#dismissed: High Court upholds dismissal of public servant for anonymous tweets critical of government

In a landmark case on whether a public servant's use of social media can be a valid reason for terminating their employment, the High Court has unanimously upheld restrictions on a public servant's ability to make public comment where it may damage the integrity and good reputation of the public service.

In doing so, the Court has emphasised the importance of an apolitical and professional public service that will faithfully implement accepted government policy, irrespective of employees' personal political beliefs.

In Comcare v Michaela Banerji [2019] HCA 23 (7 August 2019), a now former Department of Immigration employee Ms Michaela Banerji had an anonymous twitter account where she was highly critical of Government and Opposition immigration policies, members of Parliament and the Department of Immigration.  After an investigation uncovered her identity, she was dismissed from her role for inappropriately using social media in contravention of the Public Service Act 1999 (Cth) (PS Act), the Australian Public Service (APS) Code of Conduct and APS Values.

Ms Banerji argued that the PS Act and APS Code of Conduct imposed an unjustified burden on the implied freedom of political communication under the Constitution.

The Court unanimously rejected this argument, emphasising that the implied freedom of political communication is not a personal right to free speech.  The Court held that the restrictions placed on political communication by public servants under the PS Act were consistent with the constitutionally prescribed system of representative and responsible government, namely the maintenance and protection an apolitical public service.

However, the Court emphasised that any action taken in response to a breach of the PS Act or APS Code of Conduct must be proportionate to the nature and gravity of the employee's misconduct.  Depending on the circumstances, this may range from a simple reprimand to the termination of a person's employment.  In responding to a potential breach, an employer must act reasonably, provide procedural fairness and take into account the personal circumstances of the employee.

A summary of the Court's decision can be found here.

VGSO's Workplace Relations and Occupational Safety Branch has significant expertise and experience in advising employers on potential breaches of the Code of Conduct for Victorian Public Sector Employees and Victorian Public Sector Values.  We also run training programs for human resources professionals in the public sector, including on the use of social media in the workplace. 

VGSO's Constitution and Advice Team also has significant experience and expertise in dealing with the intersection between the implied freedom of political communication and state laws, including decision-making under those laws.

If you work in the public sector and require further information please contact us:

Workplace Relations team

Frances Anderson
Assistant Victorian Government Solicitor

Ronan O'Donnell
Solicitor, Workplace Relations and Occupational Safety

Constitution and Advice team

Alison O'Brien
Assistant Victorian Government Solicitor

Jessica Cleaver
Managing Principal Solicitor, Constitution and Advice team

Maya Narayan
Principal Solicitor, Constitution and Advice team


This blog was prepared with the assistance of Margie Brown, Law Graduate. 

Enterprise bargaining - proposed changes to the Referral Act

Last week the Victorian Government introduced into Parliament proposed legislation to expand the referral of industrial relations matters to the Commonwealth under the Fair Work (Commonwealth Powers) Act 2009 (the Referral Act).

The Fair Work (Commonwealth Powers) Amendment Bill 2017 (the Bill) proposes to enable public sector employers and employees (excluding law enforcement officers) to bargain over, and reach agreement on, matters relating to the number, identity or appointment of employees.

Background

Australia's federal workplace relations laws rely primarily on the Commonwealth's power to legislate with respect to constitutional corporations.

Under the Referral Act, the Victorian Government referred certain industrial relations matters to the Commonwealth to bring other Victorians into the federal industrial relations system. However, the Government excluded from the Referral Act certain matters relating to public sector employees.

This exclusion was based on an understanding of the implied limits on Commonwealth legislative power. In Re Australian Education Union, the High Court held that certain matters relating to State employees were critical to a State's capacity to function as a government and therefore beyond the Commonwealth's legislative power. These matters included a State's right to determine:

• the number and identity of its employees;
• the length of employees' employment; and
• the number and identity of those whom it wishes to dismiss on redundancy grounds.

In 2015, however, the Full Federal Court held in United Firefighters' Union of Australia v Country Fire Authority that, where there was voluntary agreement about such matters, there was no practical impairment of the State's capacity to function as a government. As a result of this decision, such matters may be included in enterprise agreements that cover constitutional corporations and their employees.

