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Tax officers take ATO HR bosses to Federal Court

09 December 2020 By ASU


The Australian Services Union has issued proceedings in the Fair Work Division of the Federal Court for breach of workplace laws against the Commonwealth Government, the Commissioner of Taxation as head of the Australian Taxation Office, ATO Chief Operating Officer Jacqui Curtis, Deputy Commissioners of Taxation Jeremy Geale and Bradley Chapman and Assistant Commissioner Jeremy Moore. The ASU is alleging that ATO senior executives misrepresented to more than 17,000 tax officers their workplace rights to work at home during the COVID-19 pandemic, took adverse action against these employees and breached the ATO’s enterprise agreement which contains these workplace rights. 

Why we are taking this legal action

Tax officers appreciated it when the ATO moved quickly in late March 2020 to encourage them to work at home, which protected us against the COVID-19 virus.  The Tax Office made special arrangements so we could connect to ATO systems from home.  Over 11,000 tax officers were working at home after just a few weeks. We assumed that these arrangements were protected by the ATO’s enterprise agreement. The problems began in early April 2020.  The ATO decided it needed to train staff on the Government’s new JobKeeper, Cashflow Boost and other economic Programs and this had to be done at their office, not at home.  Managers were required to direct their staff to return to work at their office with inadequate notice. 

The ATO Enterprise Agreement requires a minimum of one week’s notice to suspend a working at home arrangement, which can be done for up to eight weeks.  Permanent termination of working at home arrangements requires a minimum of four week’s notice. The ATO is also obliged to take account of any hardship a temporary suspension might cause.  Of course ATO employees can agree to a reduced notice period.  Large numbers of tax officers were required to take on new duties, often at levels well below their classification level, to help the Tax Office undertake these large, but temporary programs.  Tax Officers did this willingly because we recognised the importance of these programs for our fellow Australians.  We knew our work would help keep hundreds of thousands of businesses going and help millions of employees support their families.  All we expected in return was for the ATO to respect our commitment and comply with our workplace rights.  In contrast, we found the ATO said our workplace rights to working at home did not apply because the situation was temporary and exceptional. 

Tax officers are used to working with rules.  We interpret and apply them every day.  We use complex systems to do our work.  We get into the detail.  We make decisions after considering relevant facts and law.  We know we need to be flexible in our approach to our work and to the changing work practices that have been part and parcel of our working lives for many years.  However, tax officers cannot accept the ATO’s senior HR management deciding when the rules apply and when they don’t.  Even the Australian Public Service Commission advised that APS Agencies “should be mindful of the provisions of their enterprise agreement” when facilitating working from home for their employees during the pandemic.

In summary, the ATO terminated existing working at home arrangements, without the required notice, to replace them with their new COVID working from home arrangements.  The new COVID arrangements required employees to return to work at their office whenever their manager decided it was appropriate. The ATO then required its managers to bring staff temporarily back to their office for training or when their access to systems did not work or work they said could not be done at home.  But all this occurred without giving proper notice or taking hardship into account as required by our enterprise agreement. 

The ASU raised our concerns with the Tax Office in early April 2020.  We got the brush off in response.  We formally escalated our concerns, first to Commissioner Chris Jordan and then to the Fair Work Commission.  The ATO continued their brush off.  We were left with no choice.  We believe the ATO is wrong to think it can pick and choose when our enterprise agreement applies.  We are now asking the Federal Court to rule on this dispute.