Barbara Deegan: New Integrity Consultant

Chris Jordan, the commission of the Australian Tax Office (ATO), first became aware that one of his deputies was connected with a massive tax fraud when he was got a personal visit from Australian Federal Police commissioner Andrew Colvin.

Three other senior ATO officers are being investigated by Barbara Deegan, a former Fair Work Commissioner, for possible Code of Conduct breaches.

Jordon says the alleged wrong doing of ATO officers has detracted from the success of the operation, code named Operation Elbrus, by the ATO, the federal police and the Australian Criminal Intelligence Commission. 

"I cannot overstate how much those allegations have struck at the heart and values of those who work at the ATO -- and how seriously we are taking these," he told the Senate committee.

TAX BOSS: Fraud allegations strikes at the 'heart and values of those who work at the ATO'

Former Fair Work Commissioner joins top tier A Fair Work Commissioner of 18 years has just accepted a consultant role in  a top tier 

A Fair Work Commissioner of 18 years has just accepted a consultant role in a top firm. In an exclusive interview she tells us why she had to leave the Commission, and how she’d like to make a difference

Barbara Deegan is a consultant in our employment practice

Barbara is a highly credentialed public sector employment and workplace relations adviser. She served as a Commissioner of the Fair Work Commission and its predecessors from 1996 to 2014 and as a Commissioner of the Tasmanian Industrial Commission from 2010 to 2014. Prior to this time Barbara held senior roles, including as Agency Head, in the Commonwealth public service.

Barbara has provided clients with strategic insights into a range of employment and workplace relations issues, including unfair dismissal, enterprise bargaining and industrial action under the Fair Work Act 2009. She is recognised for her work on employment terms and conditions, some of which involve significant economic outcomes. 

Barbara is also recognised for her skill in conducting complex and sensitive workplace investigations, including investigations into alleged breaches of the APS Code of Conduct and investigations under the Public Interest Disclosure Act 2013.

Former Fair Work Commissioner joins top tier A Fair Work Commissioner of 18 years has just accepted a consultant role in  a top tier 

A Fair Work Commissioner of 18 years has just accepted a consultant role in a top firm. In an exclusive interview she tells us why she had to leave the Commission, and how she’d like to make a difference

Former Fair Work Commissioner Barbara Deegan has joined Ashurst’s top-ranked Australian employment practice as a consultant after retiring as Canberra’s Fair Work Commissioner in August.

Deegan served as a Commissioner of the Australian Industrial Relations Commission, Fair Work Australia and the Fair Work Commission from 1996 (and as a Commissioner of the Tasmanian Industrial Commission from 2010) to 2014. 

In an exclusive interview with Australasian Lawyer, the dedicated lady says 18 years as a commissioner had taken its toll.

“I have been working full-time since I’ve left university, which was in the 70s, and I’ve never had a break except for leave. I was starting to get very jaded with work…I thought I’d done as much as I could do,” she says.

And with intense industrial disputation looming in the ACT area due to a planned round of bargaining, Deegan didn’t think she had the strength to continue.

She’d already been through something similar a few years prior in 2011, and although the outcome was a success with very little industrial action resulting, it was a hard slog.

“The new bargaining round is due to start in this half of the year, and with very strict guidelines,” Deegan says. “I thought, ‘do I really want to go through another six months of this?’”

Hansard ACT: Commissioner Deegan—retirement

MR GENTLEMAN (Brindabella—Minister for Planning, Minister for Community Services, Minister for Workplace Safety and Industrial Relations, Minister for Children and Young People and Minister for Ageing) (6.45): I rise today to speak about the career of Barbara Deegan, who is retiring as fair work commissioner and whose farewell I attended last Thursday, 7 August.

Commissioner Deegan began her career in 1979 after obtaining a bachelor of laws from the University of Tasmania in 1977. She has played an important role in the protection of the rights of workers over the years, contributing both here and internationally.

In 1992 Commissioner Deegan was an Australian government delegate for the Keating government to the International Labour Conference with the responsibility for the development of the C173 Protection of Workers Claims (Employer Insolvency) Convention 1992. Her international work has covered very interesting ground. Along with work for the International Labour Conference she was an Australian government delegate to the World Summit for Social Development in Geneva in 1995 and the United Nations Fourth World Conference on Women in Beijing in September 1995.

