Case: CPSU v Telstra Corporation Ltd [2001] FCA 267 ; (2001) 107 FCR 93 
Outcome: applied
Absent any other statutory provision touching on this issue, it would be necessary to determine whether s 8(c) of the Acts Interpretation Act 1901 (Cth) operates to preserve any rights or obligations acquired, accrued or incurred under s 178 of the old Act. However, reg 2.19 of Ch 7 of the Workplace Regulations is a statutory provision that touches on this issue. Regulation 2.19 provides as follows: '(1) Unless the contrary intention appears in a provision of: (a) the Act [ie the new Act but not including Schedule 1 or regulations made there under: reg 1.3] ; or (b) the Work Choices Act; or (c) regulations made under the Act or the Work Choices Act; the amendments made by the Work Choices Act do not affect the enforcement in a court of rights and obligations that arose under the pre-reform Act. (2) Subregulation (1) applies whether or not proceedings had been commenced in a court before the reform commencement.' The Court's attention was not drawn to any provision of the new Act, the Work Choices Act or any other regulations made under those Acts that discloses a contrary intention to reg 2.19. 87 Support for the above approach is to be found in CPSU v Telstra Corporation Ltd [2001] FCA 267 ; (2001) 107 FCR 93. In that case the Full Court gave consideration to an email which the managing director of the employer's employee relations group had issued to managers and team leaders at a time when redundancies were imminent. After referring to the 'important values' inherent in individual employment contracts, the email stated: 'Managers will be held accountable to support the values of the Company's preferred model of individual employment.' The email stopped short of telling managers and team leaders to discriminate against employees employed under awards or certified agreements in the redundancy process. 88 The employer in CPSU v Telstra contended, that as the email had not been circulated to all managers involved in the redundancy process, it was akin to a proposal or a declaration of intention and did not itself change the selection criteria for redundancy. The Full Court at [14] rejected that contention. It found that it was open to the primary judge to conclude, as his Honour had done, that the selection process for redundancy could be influenced by senior management and that many managers would understand the email to be an instruction to give employees on individual contracts more favourable treatment in the redundancy process. The Full Court further held at [15] that (a) at the date of the email, redundancies were imminent and there could be little doubt that the email was to be taken into account in respect of them and (b) the email refined the criteria for redundancy by requiring preference to be given to employees who had signed Australian Workplace Agreements. The Full Court concluded at [16] that in the circumstances the email constituted an instruction that employees employed under awards or certified agreements were to be discriminated against in the redundancy process. 89 In the present case I am satisfied that the process for approving leave, and in particular flex leave, for Commonwealth employees for 15 November 2005 was influenced by the DEWR Advice. In particular, as discussed below, I am satisfied that the process for approving leave in the case of employees working in ACS, ATO, DVA and DEST was affected by the DEWR Advice. The DEWR Advice was reasonably open to be understood, and was understood by Ms Godwin, Ms Ellison and Ms Leggett amongst others, as an instruction not to grant employees leave to cover participation in the Day of Protest. 90 For the above reasons I am satisfied that the circulation to Agencies of the DEWR Advice altered the position of Commonwealth employees, and in particular Commonwealth employees who were members of the CPSU, to their prejudice because it gave rise to a real risk that any requests made by them to take leave on 15 November 2005 for the purpose of attending the Day of Protest would not be considered according to the usual practices of their respective Agencies but by reference to a more restrictive criterion. As the admissions and evidence referred to below concerning the individual applicants reveal, that risk eventuated in the case of each of the individual applicants. However, so far as Ms Clements is concerned, I am satisfied that her application to take leave was subsequently reconsidered by reference to the appropriate criterion (see [105] below). 91 The Commonwealth accepted that the email sent by Ms Ellison on 14 November 2005 to all ATO employees (see [81] above) and the email sent on the same day by the Personnel Branch of DEST to all DEST employees (see [84] above) altered the position of employees in those agencies or threatened to have that effect. It contended, however, that as the only memoranda produced by ACS and DVA were circulated to senior managers, and not to employees of the Agency generally, the memoranda did not themselves alter the position of any employee to his or her prejudice or constituted a threat to do so. I observe that this contention appears to overlook the staff notice issued by Mr Killesteyn on 11 November 2005 (see [83] above). 92 I turn to the memorandum issued by ACS. As mentioned above, at the relevant time Ms Godwin was National Manager, Staffing in the ACS. Ms Godwin gave evidence that on 14 November 2005, after the DEWR Advice was brought to her attention, she caused an email to be sent on her behalf to all National Directors, National Managers and Regional Directors regarding the Day of Protest. That email, which was sent at 11:37 am and marked as of high importance, stated: 'Any leave being applied for specifically to participate in the National Day of Action should not be approved. This position is the official position of the Department of Employment and Workplace Relations.' On 10 November 2005 Ms Godwin had given what she described as 'quick and dirty' advice to the same effect to a manager who was concerned about an application made by Mr McGill to take a day's flex leave on 15 November 2005.