Tax Office Rebuked for Ignoring Worker’s Union Representation

The Fair Work Commission has ruled that the Australian Taxation Office (ATO) failed to respect the representative role of the Australian Services Union (ASU) when handling a request from a legally blind employee for greater work-from-home flexibility. The case underscores the importance of honouring employees’ rights to union representation in workplace disputes.

Tax Office Rebuked for Ignoring Worker’s Union

The worker in question, whose vision impairment makes public transport extremely difficult, had an existing flexible work arrangement requiring just two office days each month. As this arrangement neared expiry, he sought an updated agreement reducing his office attendance to once per month. His union, the ASU, formally advised the ATO that it would be representing him in discussions and confirmed his wish for a 100% remote arrangement.

Instead of engaging directly with the union, the ATO’s director of staff experience bypassed the ASU and contacted the worker to hold a Teams meeting. While the director acknowledged the union’s role and asked if the worker wished to include his representative, the meeting proceeded without union participation. During the discussion, the worker accepted a compromise involving staggered office hours rather than a full exemption from attendance.

The ASU challenged this process, alleging a breach of freedom of association provisions and of the ATO’s 2024 enterprise agreement. Specifically, clause 12.4 obliges the ATO to “respect and facilitate” the role of employee representatives. Commissioner Stephen Crawford agreed that the ATO had undermined the union’s role by putting the onus on the worker to request representation in the moment, creating a situation where union involvement became contingent on a possibly intimidating exchange with senior management.

While Commissioner Crawford stopped short of finding dishonesty or bad faith under clause 12.2, he concluded the ATO had failed to properly facilitate the union’s role. No formal orders were made, but the findings serve as a warning.

The decision highlights several key lessons for employers:

• Once notified that a union is acting for an employee, management must deal with that representative, not bypass them.

• Even if an employee indicates a willingness to proceed without their representative, employers should ensure the union has been notified and given a fair opportunity to participate.

• Respecting union roles is not only a legal obligation under agreements and the Fair Work Act but also critical for maintaining trust and procedural fairness.

ASU secretary Jeff Lapidos emphasised that the matter could have been resolved simply if the ATO had acknowledged the error and assured it would not happen again. “I trust the ATO will learn its lesson,” he said, stressing that union representation must be respected in future dealings.

The case, Australian Municipal, Administrative, Clerical and Services Union v Commonwealth of Australia as represented by the Commissioner of Taxation [2025] FWC 2668, serves as a reminder that procedural missteps, even when unintended, can erode confidence in fair workplace relations. Employers across the public sector and beyond would be wise to take note.