Closer to home, Commissioner Deegan has held many roles within the field of workers rights and industrial relations, including having a role as commissioner for the Australian Industrial Relations Commission from 1996 to 2009. In 2008 she was appointed by the commonwealth Minister for Employment, Education and Workplace Relations and the commonwealth Minister for Immigration and Citizenship to conduct a review of the temporary skilled migration—457—visa system, which was later known as the Deegan commission. Following this, Commissioner Deegan was appointed to the Australian Fair Work Commission in 2009, the position from which she recently retired, and to the Tasmanian Industrial Commission in 2010.

I have personally had many interactions with Commissioner Deegan on a professional level over many years. Appearing before Commissioner Deegan was often an intimidating task. You always had to know your stuff, as the chance that your evidence and argument would be picked apart was very high. She presented herself as a formidable audience, always taking into account all of the facts and ruling in a just manner. I remember the sweaty palms and furious re-reading of notes that occurred before hearings with the commissioner. 

In regard to Commissioner Deegan’s retirement, there are a couple of issues that I would like to raise that are relevant to the ACT. Commissioner Deegan was not only the longest serving commissioner prior to her retirement but also the only commissioner to be based in the ACT. It has come to light since the announcement of her retirement that not only will her position be lost, as a commissioner based in Canberra, but she will not be replaced with another permanent Canberra-based commissioner. This issue concerns me greatly. Without a commissioner permanently in Canberra, problems are likely to arise with the length of proceedings and ease of access for employees and employers within the ACT. I wish to urge Fair Work Australia to reconsider this decision.

The reduction in the number of commissioners in general sheds some light on the lack of commitment from the current federal government to protecting workers rights and settling workplace disputes. It shows little respect for the commission to be reducing the number of commissioners who sit on it, and can be seen as in line with other federal cuts we have seen outlined in federal budget decisions. I have written to Minister Abetz regarding my concerns and would urge others in this place to do the same. Reducing resources to settle workplace disputes is not something that benefits anyone.

Finally, I would like to thank all of the people who have worked with Commissioner Deegan during the last 18 years, mostly all of those who attended her farewell. They include Magistrate Cook; Justice Iain JK Ross AO; Professor Breen Creighton; Geoffrey McCarthy; members of the CPSU, ETU, United Voice, ANMF, TWU, AMWU, Professionals Australia and the ACT & Region Chamber of Commerce & Industry; and various academics and other individuals who have worked with Commissioner Deegan over past 18 years. Commissioner Deegan has truly given excellent service to Australia and the people of the ACT, for which I am very grateful.

Government hypocrisy on display again in the Fair Work Commission

A recent judgment has tipped the scales even further to the government's advantage against public servants

The federal government, it has been said in the litigation context, is a "behemoth". Public servants who take on the might of the bureaucracy in employment disputes have always faced an uphill battle. The government has practically unlimited resources and its pick of legal talent; employees often have neither. However, in the past this stark inequality was partially alleviated by a requirement in the Fair Work Act that parties must seek permission before they can be represented by lawyers.

Following Gibbens v Commonwealth of Australia, public servants no longer have even this minor protection. In July, the Fair Work Commission rejected an appeal against a decision which gave lawyers at the Australian Government Solicitor the right to appear for the government without permission.

The Australian Government Solicitor can appear without leave before the Fair Work Commission, while public servants require permission to have legal representation. 

The relevant legislation provides an automatic right of appearance for lawyers who are employees of a party. But, so appellant Gregory Gibbens argued, lawyers of the AGS hold a distinct role: the AGS is a government legal practice that works across departments, whereas the exception is aimed at in-house lawyers. The Full Bench disagreed: "AGS lawyers are … employees of the respondent (that is, the Commonwealth) engaged by the Secretary of the Attorney-General's department to work in that department." Accordingly, post-Gibbens, the AGS can appear without leave before the Fair Work Commission, while public servants require permission to have legal representation.

