in breach, because it had been brought previously - brought up with him previously. And yet he turns around here and says there is no consultation.

PN744

Now, there is a further point. Ms Yannopoulos also instructs us, and we put that in our submission - I am trying to pick up the paragraph - that she did raise with him the fact that it was not working and there would be a review of the directions. And that is in paragraph 36 - sorry, paragraph 33 on page 12 of the contentions.

[12.30pm]

PN745

And she expressly indicated the process would continue if he refused to make a commitment to work with the team and to alter his leave-taking. And you have got a disrespectful response from Mr Lapidos that is in ATO18. She said she raised the matter with his director, Mr Anderson, and he had one or two informal discussions with Mr Lapidos about his work performance, behaviour and leave-taking in the period up until December 2000. So we said at paragraph 32 the position prior to December 2000 was unsustainable. And Mr Lapidos must have been operating on the moon if he didn't know, himself, that it was unsustainable. And yet he did nothing to play his part of the bargain.

PN746

And so the Commission can take it that he doesn't contest the contents of the diary notes of Ms Yannopoulos or the whole of page 12 of our submission, the factual assertions therein. So we go, then, to the point that we say that on four grounds there was no requirement for us to consult with these directions in relation to these directions. The directions, Commissioner, it is important that - there are two aspects to these directions - there are three aspects. First of all, there was the opportunity to discuss them specifically with Mr Lapidos. They weren't operative for a week.

PN747

Secondly, this point that the Commissioner raised with my learned friend. The directions themselves don't - they don't adversely affect Mr Lapidos as such. The best example, Commissioner, is the requirement - the direction that he turn up for work and attend training as directed. Now, clause 98 of the agreement expressly says that - talks about employee responsibilities, headed Training and Development, and it talks about - heading, Employee Responsibilities:

PN748

The ATO is committed to ensuring that its employees have the skills and competencies to perform their changing roles ...(reads)... Employees are required to keep their skills and knowledge up-to-date.

PN749

Now, stopping there, that is a direct imposition of an obligation on individual employees. You have got an obligation to keep your skills up-to-date.

PN750

THE COMMISSIONER: No doubt it is a Division 2 agreement too.

PN751

MR MURPHY: Yes.

PN752

THE COMMISSIONER: So it binds them.

PN753

MR MURPHY: That is right, it binds them. But it binds them under the law of contract, Commissioner. You have got - I mentioned in the early part of the submission this is what is called a relational contract. There is no way that the ATO and an individual employee can specify everything in the contract of employment that must be done. You cannot work out all eventualities. So each particular occurrence in a contract of employment must be dealt with in a spirit of mutuality and co-operation.

PN754

Now, as at October and November 2000 Mr Lapidos had missed all the training for the GST and the changes. He had missed eight sessions that were offered to the Box Hill people. Now, he might have been sick one day when they were on. He might have had an OH&S meeting. He might have been involved in negotiating a certified agreement. He might have been representing another employee at a disciplinary hearing. All that is accepted but the point is if, as a result of all those activities, he hasn't done any training at all in courses that are required for him to discharge his duties, his day job, then he is in breach of his obligation under section 98(1) and under 98(2) there is an express power in the employer to require him to do the training that is required.

PN755

So that if you take the training aspect of the directions alone there was no obligation on Mr Charles to consult him before he formulated a direction in those terms, particularly given that Tracey Yannopoulos had raised it expressly with him on two or three occasions. And, again, I have described it as a dialogue of the death and that is the only way to describe the way Mr Lapidos was operating during 2000.

PN756

Now, it is important - I have said at the beginning of this submission that the requirements to consult the consultation obligations in the certified agreement relate to matters of general application, general policies and throughout the certified agreement, Commissioner, there is express reservation of the power of management to take actions that affect the individual employee and their own employer/employee relationship. And that is relevant here because insofar as these directions expressly say to Mr Lapidos: Look, attend work and go to this training. They relate to him personally.

PN757

And insofar as they say: Before you engage in union activity you will obtain prior leave. That relates to him directly and personally and it relates to the particular event that might be required. It is a prospective direction. And, clearly, it is very hard for an employer to lay down all the possible eventualities. My learned friend makes much of - that an ATO manager might ring Mr Lapidos up and want to discuss a matter that might be of concern to the ASU. And he said: Oh, Mr Lapidos can't answer the phone when it is in breach of the direction.

PN758

Well, there are two responses to that. One, Mr Lapidos could have put that to, those problems, could have put them to Mr Charles on 1 December before the directions came into operation. He never did. Two, if Mr Lapidos continues that conversation and spends an hour discussing a matter that is raised by another officer of the tax department with his ASU cap on; if he subsequently tells his manager: Look, I have spent an hour discussing this issue; if some adverse action is taken in relation to that event, then - then the issue of the reasonableness or otherwise of the direction is in focus. But until there is an adverse action the directions themselves don't adversely affect Mr Lapidos.

PN759

What Mr Lapidos, by his counsel, is seeking is the continuation of the cart blanche that he had been adopting in the past. So the example of the training is another good one. He is directed by his manager to attend at Box Hill for work on the 18th or 17 December 2000 and to attend - and to learn to use the new computer system. And he says on that day: I am not going to do this because Joe Bloggs has got a disciplinary hearing and he has asked me to be his personal representative.

PN760

Now, that is recognised as legitimate union business but how could Mr Charles have known that when he imposed the directions on 1 December? He couldn't have. So, then, if Mr Lapidos, then, goes off to represent Joe Bloggs and yet he is then subject to some adverse disciplinary event for failing to attend the hearing - the training on the 17th, well he can say: I have got a reason why I did that, and it is most unlikely that an employer would take an adverse action against him as a result of the direction.

PN761

So the directions themselves, we say, don't really adversely impact on him, they just set up a framework for him to apply for leave and to control the amount of time he was spending on all this ASU activity. And that is why the 12-hour cap of LWOP is significant. It is not an absolute cap because it says: Look, it may well be - it is subject to discussion in particular circumstances. That is expressly - it is said by Mr Charles in the covering letter, on the second page - the letter has got to be read as a whole but essentially what the letter is doing is saying: Look, we are drawing a line in the sand here, the situation is unsustainable and this is what we are proposing to govern the future and we can no longer accommodate your demands. We need you to do some work out at Box Hill:

PN762

If you want to perform union duties...

PN763

the bottom of the first page -

PN764

...you will have to conform to the reasonable performance expectations that the ATO has as your employer.

PN765

Now, that is basic. That is an employer saying: You have got to do something for us:

PN766

In considering what would be a fair position it is important the ASU recognises that the demands ...(reads)... unfairly burden a small number of individual members.

PN767

He is saying, remembering that his membership of the ASU doesn't give him any particular privilege. And then:

PN768

...your personal involvement in normal times a cap of 12 hours leave without pay in any calendar month would be fair and reasonable for you, your manager and your colleagues.

PN769

So 12 hours is not fixed and it is Mr Charles conclusion as to what is reasonable for unpaid leave. There is no cap on paid leave insofar as paid leave may be applicable for legitimate union activities. So, for example, if the ATO establishes a task force to review a particular policy under the certified agreement, relocation of officers or something like that, that is legitimate union activities and that is paid and there is no cap put on those activities as he is concerned in these directions.

PN770

And what Mr Charles is saying: If you had call to exceed the limit that this may be allowed where operational requirements permit. It is no blanket. And this is the point about the - when you go back to the October meetings there was no blanket - there has been no blanket limit put on Mr Lapidos, it is always a limit subject to the operational requirements and subject to consideration at a particular time.

PN771

And this is the point about Mr - my learned friend saying: Look, he couldn't do these activities. If he says: Someone has rung me up and I have had to spend an hour talking to a distraught - one of my members who has just been summarily dismissed or something like that, that is a matter that he can put to his manager and say: That was the position and I am seeking an hour's worth of paid leave for that or an hour's worth of unpaid leave. But these directions of this letter are the subject of individual application in the particular circumstances and Mr Lapidos complains about them yet he doesn't offer anything in terms of him wanting to co-operate to make them work.