The Bill

The Bill proposes to refer to the Commonwealth certain matters concerning the number, identity and appointment of public sector employees (excluding law enforcement officers). The Bill is relevant for those employees in the public sector (excluding law enforcement officers) who are not employed by constitutional corporations and, accordingly, is relevant for the employers of such employees.

The proposed changes will enable those public sector employees and their employers to include in enterprise agreements enforceable terms dealing with matters such as minimum staffing levels, staffing ratios, or the number of casual, seasonal or fixed term employees.

The Bill also proposes to empower the Fair Work Commission to make workplace determinations in respect of those public sector employees and their employers which include agreed terms dealing with these matters.

However, the Bill does not propose to:

• empower the Fair Work Commission to arbitrate bargaining disputes about these matters, or make an award including these matters in relation to public sector employers and employees; or
• permit these matters to form part of an enterprise agreement, workplace determination, or other transferable instrument that applies to public sector employers and employees as a result of a transfer of business.

Accordingly, terms dealing with the number, identity and appointment of public sector employees may only be included in an instrument by agreement. As is the case with all terms to be included in enterprise agreements, employers will need to carefully consider the long-term implications.

Jacqueline Parker
Assistant Victorian Government Solicitor
03 90323011

This blog was prepared with the assistance of Jack Maxwell, Trainee Lawyer, and Emma Buckley Lennox, Seasonal Clerk.

For their eyes only? When can an employer access and use information on an employee's Facebook page?

Supreme Court confirms public sector employer has privacy obligations with respect to personal information on an employee's Facebook page but may use that information where there's a legitimate reason to do so (such as reasonably conducting a legitimate employment misconduct investigation).

A recent decision of the Supreme Court of Victoria (Jurecek v Director, Transport Safety Victoria [2016] VSC 285) provides guidance about when a public sector employer may access an employee's social media publications without breaching privacy laws.
The proceeding was brought under the Information Privacy Act 2000 (the Act), but the Court's findings are relevant to the Privacy and Data Protection Act 2014  because the Information Privacy Principles (IPPs) under both Acts remain the same in all material respects.

The Facts

The employee engaged in various Facebook activity, including posts and messages that were abusive and critical of her employer and other employees.  The employee operated her Facebook page under a pseudonym with privacy settings, although these did not fully restrict access to the Facebook page.
The employer was made aware of the activity and initiated a disciplinary investigation.  For the purposes of that investigation the employer accessed the employee's Facebook page, initially without her knowledge, and took screenshots of the content.

The employee was disciplined following findings of misconduct.

The employee lodged a complaint with the Privacy Commissioner, alleging that the employer had breached the IPPs by accessing her Facebook page.  The Privacy Commissioner dismissed the complaint and the matter was referred to the Victorian Civil and Administrative Tribunal (VCAT).  VCAT also dismissed the complaint and the employee appealed VCAT's decision to the Supreme Court.

Social media posts may be 'personal information' for the IPPs

The employer contended that, because the employee’s Facebook posts were accessible by anyone, they possessed the character of a 'generally available publication' and were therefore exempt from the operation of the IPPs under the Act.

The Court disagreed, taking the view that the mere publication of information on Facebook or the Internet does not necessarily make it a ‘generally available publication’.
Whether such information is a 'generally available publication' will depend on the facts and circumstances as a whole, the nature of the information, the prominence of the site, the likelihood of the access and the steps needed to access the site.

In this case, the Court found that the employee's Facebook posts were not 'generally available' and, because the posts expressed her opinion, they satisfied the definition of ‘personal information’ for the purposes of the Act.  Accordingly, the IPPs applied and the Court needed to determine whether they had been breached.

Employers may access an employee's social media posts if reasonably necessary for an investigation

The employee claimed that the employer was not lawfully entitled to access and collect her personal information (ie her Facebook posts) because such collection was not 'necessary for one or more of the organisation's functions or activities'.

The Court agreed that the employer could only access and collect the employee's personal information if it was necessary for the organisation's functions or activities.  However, the Court found that the disciplinary investigation was a function of the employer’s organisation and that accessing the employee’s Facebook account for that purpose was legitimate and necessary and not unlawful, unfair or unnecessarily intrusive.

