Deciding body (English)
Type of body
Type of Court (material scope)
- Administrative Court
- Civil Court
- Constitutional Court
Type of jurisdiction
Type of Court (territorial scope)
Further areas addressed
Outcome of the decision
The Applicants were the trade union representing employees of the Australian Taxation Office (ATO). They claimed that the work from home (WFH) arrangements imposed upon their members by the ATO during the COVID-19 pandemic breached their Enterprise Agreement (EA). The Applicants sought a declaration by way of remedy stating that the Respondents, the Commonwealth of Australia, and certain officers of the ATO, contravened various provisions of the Fair Work Act 2009 (Cth) (the FW Act) because the WFH arrangements were in breach of the EA.
The Applicants argued that clause 50 of the EA, which ordinarily allowed for employees to make WFH arrangements by agreement with their managers, applied to the COVID-19 response and imposed obligations on the ATO regarding the end of those arrangements. The decision of the ATO to recall employees back to their officers after a period of WFH was argued to be a breach of this provision.
The Applicants also sought pecuniary penalties for false and misleading statements made.
The application was dismissed on the basis that clause 50 was interpreted to apply only to situations where an individual employee requested a WFH arrangement, and did not supplant the ATO’s right to make directions for all staff during the pandemic. There was therefore no breach of clause 50, and no consequent breach of the FW Act.
Facts of the case
The Applicants represented the employees of the Australian Taxation Office (ATO). In early 2020 the ATO implemented a work from home arrangement for their staff in response to the initial phase of the COVID-19 pandemic. The Applicants claimed that the work from home arrangements imposed upon their members by their employer breached their Enterprise Agreement as they failed to adequately consult the employees and did not include the provision that it could be terminated by agreement or with 4 weeks notice. The Applicants argued that the Respondents, the Commonwealth of Australia, and certain officers of the ATO, contravened various provisions of the Fair Work Act 2009 (Cth) (the FW Act) by their conduct in implementing work from home arrangements. The Applicants claimed the ATO had made a number of false and misleading statements in relation to the work from home arrangements in breach of the FW Act.
Type of measure challenged
Measures, actions, remedies claimed
Individual / collective enforcement
Nature of the parties
Type of procedure
Reasoning of the deciding body
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  FCA 813; (2006) 153 IR 426 at .
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  FCAFC 123; (2020) 278 FCR 566, Griffiths and Derrington JJ said at . 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.
Conclusions of the deciding body
Fundamental Right(s) involved
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
General principle applied
Balancing techniques and principles (proportionality, reasonableness, others)
The Court referred to the relevant legislation, the Enterprise Agreement, the evidence of the Applicant and Respondent and relevant case law. It adopted what could be described as the “reasonable person” test in concluding that the ATO management did the best they could in extraordinary circumstances and any reasonable person looking in would see they were not attempting to subvert the Enterprise Agreement or take away workers’ rights but just trying to operate an essential government organization of over 20,000 employees during a pandemic.