Non-technology staff summarily thrown into tech-facing roles with little or no previous technical experience because of a talent shortage need to be able to skill up or transfer to another part of the organisation in which they can apply their existing skills, rather than being performance-managed-out by default.
That’s the nub of a serious row over an alleged attempt to strip away key workplace conditions at the Australian Taxation Office (ATO) that’s sent the legal paperwork flying after the Taxation Officers Branch of the Australian Services Union (ASU) filed for an umpire’s intervention and accused the agency of lying to sneak through ways to make it cheaper and easier to sack public servants.
The ASU on Monday filed documents with the Fair Work Commission requesting bargaining orders — a legal direction — from the industrial umpire enforcing good faith bargaining requirements, directly accusing the agency of trying to strip out by stealth key protections for staff.
The protections are contained in the ATO enterprise bargaining agreement and refer to the number of steps taken, time taken and potential opportunity to move to another role provided to ATO staff before they are put on notice to improve prior to potential termination of employment.
The protections, known as clauses 90 and 91, are a line in the sand for the ASU because of the frequent large-scale deployment of new and disruptive technologies, ranging from risk modelling and pattern recognition to advanced analytics, data science and artificial intelligence.
Software is rapidly iterative. Permanent public servants, not so much.
The core of protection is that existing public servants can’t just be cut loose using performance management simply because the agency throws them in at the technology deep end.
A well-known toxic change-management tactic in parts of the private sector, the approach works by alienating sections of targeted staff who then often voluntarily resign, sparing the employer the cost of redundancy of unfair dismissal proceedings.
“The ATO deliberately misled the ASU and other employee bargaining representatives by making several false statements. These denied the ASU’s view that the ATO’s proposals, enunciated first on 12 September 2023, to change clauses 90 and 91 of the ATO Enterprise Agreement 2017 remove three separate and important protections for employees from the current clause 91,” the ASU said in its application to the FWC.
“The processes which would be removed ensure the steps taken by the ATO to close an employee’s performance gaps are fair and reasonable.”
The application is signed off by Jeff Lapidos, the Australian Services Union Taxation Officers’ branch secretary.
Specifically, the clause the ASU says is being scrapped is that: “Employees should be given help to improve their work performance to a satisfactory level through fair procedures that protect the interests of the ATO, its employees and its clients.” The timeline is open and unspecified and relies on an objective assessment by multiple parties.
The ASU documents say the ATO representatives claimed that the removed clauses either still existed or had been moved before questioning the versioning and consistency of the content of the documents provided to the union.
But the ASU has specifically called out a claim from the agency that, “The ATO’s intention was simply to clarify the existing processes, not to remove them,” in its accusation of Tax trickery.
“The ATO is a large and sophisticated government organisation with access to the best legal and industrial advice about enterprise bargaining. The positions its representatives advanced at bargaining on 12 September and by letter on 15 September in support of its proposed changes to clauses 90 and 91 are deliberately false and misleading,” the documents state.
The accusation of intentional deception by the Tax Office is a pivotal one because it means the agency must either put its hands up to a prohibited tactic or, ironically, explain how it came to the ostensibly inaccurate position. How the paperwork was handled is a key question.
“The ATO’s decision to not provide the employees’ bargaining representatives with a copy of its draft proposal in advance of the bargaining meeting on 12 September is relevant to the conclusion the ASU urges on the Fair Work Commission,” the ASU application says.
“The employee representatives were at a significant disadvantage by not having a copy of the proposed re-draft with them as the ATO provided its explanation of the changes. The disadvantage was so great in the circumstances that it would be open to any reasonable person to conclude that the ATO decision not to provide its re-draft in advance was part of a deliberate plan to mislead the employees bargaining representatives.”
And then it really goes south.
“The ASU submitted “that a deliberate misleading of employee bargaining representatives by a large employer organisation such as the Australian Taxation Office involves a failure to refrain from capricious or unfair conduct that undermines freedom of association or collective bargaining,” the ASU application said.
“Deliberate lies or the deliberate use of false or misleading statements calculated to deceive has the capacity to undermine collective bargaining and is an obvious reason the Parliament requires bargaining representatives to refrain from such conduct. The ASU submits this is what occurred.”
In communications to ASU members, Tax Branch secretary Jeff Lapidos said the union had successfully repelled erosion of protections in the past and could again, but that this time around.
“The ATO claims it is not removing our workplace rights, Lapidos told members. “It says it is merely clarifying existing processes,” Lapidos said.
“Unfortunately, this is so far from the truth that the ASU must call into question the ATO’s honesty and integrity. These are values that go to the heart of Australia’s public service. It is shocking for me and our Union to confront this.”
The ATO does not see things the ASU’s way.
“The ATO values its workforce and any suggestion that we are approaching bargaining in a way that makes it easier to terminate staff is categorically rejected,” an ATO spokesperson told The Mandarin.
“The ATO maintains it presented “a working draft for discussion of potential changes to clauses 90-92” but that the “presented clauses were a working draft only and by no means represented the ATO’s final position or even a firm proposal in relation to these clauses.”
“The ATO’s intention was simply to clarify the existing processes, not to remove them.”
“The ATO has been consistently bargaining in good faith in line with its obligations under the Fair Work Act 2009 and will continue to do so. The ATO has received in excess of 400 claims from unions and bargaining representatives and is progressing negotiations in response to all of these claims.
“Once negotiations have concluded the ATO will provide detailed information on the proposed changes to the enterprise agreement and this will then be put to eligible ATO staff to vote on,” the ATO said.
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