Focus on wages misguided when industrial democracy is under attack

For every worker who’s sentenced,
Ten thousand won’t forget,
Where they gaol a workers for striking,
It’s the rich buggers country yet
—Helen Palmer, ‘the Ballad of 1891’ .

There are several clauses in the General Employees Agency Agreement (GEAA 2009) in the Australian Taxation Office that have opened up avenues for management to harass and intimidate union members. These types of clauses can be found in enterprise bargaining agreements (EBAs) across the public service.

Such EBAs constitute direct attacks on industrial democracy in the public service.

There are a number of attacks being made, but let’s focus on two (2) in particular.

Performance Improvement
Firstly clauses in the current EBA are poorly worded and give management power to harass and intimidate union members.

The offending clauses are:

107.4. Where action under 107.1 and 107.2 does not lead to an acceptable improvement in performance, unsatisfactory performance procedures should take place.

108.3. If, at any time, an ongoing employee’s work performance becomes unsatisfactory, a written
final warning will be issued to the employee by the Director. This would usually follow action consistent with clause 107.2.

These clauses are so poorly drafted that it is not clear where the informal assessment of competence (Clause 107) process ends and the the formal test of efficiency (Clause 108) process begins.

It is also unclear which clause in the EBA invokes the final warning (is it 107.2, 107.4 or 108.3?).

This can make for bad outcomes in for members in the workplace.

It also confuses other remedies that may be more suited in individual cases.

For example, a manager may embark on a PIP and then decides half way through the ‘performance improvement process’ that it is all too hard and bullies the member into resigning under Clause 101 of the GEAA 2009. Such pay-outs are fully taxed and do not have tax concessions available under the ‘true’ redundancies [Former tax officer loses claim against ATO in payout ruling].

So tortuous is the nature of the the Performance Improvement Process (PIP) that managers can use it as a punishment rather than as a genuine attempt to improve performance.
For example, managers can invoke the Public Service Regulation 3.2(2) to assess occupational fitness and use this ordeal as coercion get the public servant to resign.

Human Resources (HR) managers can make orders under the pretext
that they have a ‘duty of care’ to make sure members are medically fit to undergo the formal test of efficiency (cl 108).

Under these clauses advice from the union call centres and
organisers about the rights of the members can be confused and unintelligible.
For example, once a member signs a Performance Improvement Plan you may not have the right to question the process or the processes reviewed.

Right to Strike lost under Fair Work Act
The other area of concern is the CPSU correctly states in its flyer
(attached) that
‘protected industrial action is not available to members’ under the Fair Work Act (also attached).

So, not only is industrial democracy is lost, but also the right to
organise is curbed.

So members are not only unable to have management actions reviewed, they are denied the right to take industrial action to prevent these clauses from being adopted.

These are just some of the failings of specific EBAs being
inflicted on union members.

I strongly recommend that union members and officials do not sign onto any EBA containing such punitive clauses i.e Performance Improvement Procedures and No strikeprovisions.

I hope unions in the ATO can co-operate
sufficiently to fight for industrial democracy as well as wage

Comments are welcome – please place them in the
comments section (below).

Ian Curr
Former Commonwealth Public Servant
and CPSU Member
6 Oct 2011

No industrial action before nominal expiry date of enterprise agreement.pdf

2 thoughts on “Focus on wages misguided when industrial democracy is under attack

  1. Tax Office EBA results - deadlock says:

    Dear CPSU member

    CPSU National Secretary Nadine Flood and Deputy National Secretary Rupert Evans will meet this afternoon with Bill Shorten and senior ATO representatives to discuss difficulties in ATO bargaining and, from our perspective, how to resolve these to members’ satisfaction. We will report back the results of this meeting.

    Poll results
    Thanks to all who participated in our latest straw poll either in meetings or via email. The fourth ATO offer was rejected by 84% of those who participated, with:

    57% rejecting the offer and wanting to continue to pursue the CPSU claim of 4% + 4% + 5%

    27% rejecting the offer and prepared to accept an equivalent outcome to the CPSU claim but with some of the increase formed by lump sums, condition improvements, increased super and the like
    16% saying they would accept the latest ATO offer

    This overwhelming result is in line with the view members have held consistently since the first offer was made by the ATO. Your CPSU bargaining team will present these results to the ATO at the next bargaining meeting.

    As we receive thousands of emails, including hundreds with comments or questions, we do not always respond individually, but we will get back to as many of you as we can as quickly as we can. We read and consider all your comments and they are invaluable to your CPSU bargaining representatives. You can write to us at

    Next bargaining meeting

    Tomorrow (12 October) in Canberra. Update will be issued following the meeting.

    Due to the importance and urgency of this update we will use different distribution methods, so I apologise if you get this email twice. You may wish to share it with interested colleagues.

    In Unity
    Gilbert Potts| Lead Organiser | Tax, Revenue & Justice | CPSU | ph 03 8620 6312| 0419 823 627| website | member service centre 1300 137 636

  2. Hi
    Ian thank you for your interpretation for how a badily worded agreement, could give an opportunity for misuse.

    All staff should have a performance management plan. It gives them guidance to get from where they are to where the team is heading in the business plan.

    Human Resources professionals can assist organisations in maintaining engaged staff. However, things go past being professional, where there is an impingement on an employee’s rights.

    the Australian Human Right’s commission has a document, which can assist in managing performance reviews

    From an organisational perspective, it is important that the employees have a safe system of work, with clear policies and procedures.

Please comment down below