Employers need to inform employees when they collect personal information from social media, but not necessarily immediately

The employer delayed notifying the employee about its collection of her personal information.  The employee claimed that this delay constituted a breach of the IPP notification obligations.
The Court rejected that claim.  It held that the IPPs do not impose an obligation of immediate notification but rather an obligation to take such steps as early as practically possible.  In this case, it was reasonable for the employer not to notify the employee earlier because it could have jeopardised the integrity of the disciplinary investigation.

Key implications

• Public sector employers may collect personal information from an employee’s social media page, but only when it is necessary for one or more of the organisation’s functions.
• If access to an employee's social media page is reasonably necessary for a disciplinary investigation, accessing that page and collecting relevant information is unlikely to breach the IPPs.
• If an employee's personal information is collected, employers must take steps to notify the employee as early as is reasonable in the circumstances.  Employers do not need to notify an employee immediately if doing so would jeopardise a disciplinary investigation or other legitimate purpose.

As the Court noted, 'matters of fact and degree are involved' and it is necessary to balance, 'in a reasonably proportionate way', 'what is at stake for the individual' with the 'nature and importance of any legitimate purpose' and 'the extent of the interference'.  This means that each situation needs to be considered on its merits.

To discuss workplace relations further contact:

Rosemary Robins
Solicitor
Workplace Relations & Occupational Safety
9032 3036

Jacqueline Parker
Assistant Victorian Government Solicitor,
Workplace Relations & Occupational Safety

9032 3011

Superannuation - just for employees?

Some contractors are entitled to be paid superannuation or their principal will be liable for the superannuation guarantee charge.

On a couple of occasions recently, we have found that this obligation to pay superannuation has been overlooked when a standard template contract has been used to engage a service contractor. 

Template contracts often assume agreements will be reached with a body corporate or that a single one-off service will be provided.  Trouble arises when an individual contractor is engaged for their labour for an extended period of time.

The extended definition of 'employee' in the SGA Act

Sub-section 12(3) of the Superannuation Guarantee (Administration) Act 1992 (SGA Act), extends the definition of employee beyond the traditional employment relationship to include certain contractors.  The extended definition of 'employee' provides that:

• If a person works under a contract that is wholly of principally for the labour of the person, the person is an employee of the other party to the contract.

The Australian Taxation Office Superannuation Guarantee Ruling (SGR 2005/1) provides guidance as to the operation of this sub-section and indicates that it will extend to contracts for services where an individual contractor is engaged either wholly or principally for their labour.

The approach taken by courts and tribunals has been to consider the following three questions, with reference to the terms of the contract and the conduct of the parties subsequent to the contract:

• Is the contractor remunerated either wholly or principally for their personal labour or skill?
• Does the contractor perform the contractual work personally?
• Is the contractor paid to achieve an outcome or result?

If the answer to the first two questions is 'yes', and the answer to the third question is 'no', the contractor will come within the extended definition of employee in sub-section 12(3) of the SGA Act and the employer will be obliged to pay superannuation contributions on that contractor's behalf.

Cost to employers

If an employer has an obligation to make superannuation payments to a contractor under sub-section 12(3) of the SGA Act and has not done so, the employer will be required to pay to the Australian Taxation Office the applicable Superannuation Guarantee Charge.

What should employers do?

Employers should consider inserting into their template service contract an optional superannuation clause to serve as a reminder to give consideration to this issue before agreeing on amounts payable and finalising the contract. 

Where possible the contract should also include provisions that make it clear that the contractor is able to sub-contract or delegate the work, or payments should be structured so that the contractor is paid for achieving a particular task instead of being paid at hourly rates.

If you are a Victorian public sector employer and would like more information about your obligation to make superannuation payments on behalf of service contractors, please contact:


Jacqueline Parker
Assistant Victorian Government Solicitor
9032 3011

Rosemary Robins
Solicitor
9032 3036

Social media - when can you dismiss a public sector employee for inappropriate comments?

The Fair Work Commission has recently handed down a decision that sheds light on the circumstances in which a public sector employer can (and cannot) dismiss an employee for his or her comments on social media  (Starr v Department of Human Services [2016] FWC 1460 (29 March 2016)).

While the decision is subject to appeal, the result at first instance shows that the path to dismissing an employee on the grounds of inappropriate social media comments is not always smooth.

The Facts

The Commonwealth Department of Human Services (DHS) terminated the employment of a Centrelink officer when it found that he had made a number of negative comments relating to his work on social media.