PN772

THE COMMISSIONER: Is that a convenient time, Mr Murphy?

PN773

MR MURPHY: Yes.

PN774

THE COMMISSIONER: I will adjourn until 2.15.

LUNCHEON ADJOURNMENT [12.45pm]

RESUMED [2.16pm]

PN775

THE COMMISSIONER: Yes, Mr Murphy.

PN776

MR MURPHY: Thank you, Commissioner. Commissioner, just a housekeeping matter. On ATO1, which is the folder that I handed up to you, I would just like you to check ATO15, the annexure, just to see that there was - some of the pages were out of order in the second interview. Check that ATO15 has got 18 pages in it. No? Well, then, can you have a look at ATO7 - sorry, ATO10 and the balance of the pages at the back of ATO10, pages 7 onwards of the interview, 7 to 19, do they - - -

PN777

THE COMMISSIONER: Yes.

PN778

MR MURPHY: Yes. Well, they are to go into ATO15 at the end of them.

PN779

THE COMMISSIONER: Thank you.

PN780

MR MURPHY: Commissioner, before lunch I was putting our position that for the four reasons we set out in paragraph 40, that these directions didn't require - or the terms of the certified agreement didn't require specific consultation with Mr Lapidos in relation to their content. And even if they did we say that there (a) had been consultation as a result of the process that I have referred you to because Ms Yannopoulos, his team leader, really stands in the shoes of Mr Charles and she had indicated to him her uneasiness and asked him to comply with his obligations as an employee, and he hadn't, and that is unchallenged.

PN781

And she had indicated to him unless he did bring this balance - bring some balance into his union - request for LWOP for union activities and his duties, then the directions would be reviewed. That is what she said to him and there was no response. So in those circumstances and given the antagonistic history of Mr Lapidos when these issues were raised, and I refer you to the transcript of ATO15 and ATO14, we say in our submission it was reasonable and not in breach of any obligations of consultation in the agreement for the directions to be formulated in the way they were and put to Mr Lapidos on 1 December.

PN782

Now, it is interesting, my learned friend relies heavily on the MPC report. The Commission doesn't accept - sorry, the ATO doesn't accept the conclusions of the Commission, the MPC, because - and you will note in the report which is submitted there is no reference to the history that we have put in our submission. It is asserted that there is this fundamental change but there is no reference to the fact that the long history of - there are no findings about the long history which we say was available to the MPC and because of the way this whole chain of events has now become transmitted to this Commission the ATO has never had any opportunity to put its side of that story to the MPC.

PN783

And indeed the MPC expressly recognises the legality or the right of the ATO to define working arrangements and that has got to be fundamental, Commissioner. And we say that there can be no obligation for consultation in the abstract without some history of action by Mr Lapidos in the sense that invites consultation. And his actions, which were unilateral and confrontational, indicate that it was a reasonable way that the employer acted in this circumstance and certainly not in contravention of the certified agreement. And I mention the particular features here in paragraph 49 of the submission.

PN784

And it is important, Commissioner, to - there are three documents that are important in reading these directions. One is the cover letter which is ATO20. Two, which, as I put to you, reeks of a reasonable explanation and rationale of the directions. It expressly refers to the operational requirements and reaches a conclusion on the second page that:

PN785

...12 hours is a reasonable cap for LWOP for union activities.

PN786

It says that subject to particular consideration. Explains the operational requirements are based on the obligations for training. And it also explains that there is to be approval to be obtained before Mr Lapidos is absent from duty and that is - there is nothing in the certified agreement to say that any employee can absent themselves from their duties or their workplace without the approval of their supervisor except in some emergency situation. And that is really what we are doing here in these directions.

PN787

Then we look at annexure to ATO20 which makes it clear that - but before I go to that, the second page of the cover letter indicates:

PN788

The directions will remain in force until they are formally replaced by further instructions from myself or another authorised manager.

PN789

So they are not set in stone, Commissioner, they are always open to be reviewed by the ATO. The Commission is entitled to regard the ATO as a reasonable employer and manifestly the contents of the letter indicate that they are prepared to listen to reason and they have acted reasonably so you could assume that they would be subject of revision. Then you go to the attachment to it, the second last paragraph says:

PN790

Mr Charles informed Mr Lapidos they would be happy to review the directions if Jeff considered any aspect of them to be unreasonable.

PN791

And says, in response to his concern, he explained that:

PN792

...the balance between work and union activities provided for in the directions were considered reasonable within the law...

PN793

and he consulted the relevant ATO court officer before doing that. And he gave him time - gave Mr Lapidos time to consider the directions. So, again, that is a reasonable series of actions. Then, Commissioner, you must, I would ask you to, look at the ATO1 which is the statement of reasons for the decision under the ADJ&R Act. And my learned friend took the point that there had been no consultation and he referred to the lack of any documentary trail to indicate that.

PN794

But if you look at paragraph 5 on page 2, item B, the evidence, Team Leaders and Directors Advice. So Mr Charles, before he did this, he sought advice from Ms Yannopoulos and Mr Anderson, the relevant Team Leader and Director. So the input that we have put to you that Denise Howells, his Director, had brought to his attention the problems that were occurring. Ms Yannopoulos and Mr Ian Anderson - so he got that input from people who knew the position.

PN795

Then you go across to page 3 and in the first sentence, when he is asked for an explanation for the 12-month cap he said:

PN796

I consider it to be a reasonable balance between work requirements and the time you could be released from normal duties to conduct activities.

PN797

And then in the next paragraph he indicates that Mr Lapidos hasn't done any meaningful or productive work for the team. So that was the predicament he faced, that Mr Lapidos, contrary to his duty statement and job description, hadn't done a tap of work essentially during calendar year 2000 for that team. And then the second last sentence in that paragraph:

PN798

I did not consider it was reasonable to continually approve leave on an ad hoc basis, nor did I consider it reasonable to allow you as an employee and a full-time member to absent yourself from work on an ad hoc basis with such frequency thereby impacting on the work requirements of the team.

PN799

Now, recall, Commissioner, that Mr Lapidos expressly refused to take long-term LWOP in the meeting of 20 October 1999. And even the cover letter, Commissioner, invited Mr Lapidos, to take LWOP if he wanted to. Again clause 46 of the certified agreement allows for miscellaneous leave, it allows for people to apply for leave, unpaid or paid and for whatever - for activities which would advance the benefit of the ATO, which could, it could be paid leave, for example to engage in the enterprise bargaining on behalf of the ATO. That is not excluded under these directions, the ad hoc or particular requests for leave can be made pursuant to the directions.

[2.26pm]

PN800

But primarily Mr Lapidos is being obliged - directed to turn up at Box Hill from 8 December, which he hadn't done effectively for the previous 12 months and do ATO work. Now, as I said in the submission before lunch, this is a relational contract and so you see there the next paragraph in page 3 there, the new tax system quotes a short term situation where:

PN801

Your release from duty needs to be restricted until you have participated in and successfully ...(reads)... with your position in RM.

PN802

Receivable Management. So what we have got is a situation is Mr Lapidos as a result of the leave that he was taking during 2000 was no longer up to speed to undertake his duties as an APS4. So Mr Charles is responding to that under clause 98, by directing Mr Lapidos to attend for work and to attend training, as one aspect of the duties. But he is explaining in these reasons that that is short term, so that is saying, look in March 2001 had you been trained up so you then were not behind in your ability to discharge your duties as an APS4 at Box Hill, then the 12 hour cap implicitly may be modified, or any other request that you might make.

