THE DEPARTMENT of Employment and Workplace Relations (DEWR) was recently fined $30,000 for discriminating against union members in the public service.
Following a two-year legal battle, the Federal Court fined DEWR for issuing an advice directing public service managers not to grant personal leave to staff who wanted to attend an anti-WorkChoices protest rally in late-2005.
Federal Court Justice Catherine Branson ordered the DEWR to pay the fine to the Community and Public Sector Union (CPSU), which intends to put the money towards the ACTU’s anti-WorkChoices TV campaign.
The CPSU argued that the Federal Government had breached the freedom of association provisions under the Workplace Relations Act by refusing employees leave on the basis of their union membership.
The Court’s decision demonstrates there is a “mountain of work to be done” to de-politicise the senior levels of the Commonwealth public service, according to CPSU national secretary, Stephen Jones.
“Basically, the Court has found that senior people in DEWR instructed public service line managers to put the government’s political interests ahead of their legal obligations under the Workplace Relations Act,” he said.
Justice Branson said that despite evidence some senior departmental officers knew it was wrong to issue such advice, no steps were taken to review it.
The finding noted that it was not the action of a single officer, but that the decision to issue the unlawful advice came out of significant consultation with senior DEWR officers (including the secretary of DEWR, Peter Boxall).
She also noted that the officers involved would have been aware of the contravention of the Workplace Relations Act when issuing the advice to refuse the leave.
Other Commonwealth agencies were not fined because they were obliged to follow the advice of DEWR.
Jones said it was significant that the Court chose to impose a $30,000 penalty which is close to the maximum fine ($33,000) available.
“It confirms that public sector employees are entitled to freedom of political expression, in their own time,” he said.
“It also confirms employers have no right to tell their employees what they can or can’t do on their day off.”
It is the second time a government department has been fined for breaking its own workplace laws, after a Federal Court Judge fined the Defence Department $8,000 in 2005 for breaching an employment agreement.
Joe Hockey, Minister for Employment and Workplace Relations, refused to comment on the decision.