Over a three year period, the employee had posted numerous adverse comments about Centrelink and its customers in online forums such as 'Whirlpool' and 'Sportal'.

Following a misconduct investigation,  DHS found that the employee's negative and inappropriate comments on social media had breached s 13 of the Public Service Act 1999 (Cth), including by breaching the Australian Public Service Values and Code of Conduct and Centrelink's Social Media Policy, and had brought Centrelink's reputation into disrepute.

Offensive online posts a valid reason for dismissal

The Commission found that the following posts by the employee gave rise to a valid reason for his dismissal:

• Posts in which the employee referred to DHS's clients as "spastics and junkies", "whinging junkies" and "junkies";
• Posts in which the employee commented that a large proportion of clients seeking exemption from the work search requirements of Newstart did not have genuine reasons for doing so; and
• Posts in which the employee stated that DHS's processing times were "utterly disgraceful", that he was "embarrassed to work there" and "there isn't a damn thing those of us in the offices can do about it".

However, the Commission rejected DHS's submission that the employee's criticism of the Government itself constituted a valid reason for his dismissal. The Commission held that the relevant sections of the Public Service Act were not sufficiently clear and unambiguous to entirely displace public servants' common law rights to freedom of expression and political communication.

Dismissal unfair despite valid reason

Despite the Commission agreeing that there was a valid reason for the dismissal, it ultimately found that the dismissal was harsh in the circumstances.  The Commission arrived at this finding because of:

• The lack of evidence to substantiate actual damage to the reputation of DHS by the employee's posts;
• the 'situational' and 'impulsive' nature of the employee's posts, which were found to have been 'made out of frustration and not maliciously' rather than in a deliberate attempt to 'publically damage the reputation of [DHS]';
• the employee's genuine remorse and regret for his conduct; and
• the employee's 20 years of service and limited alternative job prospects.

Having found the dismissal to be unfair, the Commission ordered that the employee be reinstated.
No orders were made in relation to lost remuneration as the Commission considered that any loss of income constituted a 'suitable sanction' for the employee's improper conduct.

We understand that the decision is now subject to appeal by the DHS.

Key lessons for public sector employers

• The mere fact that a public servant has made inappropriate or political comments on social media may not be sufficient to warrant dismissal.
• Training employees on a social media policy may bolster an employer's defence to an unfair dismissal claim.
• In weighing up whether a public employee has breached his or her duties, it will be important to analyse whether the impugned conduct has actually compromised the employee's work or damaged the employer's interests or reputation.  Just because an online post is embarrassing or offensive, it may not have sufficient impact to warrant dismissal.
• In all cases, employers must weigh up the nature and gravity of the conduct against factors such as the length and quality of the employee's service, the frequency and extent of any offensive comments and the circumstances in which the comments were made.

We’ll provide an update when the Full Bench hands down its decision.

For more information please contact:

David Catanese
Managing Principal Solicitor
9032 3040

Nicole Lorenz
Solicitor
9032 3051

Employer runs 'fowl' of procedural fairness

On 7 May 2015, the VGSO hosted its seminar. 'An essential ingredient - Procedural fairness in workplace issues: a panel discussion', to a full house of Victorian government agency staff.  Our panel members, Jacqueline Parker, Assistant Victorian Government Solicitor, Joanne Kummrow, Special Counsel, Alice Felman, Principal Solicitor, Andrea Lester, Investigator and Jim McKenna, Barrister, provided insights into the key elements of procedural fairness in the workplace and the importance of conducting thorough and unbiased investigations.

That same week, the Fair Work Commission delivered its decision in Heidi Cannon v Poultry Harvesting Pty Ltd, a sobering example of the consequences of failing to afford procedural fairness.

The untimely demise of a number of chickens

Ms Cannon was dismissed from her employment with Poultry Harvesting for allegedly being intoxicated at work, and sleeping in a vehicle during her shift.  Her neglect of duties led to the 'smothering' of a number of chickens.

After her supervisor (Mr Germinian) received a call from a co-worker reporting that Ms Cannon was 'useless', and apparently intoxicated at work, he attended the site.  Upon being asked several times, Ms Cannon denied that she was intoxicated.  She was dismissed after her supervisor smelt alcohol on her breath.