PN803

But what the directions are saying is that at this point, December 2000, the operational requirements of the team, and your personal lack of operational capacity, namely - it is a bit like a pilot, Commissioner, you cannot fly unless you have done - if you have got a pilot's licence you have got to do so many hours per six months to keep yourself current. Mr Lapidos hadn't done any training for 12 months, he wasn't current as an APO4. And the chief pilot, Mr Charles is saying, I am directing you, your priority now is to do your training and when you have done your training then, after that short term operation requirement is discharged, then I will consider the position.

PN804

And that is made obvious in the next sentence where he talked about, there has been extensive training has been going on for all staff over an extended period for the implementation of the new tax system. There have been 20 full days of training, that is a month's worth of training and post training support to each staff member. And Mr Lapidos hadn't participated in any of it. And then over the - and he explains it again, and then over the page in the first full paragraph:

PN805

I also considered that the earlier training - the earlier you were trained the sooner normal arrangements could be put in place to ...(reads)... return to their normal duties.

PN806

So it got to the stage where people in his team in Box Hill had to be dedicated to retraining him were off their normal tasks, but what expressly the Commissioner is saying is that when that hump is over then normal arrangements could be put in place to facilitate your renewed involvement in union activities. So it was not a blanket no more union activities, it was not a blanket discriminatory act against Mr Lapidos saying, no more union activities in the future.

PN807

It was saying, look you have ignored our operation requirements for the last four years and certainly for the last 12 months, it is now time to get yourself up to date and this is a reasonable response that we are making. And that response, we say, is fully within the context of the 2000 agreement and not contrary to any part of it. So clearly these directions because Mr Lapidos had bent the rules in the past or pressed the boundaries, it was an attempt to set some rules. And those rules included prior approval of particular action, like taking leave, use of ATO resources.

PN808

And it was asked to be put in writing. The Commission will recall from this morning the discussion in the 12 October 1999 interview, where his then team leader, Karina Rennie, is disputing that he asked for leave. Yet she is saying well that was my recollection, he never asked for leave on a particular date. And so the requirement that requests for approval of leave be in writing is designed to protect both sides of this equation. To protect the ATO or the team leader so they know there is some record, and to protect Mr Lapidos.

PN809

And my learned friend would have it that this is some sort of unreasonable outrageous requirement or imposition on Mr Lapidos, it is not, it is just desired to formulate, to formulate a proper structure for him to seek approval to do something else when he is supposed to be doing ATO work. And again you can expect, Commissioner, that these directions would be administered in a rational, reasonable manner, so that if Mr Lapidos - him forgetting on one particular occasion might be excused, or if some eventuality occurs, an emergency occurs, that would be excused.

PN810

But Mr Lapidos, in a sense, has a track record and you can see that in the transcript of the meeting of 15 October, where he is asked about particular requests for leave. And at 6 o'clock on a Friday night he suddenly remembers he has got to apply, he is not coming in on Monday for a religious observance. Or he needs rec leave for the Thursday and Friday, and he remembers it the night before. I forgot it, I did well he said, I did well to remember it on the Friday that he wasn't going to be there on Monday on a religious observance day.

PN811

So Mr Lapidos has continually not met his obligations to in fact seek prior approval for leave. Mr Charles has taken that into account and directs him to seek written approval and that is only - and there is nothing contrary to that in the agreement. And the point about the directions and the opportunity to discuss that. Mr Lapidos could have put to Mr Charles from 1 December, some other alternative proposals in relation to obtaining prior approval for particular actions.

PN812

And that is the response to the examples my learned friend mentioned. When someone rings him up on ATO business, but asking for his union cap, Mr Lapidos could say, well what about that as an example, and the answer to that is he could put something to Mr Charles, but he never has. The union had never done so either. And the use of the ATO phone, if someone rings him up, he has got a mobile phone for his ATO - for his ASU purposes, but if someone rings him up on his ASU mobile phone and he says, I will ring you back on the ATO phone, that is the use of ATO resources for ASU business. And he is not allowed to do that.

PN813

And that is relevant to the argument about e-mail. My learned friend has extracted in his submissions a paragraph from a letter in relation to the use of ATO facilities for union business, ATO union business, ATO e-mail facilities. In vain, as I said earlier, do you see any provision in the certified agreement to say expressly that there is a right to use the ATO resources for union facilities. All it says is that you will not be discriminated against for legitimate activities.

PN814

Now, legitimate activities are not defined in the agreement and there will be legitimate union activities. But this is a level playing field. The Commission will be aware of the BHP Iron Ore decision, where employees - the employer has the right to say to people, you can have a AWA or you can have a certified agreement or you can - or I will just deal with you individually. There is no bias one way or the other. And so you have got to then find what facilities have been provided to the union.

PN815

And all that the ATO agreement says is that we will consult with representatives and when we consult we will provide you with a suitable facilities package. Similarly, we own all our IT equipment and we will allow people to use it for limited personal use. And I will refer you to ATO22, which is the full letter which points out - my learned friend has extracted one paragraph from it, but this is the full letter to the ASU. And it sets out the concerns about the use of its facilities for ASU purposes, the fact that it had been previously raised, and requiring the ASU to take measures to ensure that they comply with the ATO policy on the use of information facilities. And it - - -

PN816

THE COMMISSIONER: So in answer to the question I put to Mr Farouque, earlier, this is an example is it of where the ATO have directed something towards the union and not just Mr Lapidos?

PN817

MR MURPHY: Well, yes, it is an example of that. But the point is, Commissioner, that - and that indicates that in fact that that was expressly directed because there had been breaches of the policy of the ATO IT policy. And I would like to hand up the full IT policy, to go back to the reasons for decision, ATO1, Commissioner, you will see there that Mr Charles, at page 5 of ATO1 - I would like to tender that if you don't mind.

EXHIBIT #ATO2 DOCUMENT HEADED PROPER USE OF AUSTRALIAN TAXATION OFFICE INFORMATION TECHNOLOGY FACILITIES

PN818

MR MURPHY: And this was the current policy that was current at the time. And if I could take you to page 3, improper use of IT facilities, sorry, page 2, acceptable use. The first paragraph there talked of:

PN819

Limited personal use is permitted.

PN820

Now, again, the word personal use. The thrust of my learned friend's submission essentially is to slide from personal use or personal actions by Mr Lapidos to actions of his in his ASU capacity, and he can't have it both ways. If he is on a consultative committee as the ATO representative he is - and he is accorded ATO facilities for that purpose, then he must meet whatever terms under which those facilities are provided. There is nothing to say there is unlimited use of the ATO IT facilities for ASU business.

PN821

There might be a particular example of facilities provided for a particular consultative forum, but not unlimited. And so when some employee rings up and says I need your assistance for a grievance, and the employee wants to discuss it privately and there is a use of a room, that is the employee using the room for his own purposes with the assistance of Mr Lapidos. And my learned friend will say, but the directions stop Mr Lapidos using the room, the employee has got a right to proper facilities for his own personal grievance under clause 122.

PN822

So there has always been express limited personal use of ATO facilities and at the top of page 6 of the reasons, Mr Charles expresses - he says:

PN823

My decision also included an avenue for you to obtain permission to use ATO equipment for union purposes, thereby enabling consideration of ...(reads)... acceptable personal use.

PN824

And then there is express recognition:

PN825

I am also conscious of the fact that certain union e-mails and bulletins may and do constitute ATO business purposes as referred to above.

PN826

Clearly if there is some consultative mechanism the ATO is involved and there needs to be consultation with its members, that is ATO business, that is not ASU business, that is ATO business. My direction would enable you to obtain prior permission from a duly authorised person that would not bar you sending such e-mails or bulletins. But if the ASU sends a bulletin to Mr Lapidos about a general wage claim across the whole of the public sector, that is ASU business.