While the legislative interpretation in Gibbens may be correct on a strictly textual view, it is entirely contrary to the Fair Work Act's policy intention. The explanatory memorandum stated that the commission would "move away from formal, adversarial processes … There will also be a higher bar set for representation." Tellingly, it continued: "Permission for representation will only be granted to parties (including the minister) where it would enable the matter to be dealt with more efficiently or fairly" (emphasis added).

Moreover, the Gibbens precedent, which the government has since relied upon in other matters, contradicts the position departments have taken in other contexts. In a 2004 High Court case, the Department of Immigration argued that the AGS was not "the Commonwealth" for the purposes of recovering legal fees. Justice William Gummow agreed. While that judgment was made when the AGS was a Commonwealth authority, and it has since been subsumed within the Attorney General's department, this is seemingly a distinction without a difference.

The government's approach to this issue continues a trend of self-serving inconsistency – some might even say hypocrisy – when it comes to workplace relations. Two other examples are instructive.

Judges have long adopted the view that the federal government and its myriad departments form one legal entity. The High Court held in 1920 that "the Crown", or the executive branch, "is one and indivisible". The bench continued: "Elementary as that statement appears, it is essential to recall it, because its truth and its force have been overlooked."

In all but name, the government often engages in pattern bargaining during the enterprise bargaining process – seeking common terms for distinct enterprise agreements across multiple agencies – which is illegal under the Fair Work Act. This is permissible, they say, because the departments are not distinct employers but all part of the Commonwealth of Australia.

But when a dismissed public servant pursues reinstatement in the Fair Work Commission, agencies invariably resist on the grounds that doing so would be disruptive to the workplace. If the Commonwealth is just one legal entity, why can't the unfairly dismissed public servant be reinstated to another department? This issue has arisen in the Fair Work Commission on occasion, and there are no prizes for guessing the position adopted by the Commonwealth when the shoe is on the other foot.

Former Canberra-based Fair Work Commissioner Barbara Deegan was frank about this contradiction in an interview with Workplace Review following her retirement. "The bargaining framework does sit uncomfortably with the prohibition on pattern bargaining. Of course in a formal sense there is no inconsistency. The bargaining framework only applies to a single employer – the Commonwealth of Australia. But then in other contexts, when it is suggested that the Commonwealth is a single employer, the response is that under the Public Service Act each agency head is a separate employer or exercises all the powers of an employer. So there is a very good argument that the Commonwealth can't have it both ways".

Another area of inconsistency involves the APS' reach into the private lives of public servant. I have written repeatedly about the government's overreach in this field, and controversy was sparked again last month when the Australian Public Service Commission sought to regulate public servants' "liking" of Facebook posts.

This expansive interpretation of the Code of Conduct's scope was highlighted by one passage. The APSC instructed: "Your capacity to affect the reputation of your agency and the APS does not stop when you leave the office. The comments you make after hours can make people question your ability to be impartial, respectful and professional when you are at work. APS employees are required by law to uphold the APS Values at all times." Political opinion is not the only area where the APS has sought to intrude into the private lives of employees.

The government's approach to this issue continues a trend of self-serving inconsistency – some might even say hypocrisy – when it comes to workplace relations.

Yet when an employee injures themselves outside of the office (but still in a workplace context), the APS has sought to resile from its workers' compensation obligations. Comcare famously fought all the way to the High Court (and won) in a case involving a public servant injured having sex while away from home on work travel. The comparison between Comcare v PVYW and free speech cases may be crude, but the point nevertheless remains: the government argues for an expansive definition of what falls within the scope of employment when it suits them, and a restrictive definition when it does not.

Although so much might be expected from a private litigant, Australians are entitled to hold the Commonwealth to a higher standard. Indeed the Model Litigant Guidelines require the government to act "consistently in the handling of claims and litigation". While it is not obliged to "fight with one hand behind its back in proceedings", it should certainly not – to use Deegan's language – be able to have it both ways.

John Wilson is the managing legal director at Bradley Allen Love Lawyers and an accredited specialist in industrial relations and employment law. He thanks Kieran Pender and James Macken for their help in preparing this article.

John.Wilson@ballawyers.com.au