On October 30, a Federal Court judge fined the Department of Employment and Workplace Relations (DEWR) $30,000. The fine was for discriminating against union members when it advised Australian Public Service agencies to refuse leave to employees who planned to take part in the November 2005 Australian Council of Trade Unions national protest against Work Choices.
The Community and Public Sector Union (CPSU), which took the action against DEWR, argued that the federal government had breached the freedom of association provisions under the Workplace Relations Act (WRA) by refusing employees leave on the basis of their union membership.
Justice Catherine Branson accepted the CPSU's contention that the department had committed a "serious contravention" of the WRA, "because the department involved is that responsible for advising other departments and Commonwealth agencies with respect to their obligations under the [Workplace Relations] Act".
Branson found that despite DEWR's general corporate manager, Jeremy O'Sullivan, receiving advice from the Australian government soicitor about how to respond to leave requests for the union protest, "neither he, nor it seems, any other DEWR officer took steps to convey that advice to [DEWR] and agencies to which the DEWR Advice had been issued".
Branson ordered that DEWR pay the penalty to the CPSU, which initiated the case. The Department of Education Science and Training (DEST) and the Australia Customs Service were not issued fines as the court determined that when breaching their collective agreements by refusing leave to CPSU members, they did so on DEWR advice.
CPSU national secretary Stephen Jones said on October 30: "We are delighted with this decision. It confirms that public sector employees are entitled to freedom of political expression, in their own time.
"It also confirms employers have no right to tell their employees what they can or can't do on their day off."
The union intends to use the $30,000 penalty to defray legal costs accrued during the two-year court battle and to keep the ACTU's Your Rights at Work ads on air.
"While this case was always about the principle not the money, it is significant that the court chose to impose a $30,000 penalty, which is close to the maximum fine available. We think it is only fitting that some of this money is used to help rid Australia of these unfair workplace laws", said Jones.
DEST national office delegate, Paul Oboohov, told Green Left Weekly "Although this is a significant win for the right of workers to protest, the CPSU will need to do more to mobilise its membership if we are to defeat Work Choices.
"In recent years union density has declined in the Australian Public Service, while more workers have turned to Australian Workplace Agreements [individual contracts] for pay rises and conditions have been lost as collective agreements expire. With the ALP opposition offering only 'Work Choices lite' we can't afford to rely solely on a media and marginal seats campaign against Howard.
"Rather than relying solely on the courts and media to get its message across, the CPSU needs to revive a culture of collective action — both industrial and political campaigns run by mass meetings of members — if we are to take back what we have lost under Howard's anti-worker laws."
[Nick Everett is a former CPSU delegate in the national office of the Department of Employment and Workplace Relations.]