PN827

And if he broadcasts that on the ATO IT system, that is using ATO facilities for ASU purposes. And the directions expressly say that he is not to use the facilities on behalf of thee ASU. And my learned friend refers to the Ansett e-mail case, you may or may not be familiar with it, it is referred to in our submission as referred to in my learned friend's submission. That involved a woman who was a member of the ASU and she was on an Ansett business consultative committee and she put out - the ASU put out a newsletter about the results of a particular meeting, and she broadcast that on the Ansett IT system.

PN828

And she was dismissed because it was said that that was ASU business and it was a misuse of the Ansett IT system. Merkel J, held that it wasn't, it was Ansett business because it was part of an Ansett forum, a consultative forum. And so these directions recognise that, they recognise that in particular consultative forums a facilities package will be made available. But that again is prospective, when the directions are laid down Mr Charles, nor Mr Lapidos know what particular consultative forums or what need Mr Lapidos might have when he has got his ASU hat on in a particular consultative forum.

PN829

So he is to get approval before he uses ATO facilities for that particular business activity of the ATO, which he is participating in as an ASU representative. That is all it says, it requires prior approval, and expressly in their reasons it says, you have got the opportunity to get permission. And so if a committee is set up it was always open to Mr Lapidos to say, well can I use the e-mail to broadcast a newsletter about each of the minutes - meetings of a particular committee, and the ATO will say yes to that, it would say yes to that.

PN830

But you cannot - it is very hard to set up a series of - a direction that takes into account all those eventualities into the future and so it is an iterative process and that is what Mr Charles was saying in the reasons, in these reasons here, he is saying it in the meeting of 1 December. And that is why it is just wrong to say that this is somehow or other suppressing Mr Lapidos right under section - under clause 120, to engage in legitimate union activities. The legitimate union activity will be determined by what activity it is at a particular point in time. If it is consultation then clearly there may be the right to use those facilities. But you cannot sort of - you cannot indicate what they are with a carte blanche. Essentially what Mr Lapidos is saying, anything I determine as union activities I can use the ATO facilities without asking for any permission.

PN831

That is like saying to someone, you are required to turn up for work from 9 till 5, and then someone saying, well I will choose whether I turn up or not. You will choose to turn up because that is what you are being paid for, but you can ask whether you want to be absent to do something else or spend an hour on the activities of the Stony Creek Racing Club, to use another example. You cannot do that unless you have got permission.

PN832

So we deny in our contentions that there have been any carte blanche permission to use ATO facilities prior to these directions. And the ATO2 indicates that it is clearly not the case, there was only ever limited personal use of e-mail facilities. And indeed that letter that I refer to, ATO22, makes it clear that there had been abuse in the past, that was as at November - May of 2001, and it was made very clear it is only in limited circumstances would it be used and it has got to be by prior permission.

PN833

Now, my learned friend made much of the question of telephone, the use of telephone, that is another example of - just to go back to the acceptable use of ATO facilities, ATO2, the IT facilities, Commissioner. I mentioned in the first paragraph of paragraph 5, then paragraph 6(i) over the page, and at the top of page 4 is lists of improper use. And then at the top of page 4, under (s), under:

PN834

Without authority the production or transmission of documents which promote or encourage union activities.

PN835

And then:

PN836

Documents supporting or encouraging industrial action.

PN837

So that again is the neutrality point, it is without authority. If you get authority to do that you can do that, but if you don't get authority it is improper, improper.

PN838

THE COMMISSIONER: But Mr Murphy, there is one obvious observation someone may make, that the terms of the employer's policy, if inconsistent with a certified agreement, the policy would fall away wouldn't it?

PN839

MR MURPHY: Yes, it would fall away, but there is nothing in the certified agreement. The certified agreement - all the certified agreement, this is the point about the neutrality. The certified agreement merely provides that under 120 is the - you have got to have the right to choose in any - to participate in any legitimate activities. You see now what - and so you have got to ask, well what are legitimate activities. And as I said, the agreement itself provides for a number of consultative, or proposals to establish consultative mechanisms, and union organisations are to be invited and participate in those, and so insofar as Mr Lapidos may be participating in those that might be a legitimate activity.

PN840

But there is no code of what is legitimate activity. So it has got to be determined on a case by case basis. And that is really what the directions are saying. So that when you look at - now, the IT policy had been in place all the time, there was also the question of mis-use of IT resources, had been listed in the previous directions, in the May 1998 direction. So we say that these directions do not represent a radical change in his previous rights. Because in a sense he always had to balance his - he always had to get permission to use ATO resources for ASU activities.

PN841

He had no carte blanche, he had been given extensive periods of LWOP, but it was always open for an employer to say well I am stopping it now. And it got to the stage as a result of him - the disruption it was causing to the team, that Mr Charles - and his refusal to reciprocate as evidenced by the Mesunuros Yannopoulos diary notes that Mr Charles drew a line on 1 December and said, well it is to commence on 8 December and I am happy to discuss it.

PN842

And I am happy to administer it in this reasonable way that is evidenced in my reasons. Now, we say that that action - so this was not unlike a situation of someone who, for example, had been continually late and so a manager says, well you are no longer to allowed to be doing flexi time, you have got to turn up at 9 o'clock every morning. That didn't require consultation and that power of management to actually direct a particular employee is preserved in the agreements and it doesn't require any consultation, those sorts of - that sort of direction.

PN843

And examples of that are clause 27.8, if you are terminating a home based employee, a person who is home based and it is just not working out, the manager can terminate the arrangement, so require the person to come back to work without consultation. And also home based work is subject to operational requirements. Under 26(17) there is the power of management to withdraw flexible hours, someone is on flexible flexi time, the manager can withdraw that from them, which is the managerial prerogative in a sense.

[2.58pm]

PN844

And so, insofar as the management here was giving Mr Lapidos unlimited LWOP, they were saying, well we are stopping now. And we are prepared to discuss why we are stopping, and the cap that it involves, but we are stopping, subject to those discussions. 26.11, in the flex-time arrangements, a Manager can direct that a person work normal hours, not flex hours, if their operation requirements. So here the operational requirements of this team and Mr Lapidos required him to not take more than 12 hours of LWOP, and attend for work to do some training, and not use ATO facilities without prior approval, but if you take the three main elements of the directions.

PN845

So, in our submission, given the history that doing that wasn't contrary to the certified agreement, and the fact that it had been formulated that way, the directions had been formulated as at 1 December, that didn't impugn the content of them. And the fact that they were to be administered in a reasonable manner, in a manner that was co-operative between the employer and the employees manifest from the directions themselves, saying without prior approval, but I am also prepared to consider relief in a particular case.

PN846

So they weren't inflexible policies on their face, and they weren't indefinite. As I said before, once Mr Lapidos had done some training, then clearly his ability to be released for other duties would change. Now, a lot was made of the fact that the OH and S directions, that they were withdrawn - part of them was withdrawn and replaced with another direction - now no adverse action was taken against Mr Lapidos in relation to the OH and S directions, and the new directions - my learned friend criticised those - but in fact the new directions do reflect the current position, because Mr Lapidos was on multiple committees under the OH and S Act.

PN847

Essentially there are two streams of committees; there is national committees which includes business line committees and branch committees which includes local site committees, and his ability to participate in those is preserved by the amended direction. And at all times the ATO has been prepared to recognise his involvement in OH and S. Now, I mentioned the suitable facilities package, and as I said the provisions under clause 120.7 says that:

PN848

Where employees are involved in consultative or business forums they ought to be ..... with a suitable facilities package to give them the necessary support.

PN849

Now, that is a statement - a general statement. Now, what is a suitable facilities package will depend on what consultation, what consultative or business forum the particular employee is involved in, or the particular representative employee is involved in. And these directions do not constrain that obligation on the ATO to provide that facility. And it is just that what had happened is that, in the period prior to the directions, Mr Lapidos was involved in so many consultative forums with his ATO hat on that his ability to discharge his duties as an officer had been impaired, and so some balance had to be brought to the situation.

