ATO warning to services union members

By The Mandarin

Tuesday May 12, 2015

Email from David Miller to Jeff Lapidos

Subject: RE: ASU response to CPSU protected industrial action [SEC=UNCLASSIFIED]

Hi Jeff,

Thank you for providing me with the opportunity to provide feedback on your latest member update. I assume that the update was issued this morning in more or less that form.

The update says that ASU members can access flex leave or miscellaneous leave to support the nation-wide CPSU work stoppage tomorrow morning.  It also asserts that ATO managers should be granting such applications in the absence of clear operational requirements.

The ATO does not agree with this advice, Jeff. And for the reasons that follow, I request that you withdraw your update at the earliest possible time.

The work stoppage planned by the CPSU tomorrow was duly authorised by the protected action ballot of CPSU members conducted by the Australian Electoral Company last month. As you acknowledge in your update, so far the ASU has made a tactical decision not to pursue a campaign of industrial action and to direct its resources elsewhere.

The suggestion that non-CPSU members can effectively and lawfully participate in the stoppage by simply lodging a flex leave or misc. leave application at short notice appears to be a blatant attempt to circumvent the very statutory requirements which the ASU has put-off considering until next month.

Genuine applications for leave at a time coincidental with a period of industrial action may be approved, subject to business operations. But this is clearly not what you are proposing.

Flex leave and misc. leave is not available to allow non-union members to support or participate in industrial action being taken by other employees. Your advice to the contrary, on the eve of the CPSU stoppage, poses a real risk that ASU members will unwittingly engage in unprotected industrial action.

In these circumstances, should an ASU member participate in the industrial action tomorrow morning, they would be doing so unlawfully (i.e. engaging in unprotected industrial action) triggering our obligations under s 474 of the Fair Work Act.

I am not aware of the case to which you refer from a couple of years ago. But the collective bargaining scheme of the Fair Work Act is premised on industrial action being authorised by a majority of union members via a protected action ballot.

In any event, given that up to 4,500 CPSU members may participate in the work stoppage, the ATO’s operational requirements during this period will likely require our remaining workforce to be present for the duration of the stoppage

Additionally, clause 81.29 of the ATO Enterprise Agreement 2011 states “employees participating in industrial action during their regular hours, regardless of what those hours are on a particular day, are not entitled to make use of flextime or flexible working arrangements to cover any such period of industrial action.”

For the avoidance of doubt, the ATO recognises the legitimate rights of each individual bargaining representative, including the ASU, to seek orders requiring a ballot to be conducted to determine whether relevant employees wish to engage in protected industrial action under the Fair Work Act should they feel it is in their interests in the course of negotiating our new enterprise agreement.


David Miller
Assistant Commissioner | Workplace Relations | ATO People
Australian Taxation Office
ATO | Working for all Australians

Read more at The Mandarin: ATO workers strike, further agencies to follow

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