Australia, Federal Court of Australia, 14 October 2022, Municipal Administrative Clerical & Service U v Com Taxation

The Court initially defined the relevant parties with reference to the FW Act. The Court then referred to the current ATO “Working from Home Policy” which was referred to in Clause 50 of the employee Enterprise Agreement (EA). The Court then reviewed the ATO communications and consultation process in relation to the shift to working from home, in particular their attempts to engage with the two main trade unions representing the ATO staff, one of which being the Applicant, the Australian Services Union (ASU). The Court included in its reasons lengthy transcripts of cross examination of all parties who provided affidavit evidence particularly the ASU representative.

The Court then carefully considered the EA which the employees were subject to. Part of this consideration included case law in relation to how such Agreements were to be construed and which held that these should not be interpreted “in a vacuum divorced from industrial realities”: City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; (2006) 153 IR 426 at [57].

The Court then made reference to the relevant principles applicable to the interpretation of an enterprise agreement as outlined in James Cook University v Ridd [2020] FCAFC 123; (2020) 278 FCR 566, Griffiths and Derrington JJ said at [65]. These included principles such as the need to refer to the ordinary meaning of the words and for the interpretation to take a purposive rather than a “narrow and pedantic” approach. Furthermore, the document must be read in its entirety and in context with a generous construction preferred over a “strictly literal approach”.

With these principles in mind, the Court then turned its attention to the relevant clause 50 in the EA. It was the Applicant’s position that clause 50 covered all working from home agreements. However, the Court held that clause 50 covered circumstances where an employee requested permission from their employer to work from home and not in circumstances of the employer requesting the employee to work from home. In the Court’s interpretation, clause 50 does not apply to any decision of the ATO that employees must or should work from home for a period. The Court found that, at the commencement of the pandemic, the ATO had not directed employees to work from home. Rather, it had merely encouraged and facilitated employees to work from home and many chose to do so. The Court found that everything the ATO did as part of its Covid response was done of its own initiative, not at the request of employees, and therefore not under clause 50 of the EA.

The Court held that clause 50 did not cover all possible circumstances where an employee might work from home, and did not supplant the ATO’s entitlement to make broad requests or directions with respect to its operating requirements. The request for employees to work from home where possible at the commencement of the pandemic was therefore not subject the obligations contained in clause 50.

In relation to the allegation that the ATO made false and misleading statements regarding the work from home policy, the Court found in favour of the Respondents.

The Court dismissed the Application and concluded that the pandemic was an exceptional circumstance and the ATO was an essential service which had to keep operating. Whilst acknowledging that communication could have been clearer, the Court held that the ATO officers were acting in good faith enabling the ATO to keep functioning and not exposing employees to unacceptable health risks.