PN850

But it was put that these directions in a sense snuffed out any right he might have under clause 120.7, but they don't do that at all, and so what facilities might be needed, or should be made available to Mr Lapidos in some forum is a matter for discussion or application in any particular case. And that is the point, that all the certified agreement does is it says, well, look, the ATO will provide a suitable facilities package to be determined on a case by case basis.

PN851

So that, for example if there is a review of moving a branch of the office from one suburb of Brisbane to another suburb of Brisbane, and Mr Lapidos asserts that he has some interest in that, well, (a) he has got to have a legitimate interest in it, and (b) are the operational requirements of the Box Hill branch such that he can be released to fly to Brisbane? That is a matter to be determined at the particular time, but you cannot specify in any particular direction that Mr Lapidos will be released for any consultative forum he likes.

PN852

And the directions do not do that, they don't prescribe it. So we say they are not inconsistent with that. We are saying we think that 15 hours - 12 hours per month is a reasonable time, but that is open to discussion, and it is only temporary until you get up to speed on this training, as an example. And in fact there is no prohibition on paid leave in those directions, so that for example, if Mr Lapidos was on a consultative forum that there was to be a facilities package provided that included paid time, it would not be affected by it, the directions do not constrain that. They only put a cap on unpaid union time.

PN853

So if he was on a forum to move the Box Hill branch to Nunawading, for example, then that would be paid time if he was nominated by the ASU, but if the ASU nominated him to deal with a move in Brisbane, they would say, well, you haven't got any interest because you are not employed at Brisbane, and so he might then have unpaid time for that and be caught by the cap. But that is something to be determined in each particular case, and the directions themselves are not set in stone, and they can be applied on each particular time.

PN854

So we say the facilities must be considered in the light of all elements of the directions and the demand his other duties are imposing on his time. So, if in fact there have been a lot of other demands on his time in a particular period, then if he requests further release, well that has got to be considered in the light of circumstances at the time. Now, it is put that these directions are essentially in breach of section 298K of the Workplace Relations Act.

PN855

Now the first point to make about that is that 298K requires a proceeding in the Federal Court, and in a sense this Commission is not in a position to make any finding of a breach of 298K, and the evidentiary provisions under the Act are not applicable in this forum. But we deny that Mr Lapidos is being singled out because of his union activity. There is a neutrality about these directions that, in our submission, is obvious from the reasons that gave rise to them. There is no immunity as far as the employee is concerned by reason of the fact that they are a workplace representative of a union, or that they hold elected office. There is neutrality.

PN856

THE COMMISSIONER: As I apprehend the argument, it doesn't arise this way. Mr Lapidos is an officer of a union, and action is being taken which is said to be contrary to the certified agreement to prejudice his employment as a consequence of him carrying out duties as an officer of that union.

PN857

MR MURPHY: That is what is being said. But as I make clear in the submission, in fact it is the reverse. Mr Lapidos is an officer of the ATO. He is required to discharge his duties an officer of the ATO. He is not discharging his duties as an officer of the ATO. We are requiring him to be trained and to comply with ATO requirements. That is the reason we are taking the action we are. Because he is a union representative and wants to take unlimited time to discharge union duties it has an impact on him.

PN858

But our reason is the operational requirements of the ATO, not because we are trying to pick him out because of his union activity. Now what we have said in our submission and what is clear from the cases is that a legitimate reason to take an action helps displace a prohibited reason. There is a reverse onus if we were in the Federal Court, there is no onus in this Commission.

PN859

THE COMMISSIONER: Gaudron J says, to the extent that there is, it is unhelpful.

PN860

MR MURPHY: Well, yes. So you have got to look to the fact that there is no entitlement to do what he has been doing, to take the whole of 2000 off on LWOP which is effectively what he has done. So the example would be, if some other employee who happened to want to be the full-time secretary of the Stony Creek Racing Club just kept applying for leave to undertake those duties, and then his or her manager says, well, no, we want you to do some training and start turning up to work.

PN861

Is that action being taken because they are involved in horse racing, or is it being taken because they are not performing their duties as an ATO officer? The reason for it is they are not performing their duties as an ATO officer, not because they are involved, even though the consequence of it will be that they will be impaired in their ability to engage in their secretary duties. But the reason, the primary reason, is the ATO operational requirements, even though the impact of the direction is on those other duties. And that distinction has now been identified in the cases.

PN862

The examples that have arisen involve contracting out, where the prohibited reason is the people are entitled to the benefit of an industrial instrument. So if you are doing catering and you are paying all your staff and your Council $1000 a week, and you want to contract out the business, and the tenderers are only going to pay their staff $600 a week. So you are going to save $400 a week if you are the Council who are contracting out.

PN863

Employees have been saying, look, we are being discriminated against because we are entitled to $1000 a week contrary to section 298K. The Court has said in the case that I have cited, the CSL case: no, if the reason for it is to save money, if the business wants to save money and that is the reason why they decided to contract out, and they decide to go with the $600 a week tenderer, we accept that that is their reason, not because they don't want to pay the $1000, but a consequence of it is they don't have to pay the $1000, that is a legitimate reason, and that was upheld - that involved the case that is over in South Australia, where they said: we want to have an efficient shipping operation, and we are going to crew it with Filipino crews, which they did.

PN864

But it was an efficient shipping operation was their reason, and the Australian crews are more expensive, the Filipino crews are cheaper. But if their reason was an efficient operation, that was held to displace this prohibited reason argument. And it is the same here: we want to have employees turning up for work being able to do their duties. They have got to be trained. We want to have employees not using our facilities for their own purposes, they have got to get prior permission before they do that. That is our reason. If it impacts on the fact that he is an ASU honorary secretary, so be it, but it doesn't make it prohibited.

PN865

And, Commissioner, my learned friend doesn't accept our proposition that we did not do this because Mr Lapidos was a member of the ASU, and I would seek to call Mr Charles - he is on three-quarters of an hour's notice - to put him in the witness box to say that, because as the Commission will be aware, the early Federal Court cases really require, have required, the decision-maker to jump in the witness box and say: I didn't do this because he was a shop steward, I did this because he was engaging in misbehaviour, as an example.

PN866

And it is clear that - what has been clear from the start in this sequence as far as Mr Lapidos is concerned, it was made clear in the first grievance that Mr Lapidos has Mr Chapman's comment in ATO3:

PN867

It would be easy to conclude Mr Lapidos was seeking to hide behind the shield of union office while avoiding the basic responsibilities associated with his full-time employment as an ATO officer.

PN868

That was in the first grievance, and that is - he can't hide behind the shield, which is what he is trying to do. So I have said we don't - we see this as neither a breach of the suitable facilities package, and neither is it unlawfully restricting his participation in union activities, because what are legitimate activities in support of the organisation are not defined in the agreement, and the requirement that he obtain prior approval, for example when he takes leave, is not contrary to section 127.2, because there is no express provision in there to say that you are entitled to leave without prior approval, for example, if you are engaged in - unlimited leave - if you are engaged in union activities.

PN869

And the directions themselves expressly recognise that if Mr Lapidos is involved in support for an individual, employee support, then he is entitled to be involved in that. They don't prohibit that; that is paid leave. There is no restriction on that. It is that he is not allowed perform activities on behalf of the ASU during paid leave - paid time. And at page 26 of the submission I have got an extract there from the ASU v Ansett decision about the shop steward. That is an old case. But again those cases have got to be looked at carefully because they are all in the Federal Court where the onus of proof is expressly provided, and they are involved in Court proceedings.

PN870

And I have referred in 93 to that Maritime Union of Australia case. That is the one I have mentioned, to distinguish between the operative or immediate reason for the employer's conduct, and the cause or proximate reason for the employer's conduct. The immediate reason was: this was unsustainable because he wasn't doing any work and he was unable to do any work, because he was untrained.