Later that afternoon, Mr Germinian refused to reconsider Ms Cannon's dismissal on the basis that Ms Cannon had lied to him about her intoxication.  Mr Germinian relied on information from another employee that Ms Cannon's partner had advised him that Ms Cannon had been too intoxicated to drive to work.

Although Ms Cannon admitted to not driving to work because she was concerned she might be over 0.05 if breathalysed, she did not consider herself to be intoxicated.

Ms Cannon made an application to the Fair Work Commission for an unfair dismissal remedy.

No valid reason to dismiss

The FWC found that there was no valid reason for Ms Cannon's dismissal.  Its reasons included:

• Failure to investigate (no steps taken by employer to objectively assess Ms Cannon's condition and reliance on hearsay information about Ms Cannon's fitness to drive) 
• Failure to apply policies (employer did not follow requirements of its own policies which required employees to be stood down from work until they could work in a safe manner, to be issued with a written warning and to be advised of the availability of counselling)  
• Evidence did not support reason for dismissal (despite concerns that Ms Cannon's intoxication could cause a health and safety risk, Ms Cannon was permitted to work until the end of her shift).

No procedural fairness

The FWC also found that Ms Cannon had been denied procedural fairness as a result of a failure to provide her with an opportunity to respond to allegations or to warn her that she was not permitted to drink any amount of alcohol prior to her shift.  The FWC took into account the following:

• the lack of engagement with Ms Cannon about her views regarding the allegations that she was intoxicated or that she had lied about her alleged intoxication; and
• the lack of an opportunity for Ms Cannon to respond to the allegation by Mr Germinian that Ms Cannon had brought into the premises a can of alcoholic beverage that Mr Germinian found in the shed.  

The Cannon case highlights many of the key themes discussed at the VGSO seminar, including:

• ensuring employees are aware of the standards of behaviour to which they are being held to account, such as their obligations under relevant instruments (eg the Code of Conduct, the Public Administration Act 2004 or the VPS Determination); 
• following the requirements set out in policies or instruments with respect to the management of misconduct or performance processes;
• informing the employee, at the commencement of the process, of the potential outcomes and consequences for their employment; and
• providing a genuine opportunity for the employee to respond or to offer mitigating circumstances with respect to the allegations, the findings and the proposed outcome.

For further advice on your agency's obligations of procedural fairness in the workplace, please contact:

Romina Woll
Senior Solicitor
t  9032 3026
romina.woll@vgso.vic.gov.au

Vicki Moulatsiotis
Principal Solicitor
t  9032 3012
vicki.moulatsiotis@vgso.vic.gov.au

Sporting chance for all - Equality for transgender people in sport and work

The recent media coverage of a high profile rugby union player reporting the use of derogatory slurs on-field highlights the issue of discrimination in sport.  This incident is timely as, in January, the Victorian Equal Opportunity & Human Rights Commission (VEOHRC) released a new guideline titled Transgender People and Sport.  This follows the release of the previous guideline, Transgender People at Work (updated in July 2014).

The Equal Opportunity Act 2010 (EO Act) protects transgender and intersex people from discrimination on the basis of their gender identity in a number of areas of public life.  In addition to sport and work, these include education, provision of goods and services, accommodation and clubs.

New guidelines

The two guidelines outline legal obligations under the EO Act in relation to sport and work, as well as practical information about gender identity issues, including lists of useful terms, case studies and decision-making steps.  While not legally binding, a court or tribunal may consider whether the guidelines have been complied with when hearing a discrimination complaint.

Discrimination on the basis of gender identity

The EO Act protects transgender and intersex people from both direct and indirect discrimination on the basis of their gender identity (ss 6(d) and 7).  Direct discrimination occurs when a person is treated, or proposed to be treated, unfavourably because of their gender identity (s 8(1)).  Indirect discrimination occurs when an unreasonable requirement, condition or practice is imposed, or proposed to be imposed, which has, or is likely to have, the effect of disadvantaging a person with a particular gender identity (s 9(1)).

It is also unlawful to ask a person to specify their gender identity where there is no legitimate, non-discriminatory reason for needing this information (s 107).

'Gender identity' is defined in s 4 of the EO Act as the identification by a person of one sex (or of indeterminate sex) as a member of another sex on a genuine basis.  This identification could be by:

• assuming characteristics of the other sex, whether by medical intervention, style of dressing or otherwise; or
• by the person living, or seeking to live, as a member of the other sex. 