PN871

Now, my learned friend in his submission is going to the question of the use of ATO facilities. He omitted to refer at all to the fact that all these obligations on Mr Lapidos are requests that he obtain prior approval to do things, prior approval to take paid leave, prior approval to take unpaid leave, prior approval to use ATO facilities. Now, it is the prior approval issue, it is in a sense saying that this employee, or this union official is entitled to do anything within the workplace without any approval whatsoever, without pointing to any right to do that within the certified agreement.

PN872

There is an obligation on the employer to consult with the employees where practicable, but in this case we say it wasn't practicable to consult with Mr Lapidos given his history, and consultation wasn't applicable because this was his direct obligation under his contract of employment. And so it was analogous to a situation of revoking his right to engage in flexi-time or, or revoking a home leave arrangement. And it doesn't - under clause 121, which is the employees' support clause, these directions do not impact on his ability to provide employee support.

PN873

They recognise that he can do that, but clearly the provision of employee support by Mr Lapidos in his capacity as the ASU honorary secretary again requires prior approval. If Mr Lapidos is in the middle of some work involving a particular client of the Box Hill team and that is urgent work, then if he suddenly wants to down tools to assist another employee, he has got to ask his team leader. Now, Mr Charles cannot formulate a direction or any sort of rule that would allow that circumstances to be the subject of some sort of prior approval, because you don't know what circumstances will arise.

PN874

So we are saying, well look, except in an emergency, I am requiring your prior approval, and I am requiring it in writing. And you will note my learned friend made much of the MP - Merit Protection Commission findings, but you will see in those findings, in that report, that the Merit Protection Commissioner notes that he expects Mr Lapidos to comply with his duties as an employee. And yet in vain you will see anything in these contentions that would indicate that Mr Lapidos recognises that at all.

PN875

Section 120.2, which is the right to be a member of a union, or participate in any legitimate activities, what these directions do is they provide a framework to allow Mr Lapidos to do that. They don't prohibit him doing anything, they allow him to do it, but they provide a framework for him to do it. He is free to take leave without pay to exercise his rights, and there is an offer to allow him to take permanent leave without pay or long-term leave without pay.

PN876

But if he wants to exercise his legitimate activities as a union representative, for example to be on extensive consultation processes or some other activity, then he has got to adapt that with - he has got to do that in conjunction with his full-time duties as an ATO officer, and if he is not prepared to do that, then he has got to comply by seeking leave to do that, permission to do that, just like, if he wants to go and play tennis or take any children home from school or something like that, he has got to get permission to do that; he can't walk straight out the door.

PN877

My learned friend made much of discriminating against Mr Lapidos on the basis that these restrictions are on him and that they are not on any other ATO employee. But there is a difference between Mr Lapidos and any other ATO employee. He is the only one who is the honorary secretary of the ASU who is consulted and involved in that capacity. So requiring Mr Lapidos to get permission to use ATO facilities is putting an imposition on him in that capacity in circumstances where all that the certified agreement does is recognise his right to be involved in legitimate activities. He doesn't get carte blanche if he is nominated for a particular consultative process as the ATO representative.

PN878

Now, my learned friend suggests that these directions should be set aside ab initia. Now, we say that the Commission should not do that. These directions are made within and are not contrary to the certified agreement, and they have been on hold for - the decision to set these aside was taken 12 months - the application to set them aside was taken 12 months after they were implemented in January of this year. It would be wrong, in our submission, to set these directions aside.

PN879

Given the process that went into them, given the reasons that went into them, given ATO23 where Mr Lapidos was not doing anything for the ATO for the whole of calendar year 2000, it would be wrong to set them aside. Mr Lapidos has known that he must play his part in this contract of employment and he hasn't. And the only mechanism that Mr Charles had as his director, to require him to meet his obligations, was to give him a direction and require him to. There was no other alternative effectively as at 1 December 2000.

PN880

And in those circumstances, where we submit on the material it was manifestly reasonable for him to do that, then it was really a matter for the ATO at that point as a reasonable employer - and it is not for this Commission 18 months down the track to in a sense re-make the decision of Mr Charles, and to impose the direction. The direction is manifestly reasonable in circumstances where it is not contested that Mr Lapidos was really not performing any duties at all, and not capable of performing any duties at all, and not willing to perform any duties.

PN881

And so therefore he had to be brought back into line. He wasn't prepared to - he wanted to just be a full-time union official on the full-time payroll of the ATO. That has been clear since 1996 or '97. And the only way to bring it back into balance was to impose some sort of direction on him, ask him what he has got to say about the direction, and then go forward. Now, I haven't canvassed the fact that Mr Lapidos has breached the directions extensively, and my learned friend says that - I withdraw that - I haven't canvassed that.

PN882

But, in my submission, the fact that he has breached the directions, or at least there have been proceedings taken against him for breach of the directions, is itself evidence that the process of the ATO prior to the directions was a reasonable one, because the directions themselves, in my submission, on their face are reasonable, and if they were unreasonable - if they weren't reasonable - why has Mr Lapidos not even attempted to comply with them which caused a number of breach proceedings to be taken against him, requiring him to seek prior approval for leave to go on leave. Now, subsequently, it appears that he hasn't sought prior approval. What is so unreasonable about a direction like that, and the fact that he subsequently refused to comply with it is an indication that it was reasonable, in our submission, to put that sort of direction on him.

[3.22pm]

PN883

My learned friend mentions the ATO noticeboards. Now, as I said, that is a good example of how the directions themselves don't really adversely affect Mr Lapidos. If Mr Lapidos had put a notice in the ATO noticeboard and then Mr Charles had then taken breach proceedings against him for doing that, Mr Lapidos could immediately say I have got the right to do that under the certified agreement. The directions must be read with the certified agreement. They operate underneath the certified agreement and so unless they expressly attempt - if they attempted to go outside the certified agreement, they would be contrary to it. So they have got to be read - - -

PN884

THE COMMISSIONER: I think that is Mr Farouque's point entirely.

PN885

MR MURPHY: Yes, but they have got to be read with it. They have got to be read with it. So it merely is - doesn't assist his case at all to say he couldn't put an ASU notice - and similarly with the use of the IT facilities. Where in the certified agreement is there unlimited right or right to use IT facilities without permission? It is not there and so, therefore, putting an obligation on him to obtain them with prior approval is not in breach of it. I have referred in my submission to the Geraldton Port Authority case and that is on the question of, if this was Federal Court proceedings, the onus of proof.

PN886

It is interesting Mr Lapidos has not sought to contest any of the factual assertions in our contentions and there is a Browne v Dunn point against him on that - sorry, Jones v Dunkel point and in those circumstances it ought to be accepted that - there were two points about that. It ought to be accepted that the reasons that Mr Charles has proffered as the reason for the - as the state of play as at December of 2000 ought be accepted as true. If that is the case, then any - that also includes the truth of what is put in the letter of 1 December and the diary note that they would be administered reasonably and that they were only a short term response.

PN887

In that letter there is also clear recognition of his role as a union official. Now, it follows from that, in my submission, that my learned friend cannot then assert that somehow or other these directions are, in fact, driven by a desire to discriminate against him as a union official or with that status because the evidence that led to them remains unchallenged. The reasons of Mr Charles remain unchallenged and the assertions of Tracey Yannopoulos and, indeed, the ATO - 23, the fact that he was never in the workplace during 2000 remain not in dispute.

PN888

So, in those circumstances, we say that if this was in the Federal Court, we would have displaced any onus. We say there is no onus here in any event but, on the material, the uncontested material, something had to be done and that this was a reasonable response to it and, therefore, it was not for some sort of prohibited reason. In those circumstances, we submit to the Commission that there should be no finding that these were taken because of his role as a union official or he was singled out for that reason and they shouldn't be set aside for that reason; they should be upheld so that the proper processes of findings of breach of them can continue. Unless there is anything further, Commissioner.

PN889

THE COMMISSIONER: No. Thank you, Mr Murphy. Mr Farouque.

PN890

MR MURPHY: Just before you go - Commissioner, what I want to do, I just want to hand up one case to you. I have referred to it early in my submission. It is this Ansett - the Airline Flight Engineers case, a decision of Merkel J, where at paragraph 18 there is just a general description of, essentially, this duty of trust and confidence or cooperation within a contract, and that is important, in my submission, that here there is no - I mentioned before there is no reciprocity by Mr Lapidos and that is really, in my submission, the accepted common ground factual situation, that Mr Lapidos was not playing ball with the ATO at all and in those circumstances, where he was under an express duty in section 5 - there is express power in section 5 to make lawful directions.

PN891

He is under all the duties in the ATO code of conduct under section 13 to act fairly and reasonably and equitably and he has done none of those things, and so the ATO is left with no alternative but to exercise the only power that an employer ultimately has got, which is to give a lawful direction for him to do something. That is underneath the certified agreement and not inconsistent with the certified agreement and there was a reasonable power exercised, in our submission. It was a power that was proposed to exercise. There was opportunity to discuss it. It was open for discussion.

PN892

There was no feedback from Mr Lapidos in the eight days. It occurred and shouldn't - and now, 13 months after that, this application to review it, again that was in breach of the duty to reciprocate and to cooperate in this relationship. So if this was being dealt with as a contractual case, in a sense, Mr Lapidos is in breach of his duty to cooperate in this contract but it is not, but it is relevant that it - in dealing with the way the Commission should approach it.

PN893

THE COMMISSIONER: Thanks, Mr Murphy. Mr Farouque.

PN894

MR FAROUQUE: Commissioner, can I just have a short break, if that is possible?

PN895

THE COMMISSIONER: Yes, of course. We will adjourn for 10 minutes.

SHORT ADJOURNMENT [3.31pm]

RESUMED [3.47pm]

PN896

THE COMMISSIONER: Yes, Mr Farouque.

PN897

MR FAROUQUE: If the Commission pleases, one point which I wish to emphasise and it will be borne out from a review of the transcript, is the fact that my learned friend referred to the leave entitlements which - or the leave which Mr Lapidos had taken in 2000. I think he was, at the time, referring to document 23 and he said that leave had been approved. I don't think that is a matter at issue between the parties, that there had been the approval of leave in 2000 and Mr Lapidos had attended - had absented himself on leave without pay, primarily pursuant to that approval. So we refer to that and we rely on that matter.

PN898

My learned friend also made some reference to the fact that Mr Lapidos - and I didn't quite make a full note of what he said - had not applied for leave in November 2000. I want to hand the Commission up copies of the two e-mails which Mr Lapidos sent to his team leader. One is for the period of October 2000 and that is an application rendered on 21 September. There was another application - - -

EXHIBIT #ASU5 COPY E-MAIL OF 21/09/2000 FROM MR LAPIDOS TO TEAM LEADER RE LEAVE IN OCTOBER 2000

PN899

MR FAROUQUE: - - - rendered for November 2000, which was rendered on 6 November 2000.

EXHIBIT #ASU6 COPY E-MAIL OF 06/11/2000 FROM MR LAPIDOS TO TEAM LEADER RE LEAVE IN NOVEMBER 2000

PN900

MR FAROUQUE: Mr Lapidos there apologises for any delay in providing the application before the commencement of the month. So we say that an application was rendered and that point is not material in the Commission's contemplation of these events. Now, in terms of the matters that my learned friend raised about the fact that Mr Lapidos had not availed himself of the opportunity that Mr Charles had given for him to provide some feedback between 1 and 8 November, we refer to the findings of the Merit Protection Commissioner, where he refers to that matter.

PN901

At paragraph 16 of his findings, which I have extracted at paragraph 31 of my contentions, the Merit Protection Commissioner refers to that. It says:

PN902

While it is acknowledged that Mr Charles offered Mr Lapidos the opportunity to respond ...(reads)... Mr Lapidos' involvement with the OH and S committees, may have been avoided.

PN903

So, in my submission, it is not appropriate for the ATO to submit, well, you know, he had eight days when the whole thing is being presented to him as a concluded package. He makes some points at the meeting about - which are recorded in the ATO minute of the meeting, about the 12-hour cap and those points are rejected. In my submission, the circumstances are such that a concluded decision had been made, one which had been reviewed until April to December, under consideration from April to December. A concluded decision had been made. The decision is announced. It is all over, Red Rover, so to speak. The mind has been closed. Points that Mr Lapidos raises at the meeting are not the subject of any consideration or concession.

PN904

Now, in terms of what my learned friend says about the obligation to consult being limited to collective matters, in my submission, that is simply not borne out. My learned friend went through the history of the change of the employment relations or workplace relations involving the amendments to the Workplace Relations Act in 1996, emphasised the decline, so to speak, of the collective approach and an approach in respect of individual employee relations, and it is entirely in that circumstance, in the nature of that particular matrix, that it would be appropriate and the agreement relevantly, in my submission, is premised on this fact about the individual relationship between the employer and the employee.

PN905

The obligation to consult should not in those circumstances, in that matrix, be confined to collective issues. The qualification is is it practicable? In these circumstances, we have this extended consideration between April to December, entirely practicable. This isn't imposing some onerous obligation on the ATO. It is a reasonable obligation which could well have been incorporated in the decision making process leading up to December 2000.

PN906

Now, my learned friend makes much of some file notes of Tracey Yannopoulos and some references to some discussions. In my submission, Ms Yannopoulos may well have been unhappy about the arrangements which existed up until December 2000, the practices which occurred till that time. That may well have been the case but that, in my submission, is not the material issue as to whether consultation occurred. Even if we accept the file notes which are relied upon by my learned friend, they do not, in my submission, constitute consultation about the relevant directions.

PN907

They do not, in my submission, Commissioner, have that effect. In that sense, they are not sufficient to raise the level of those concerns or dissatisfaction that Ms Yannopoulos may have had to the level of consultation. Mr Lapidos was not appraised of any contemplated cap or the like or given any indication as to the fact that these directions were being considered in the terms in which were proposed - were implemented.

PN908

Now, if we look at paragraph 33 of the respondent's contentions - and my learned friend says, well, that constitutes relevant consultation on the part of the respondent. It says:

PN909

Around that time, Ms Yannopoulos advised Mr Lapidos that there was to be a review of his working arrangements ...(reads)... to work for the team and alter his leave taking.

PN910

Now, if that was said to Mr Lapidos in the terms that it was referred there, Mr Lapidos would have had a proper and reasonable expectation that at some time the ATO would come and speak to him about the terms of these proposed directions before they were imposed. It is very material that if we consider what the Merit Protection Commissioner says, the MPC, who we, no doubt, assume is very familiar with the practices in the Public Service, refers to - and I will just find that particular passage - at paragraph 16 of his findings:

PN911

While it is acknowledged that Mr Charles offered Mr Lapidos the opportunity to respond on any aspect of the instructions that he ...(reads)... weakened any prospect of a considered response.

PN912

That was, evidently, a course which would have been open to the ATO, to come to Mr Lapidos with some draft directions and seek his response to those. That would have been a practice which the ATO could relevantly have adopted to canvass the full views of Mr Lapidos. Now, we say that even if you accept what is recounted there by my learned friend as to what Ms Yannopoulos has to say, it does not meet the mark of consultation that we submit is mandated or required by the certified agreement.

PN913

Now, my learned friend says, well, some of the matters that we have raised as examples of conduct by Mr Lapidos which could be inconsistent with the terms of the directions is not one which should be judged now. It should be judged at the time that that relevant conduct should be occurred [sic] and there is, in effect, some reasonable test after the fact. Now, in my submission, that simply can't be sustained in the sense that the directions themselves foreshadow at the very conclusion that Mr Charles will regard failure to comply with these directions, particularly if such failure is ongoing or repeated, to be a serious matter.