The rights of transgender and intersex people are also protected under the Charter of Human Rights and Responsibilities Act 2006.

Transgender people and sport

This guideline is aimed at sporting organisations, clubs and staff.  It will also be useful for schools and universities.  The guideline explains that it is unlawful to discriminate against a person on the basis of their gender identity by failing to select them or excluding them from participating in sporting teams and activities, unless a relevant exception applies (s 71).  It also explains that it is against the law to discriminate against a person on the basis of their gender identity in club membership, including sporting clubs (ss 64 and 65), although it may be lawful for clubs to limit membership to a particular sex (s 68).

Transgender people at work

This guideline is aimed at all employers, and is relevant to all government departments and public entities.  VEOHRC has also produced resources for developing a transition plan for transgender employees as well as a policy template.  These documents will be useful for human resources professionals and anyone with responsibility for interviewing or recruiting new employees.

The guideline explains that it is unlawful to discriminate against job applicants and employees because they are transgender (ss 16 and 18).  The only exception is if there is a 'genuine occupational requirement' for employees to be of a particular sex (s 26).

If you are in the Victorian Government and would like further information about your responsibilities under the Equal Opportunity Act 2010, please contact:

Catherine Roberts
Managing Principal Solicitor
8684 0247
catherine.roberts@vgso.vic.gov.au

David Catanese
Principal Solicitor
9032 3040
david.catanese@vgso.vic.gov.au

Changing Times: Sex discrimination damages on the rise as the 'old range' debunked by 'community standards'

The Full Court of the Federal Court has blown the lid off what key commentators have been calling the discrimination damages time capsule. In Richardson v Oracle an award at trial of $18,000 for pain and suffering caused by sexual harassment at IT company, Oracle, was increased to $100,000 on appeal. The decision has some lawyers quoting Bob Dylan's 'the time's they are a-changin'. So, what happened, and why the revolutionary tenor?

The Full Court did two main things - both are critical for public sector employers who could be liable for unlawful conduct by their employees.

1. 'Unofficial range' rejected

Justice Kenny (with whom Besanko and Perram JJ agreed) held that the $18,000 awarded by the trial Judge was 'manifestly inadequate' compensation for Ms Richardson's pain and suffering. In doing so, the Court rejected a long-standing unofficial range of between $12,000 and $20,000 within which damages for all but the most extreme sexual harassment injuries have previously been awarded.

While her Honour accepted that the trial Judge fixed a sum squarely 'within the range', this was not, as her Honour put it, 'the end of the matter'. The Court identified a 'substantial disparity' between Ms Richardson's compensation and the amounts now awarded outside the sex discrimination space to victims of workplace bullying and harassment (especially in Victoria). After highlighting the dangers of relying too heavily on an unofficial range at all, the Court rejected it. The range had, her Honour stated, 'remained unchanged' for over a decade 'notwithstanding that the community has generally gained a deeper appreciation of the experience of hurt and humiliation that victims of sexual harassment experience'.

Once the range was cast aside, the Court assessed Ms Richardson's loss by reference to 'general standards prevailing in the community' regarding the value of her pain and suffering: In this case, the amount was determined to be $100,000.

2. Damages awarded for Ms Richardson's 'choice to leave'

Perram and Besanko JJ (with whom Kenny J agreed) also overturned the trial Judge's finding that Oracle was not liable for Ms Richardson's financial loss upon leaving the company. Although she was not constructively dismissed or demoted, Oracle was still liable for Ms Richardson's loss. The clincher here was causation. Even though Oracle had not 'forced her out', it was liable once she 'chose' to leave because this 'choice' was itself caused by the sexual harassment. Such an analysis is not entirely new, but in Richardson the Court applied these principles to what may be a very common series of events where sexual harassment is proven.

TAKE HOME POINTS

So what does this mean for the public sector? In short, it seems the times are a changin'.

This decision confirms that, as always, employers must take sexual harassment in the workplace seriously. A failure to do so can now amount to higher damages than traditionally awarded against employers who are held to be vicariously liable for an employee's discriminatory conduct. The impact of the sexual harassment in this case, although significant, was not considered to be traumatic. Nevertheless, Ms Richardson was awarded $100,000 in recognition that 'community standards' and expectation have altered.

It is also important to bear in mind that these principles could be applied more generally in cases involving unlawful discrimination on the basis of other attributes, such as disability, race or age discrimination. The decision, therefore, has significant implications beyond cases involving sexual harassment.

Richardson is a timely reminder to review your agency's anti-discrimination policies and provide appropriate training to ensure that all employees are aware of the law and their obligations under it.
For further information about the case, advice on your agency’s anti-discrimination policies or how to keep up with the law involving anti- discrimination, please contact:

Vicki Moulatsiotis
Principal Solicitor
t 9032 3012
vicki.moulatsiotis@vgso.vic.gov.au

Katherine Francis
Senior Solicitor
t 9032 3014
katherine.francis@vgso.vic.gov.au

Hollie Kerwin
Solicitor
t 8684 0241
hollie.kerwin@vgso.vic.gov.au

Does that clause have any claws? Re AEU and Public Sector Industrial Relations

The Federal Court’s recent decision in United Firefighters Union of Australia v Country Fire Authority [2014] FCA 17 (UFU v CFA) raises some important issues for public sector employers about the validity of certain clauses being included in industrial instruments.

The United Firefighters Union (UFU) instituted a claim against the Country Fire Authority (CFA) on the grounds that the CFA was not complying with Clause 27 of the Country Fire Authority/United Firefighters Union of Australia Operational Staff Enterprise Agreement 2010 (Agreement). Clause 27 imposed an obligation on the CFA to recruit 342 career firefighters over a six year period. The CFA filed a cross-claim seeking declarations that Clause 27, and a number of other clauses in the Agreement, were invalid on the basis that they were inconsistent with the Melbourne Corporation principle as it was applied in Re Australian Education Union; Ex parte Victoria [1995] HCA 71 (Re AEU).

Melbourne Corporation principle

The Melbourne Corporation principle in the context of UFU v CFA can be expressed most simply as a principle imposed by Australian courts to the effect that the Commonwealth Constitution contains an implied limitation on federal legislative power which prohibits a law from operating to destroy or curtail the continued existence of the States or their capacity to function as governments.

This principle has been applied by the High Court in an industrial context in Re AEU, where it was held that the principle extended to the State's right to determine:

• the number and identity of its employees;
• the term of appointment of those employees; and
• the number and identity of employees it wishes to make redundant.

Arguments

The UFU conceded that the clauses fell within the Re AEU categories. However, they argued that because the CFA, and thereby the State of Victoria, had agreed to the clauses being included in the Agreement, they did not infringe Re AEU because they had not been imposed on the State by the Commonwealth.

The CFA argued that because the clauses in the Agreement were only given effect by certification of the Fair Work Commission (FWC), and because the source of the FWC's power is Commonwealth legislation (i.e. the Fair Work Act 2009 (Cth) (FW Act)), clauses in the Agreement which infringe Re AEU would be invalid and unenforceable on the basis that the FWC had no power to certify them.

The decision

Justice Murphy of the Federal Court agreed with the CFA's submissions and held that the clauses were invalid and unenforceable, even though they had been entered into voluntarily by the CFA. His Honour held that, because '(t)he implied limitation is a recognition that the Constitution is concerned with the federal structure of government in Australia', the important thing to focus on was the limiting effect of the Commonwealth law, as opposed to the fact that the State had agreed to that limitation.

Impact on compliance with your industrial instrument

If the employment relationship in your organisation is governed by an enterprise agreement or workplace determination which has been certified by the FWC in accordance with the FW Act, it may be prudent to conduct a review of the instrument to determine whether any of its clauses fall within the Re AEU categories outlined above.

If a union is purporting to rely on suspect clauses, your organisation may decide to seek a declaration in the Federal Court that the clauses are invalid and unenforceable.

Some common examples of clauses which could infringe Re AEU include:

• Limits on offering fixed-term employment;
• Job security provisions;
• Maintenance of classification provisions;
• No contracting out provisions; and
• Minimum numbers of employees provisions.

Having provided those examples, we recommend that legal advice is sought to address these matters in light of the specific industrial context in which your organisation exists.

There will also be policy considerations to be taken into account. For instance, the nature of the relationship between each organisation and its corresponding union could necessitate the adoption of a particular approach. Moreover, we note that public sector organisations are required to comply with the Public Sector Workplace Relations Policies.