PN914

That is what Mr Charles is saying at the very start of the process. He is giving Mr Lapidos that indication, that any failure to comply with the terms of the directions will be regarded as a serious matter. That is what Mr Charles is saying. It is not then for my learned friend to say, well, the reasonableness of the application of the directions need to be judged in the circumstances after the fact. It just simply can't be sustained. Mr Lapidos is one step closer to a penalty and if the directions can be revised to avoid those consequences, in my submission, they should be dealt with now.

PN915

Now, my learned friend says, well, Mr Lapidos wants some carte blanche, some open book in terms of his employment at the ATO. In my submission, that is not what we are seeking in these proceedings. We acknowledge that the ATO has the right to issue directions. We don't dispute that matter. The directions must be issued in accordance with its obligations arising under the certified agreement. We seek to have consultation in relation to the terms of those directions. We are happy for that consultation to occur in a short time frame and we don't contest that matter.

PN916

We only submit that the directions should be made in accordance with the obligation to consult and should be consistent with the standards set down in the certified agreement in the matters that I have outlined before in my submission. My learned friend sought to attack the findings of the MPC. I am instructed that the MPC gave the Tax Office the opportunity to make considered submissions and interviewed Tax Office personnel about the matters that were the subject of its findings and, in those circumstances, the attack that my learned friend made on the MPCs consideration of the issue is not properly founded.

PN917

The nature of the material considered by the MPC is recounted in paragraph 9 of the MPCs reasons. There is extensive documentation referred to there. It also refers to various consultations with the ATO. My learned friend sought to suggest that what Mr Lapidos was attempting to do was to seek to act as a full-time officer of the ASU on the ATOs payroll, as if Mr Lapidos was, in effect, being paid for much of his activities that he was engaged in on behalf of the ASU. Now, if you look at document 23 in the respondent's - - -

PN918

THE COMMISSIONER: It demonstrates it is leave without pay.

PN919

MR FAROUQUE: It is leave without pay. So we submit that that suggestion cannot be made out. Now, my learned friend referred at various points to the fact that Mr Lapidos was being provided with paid leave to attend ATO consultative forums. Now, if I could take the Commission to a part of the contentions that were submitted on the part of the ASU, paragraph 39, we have recounted there the actual circumstance which has occurred, which is that Mr Lapidos, in the context of attending ATO consultative and business forums, has been compelled to take leave without pay by the ATO to attend those forums.

PN920

That leave without pay is the 12- hour capped leave without pay. Where that 12-hour cap has been exceeded in months, there have been instances where Mr Lapidos has been denied permission to attend consultative and business forums. So when my learned friend suggests, well, the ATO will act reasonably; when he attends consultative and business forums he can get paid leave, that is not how it has, in fact, been implemented. He has been subjected to the 12-hour cap and in those circumstances, that, in my submission, is a very material consideration when the Commission considers the consultation issue.

PN921

These issues need to be worked through. They need to be worked through without these directions being extant or standing and, in my submission, that supports the remedy that we seek, to have the directions set aside as a whole. We also refer to the fact that Mr Charles in his reasons does not disclose at any point any understanding of the role that Mr Lapidos has as an ASU officer. He says I am balancing this and I am balancing that, your two roles, your dual roles. But in his reasons, his statement of reasons, he does not disclose any understanding of those matters.

PN922

He did not seek to obtain that understanding from Mr Lapidos by virtue of any consultation with him and, in my submission, that is another material matter which should weigh on the Commission's consideration of the consultation issue. If the Commission pleases, that concludes my submissions in reply.

PN923

THE COMMISSIONER: Thanks, Mr Farouque. If the parties would wait for 10 minutes, I will see whether I am in a position to announce a decision.

PN924

MR MURPHY: Commissioner, just one point. My learned friend handed up these two e-mails. I just - the second of them, which is the request for leave for the whole of November, you will see that it is actually dated 6 November 2000 at 1.27, which is in the middle of the day, and I refer you to ASU11, which is the extant instruction in relation to the taking of leave and that requires when you are seeking leave that:

PN925

...applications to be made in writing and in advance with sufficient time for them to be approved in advance. Except in circumstances where the need for leave could not be reasonably anticipated, your team leader is to be given an appropriate amount of notice prior to commencement of leave, to allow for arrangements to be made in relation to workloads.

PN926

Now, here we are, four hours before the time, there is a request for leave.

PN927

THE COMMISSIONER: Thanks, Mr Murphy. I will adjourn for 10 minutes.

SHORT ADJOURNMENT [4.08pm]

RESUMED [4.15pm]

PN928

THE COMMISSIONER: I have considered in the circumstances of this case I will give a quick decision in the matter without all the necessary recitals that would normally occur in the decision. The matter has been before me since 15 January this year and it is an application pursuant to section 170LW of the Act for me to determine the proper application of the ATO (General Employees) Agreement 2001. I have been provided with a significant amount of material in advance which I have had the benefit of reading and also I have had the benefit now, today, of submissions in support of that material.

PN929

And that has enabled me to, now, having heard the parties and having read their material, to be able to make certain findings and indicate conclusions. So it is against that background that I now indicate these conclusions. To the extent that there was any failure to consult about matters which may have had a significant effect on Mr Lapidos I am satisfied that the matters before me have provided an opportunity for the ASU to well ventilate its concerns.

PN930

The ASU has had significant opportunity to deal with these matters against the background of the directions made by me on 22 January 2002. Those directions put on hold any implementation of the ATOs directions to allow for further discussions. To the extent doubt existed any argument regarding procedural fairness has now evaporated. I now turn to the directions issued by the ATO and whether they are inconsistent with the proper application of the agreement.

PN931

Firstly, I find that clause 120.2 does not provide an unfettered right of an employee of the ATO to, at the employee's discretion, take either paid or unpaid leave to undertake union activity. Further, I find that clause 120.7 does not provide an unfettered right to paid leave. I also find that the directions issued by Mr Charles must be seen in the context of the purpose for which they were said to be issued and the letter states:

PN932

The purpose of this letter is to clarify for you the extent to which the ATO is able to co-operate with your involvement in union activities so as to establish a reasonable balance between the time that you may draw on in your role as Secretary of the ASU (TOB) and the attention that the ATO expects you to give to your official duties.

PN933

Against that background the ASU has not made out a case that the directions issued are inconsistent with the ATO (General Employees) Agreement 2001. The argument and material put forward by the ATO is compelling. I will set aside the directions I made pursuant to section 111(1)(t) on 22 January 2002 in transcript and recorded in an amendment on 14 May 2002. This determination should not be seen as endorsing or criticising the merit of any particular direction, rather I have confined myself to the task of determining whether or not the directions are in themselves and in the context of this case inconsistent with the agreement.

PN934

I will do one other thing. I will give the ASU time to consider its options and to allow for any further discussions with the ATO having regard to the termination. On that basis the direction that I made on 22 January will be set aside from close of business on 30 June 2002. The matter is now adjourned sine die.

ADJOURNED INDEFINITELY [4.20pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #ASU3 22 PAGES OF CONTENTIONS DATED 06/05/2002 PN532
MFI #4 EXTRACT FROM MACQUARIE DICTIONARY DEFINING PRACTICABLE PN551
EXHIBIT #ATO1 DOCUMENT PN705
EXHIBIT #ATO2 DOCUMENT HEADED PROPER USE OF AUSTRALIAN TAXATION OFFICE INFORMATION TECHNOLOGY FACILITIES PN818
EXHIBIT #ASU5 COPY E-MAIL OF 21/09/2000 FROM MR LAPIDOS TO TEAM LEADER RE LEAVE IN OCTOBER 2000 PN899
EXHIBIT #ASU6 COPY E-MAIL OF 06/11/2000 FROM MR LAPIDOS TO TEAM LEADER RE LEAVE IN NOVEMBER 2000 PN900