Impact on enterprise bargaining

If your organisation is currently engaged in bargaining for a new industrial instrument, you will need to consider the content, scope and operation of the clauses you are currently negotiating. If any of the clauses could potentially infringe Re AEU, the organisation should request that the union withdraw those claims, as they will fall outside the scope of the FWC's certification powers.

A bargaining representative cannot pursue claims in bargaining that are unlawful or not about permitted matters, and, in light of UFU v CFA, the position previously put forward by unions that the State’s agreement is enough to displace the operation of Re AEU is no longer valid. If a bargaining representative continues to press for the inclusion of matters which are inconsistent with Re AEU in an enterprise agreement, they may leave themselves open to being found in breach of the good faith bargaining requirements of the FW Act.

If you are currently bargaining for a new enterprise agreement, we recommend that you raise your concerns directly with the bargaining representatives during bargaining, and subsequently in writing. If the union with which you are currently negotiating will not withdraw the claims that are believed to be inconsistent with Re AEU, your organisation should consider making an application under s 229 of the FW Act for good faith bargaining orders.

Watch this space

The UFU has appealed Justice Murphy’s decision to the Full Court of the Federal Court. Given the significance of this issue for public sector industrial relations, we suspect that the matter will eventually be considered by the High Court.

If you are in the Victorian Government and would like more information on the effect of UFU v CFA on your specific industrial instrument, please contact:

Matt Garozzo
Solicitor
9032 3006
matt.garozzo@vgso.vic.gov.au

Matthew Minucci
Solicitor
0417 695 188
matthew.minucci@vgso.vic.gov.au

The VGSO’s guide to sexting

An employer in a Federal Court proceeding was recently forced to defend an attempt by a dismissed employee to have a number of private text messages - allegedly left on a work-issued mobile phone after it was issued to another employee - admitted into evidence.

Shea v TruEnergy Services Pty Ltd concerned an employee who had been dismissed by her employer, TruEnergy, on the grounds that her position had become redundant. The employee brought proceedings alleging that she had actually been dismissed for exercising a workplace right by making a number of complaints, and that her dismissal therefore constituted adverse action within the meaning of the Fair Work Act 2009 (Cth).

One of the employee's allegations during the course of the trial was that a culture of lewdness and sexual harassment prevailed in the workplace and that it was condoned by the managing director. She sought to have admitted into evidence a number of mobile phone text messages, apparently between the managing director and a former general counsel at TruEnergy with whom he was allegedly having an affair. Their content was, it was alleged, of a sexually explicit nature, and the employee submitted that this established the managing director's propensity to use lewd and sexualised language in the workplace.

The employee obtained the text messages via another former employee of TruEnergy who allegedly had been given a work-issued mobile phone that had not been cleared of its messages. That former employee still had possession of the phone and had failed to return it following the cessation of her employment.

TruEnergy sought to resist the admission of the text messages as evidence on the grounds that they were not relevant to any issue in the dispute, and in any event should be excluded as they were improperly or illegally obtained.

Justice Dodds-Streeton of the Federal Court agreed with TruEnergy and refused the admission of the evidence, finding that not only were the text messages 'intensely personal' communications, they were not relevant to any issue in the litigation. Her Honour also rejected the submission that, even if their contents could be described as 'lewd', it did not follow that the managing director would use such language in the workplace. Further, the messages were inadmissible due to the irregular or improper manner in which the employee had obtained this confidential material.

Although the contents of the mobile phone in this instance was held not to be admissible, this case serves as an important reminder to departments and agencies to ensure that employer-issued IT hardware, such as mobile phones and laptops, is properly wiped prior to being issued to a new employee, and that all equipment issued to an employee is recovered and retained when that employee leaves.

The case is also a reminder that, when it comes to evidence, relevance is still king. Even though litigators today have access to so much more information on phones, computers and social media, it's only going to be admitted into evidence if it is relevant to issues that the court or tribunal have to decide. In this sense, this case is just an example of old principles being applied to new (and fantastically salacious) facts.

If you are in the Victorian Government and you are thinking about sexting from a work phone, how about you first seek advice from:

Katie Miller
Managing Principal Solicitor
t 8684 0460
katie.miller@vgso.vic.gov.au

Retta Berryman
Trainee Solicitor
t 8684 0468
retta.berryman@vgso.vic.gov.au