FEDERAL CIRCUIT COURT OF AUSTRALIA
| AUSTIN v HONEYWELL LTD | [2013] FCCA 662 |
| Catchwords: INDUSTRIAL LAW – Adverse action – whether the Privacy Act 1988 is a workplace law – reason for termination of employment. |
| Legislation: Civil Aviation Act 1988 Fair Work Act 2009 ss.12, 340, 341, 342, 343, 345, 351, 357, 360, 361 Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 Privacy Act 1988 ss.6, 6C, 7B, 12B, 18N, Schedule 3. Civil Aviation Regulations 1988 regs.51, 215(9). International Covenant on Civil and Political Rights Article 17 |
| Applicant: | FIONA AUSTIN |
| Respondent: | HONEYWELL LTD |
| File number: | MLG 1365 of 2012 |
| Judgment of: | Judge Riley |
| Hearing dates: | 28, 29 & 31 May 2013, 14 & 21 June 2013 |
| Date of last submission: | 21 June 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 28 June 2013 |
REPRESENTATION
| Counsel for the Applicant: | The applicant appeared in person |
| Solicitors for the Applicant: | The applicant was not represented |
| Counsel for the Respondent: | Robyn Sweet |
| Solicitors for the Respondent: | Reid Commercial Law |
ORDERS
The application filed on 29 October 2012 and the application in a case filed on 13 May 2013 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1365 of 2012
| FIONA AUSTIN |
Applicant
And
| HONEYWELL LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application under the Fair Work Act 2009 (“the Act”). The applicant was not legally represented. Her application was not in the customary form. However, the respondent accepted that the applicant’s claims were made sufficiently clear in three documents, namely, her Form 4 Claim under the Act filed on 29 October 2012, her Statement of Claim (“SOC”) filed on 13 January 2013 and her application in a case filed on 9 May 2013.
In very brief summary, the applicant claimed that, during a pre-employment screening process, the respondent required her to provide, among other things, an electronic copy of her signature and a digital copy of her passport. The applicant declined to provide those things because she was concerned about identity theft and the bona fides of the agent who was engaged by the respondent to conduct the pre-employment screening.
The respondent withdrew the offer of employment it had made to…
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Details
- Case
- [2013] FCCA 662
- Decision Date
CaseChat Overview and Summary
In the Federal Court of Australia, Judge Riley considered a dispute between Fiona Austin (the applicant) and Honeywell Ltd (the respondent). The applicant alleged that she had been subjected to adverse action in contravention of the *Fair Work Act 2009* (Cth) because she had exercised a workplace right by refusing to provide consent for the storage of her passport details and by refusing to release Honeywell from liability for any damages arising from the collection and use of her personal information. The applicant contended that the *Privacy Act 1988* (Cth) constituted a workplace law for the purposes of the adverse action provisions.
The central legal issue before the Court was whether the applicant's refusal to consent to the collection and storage of her personal information, and her refusal to release Honeywell from liability, constituted the exercise of a workplace right under section 340(1) of the *Fair Work Act 2009* (Cth). This required the Court to determine whether the *Privacy Act 1988* (Cth) is a "workplace law" as defined by the *Fair Work Act 2009* (Cth).
Judge Riley found that the *Privacy Act 1988* (Cth) is not a workplace law for the purposes of the *Fair Work Act 2009* (Cth). The Court reasoned that the definition of "workplace law" in the *Fair Work Act 2009* (Cth) is specific and does not encompass all legislation that may have an impact on the workplace. The *Privacy Act 1988* (Cth) is a general law concerning privacy and does not specifically regulate the relationship between employers and employees in the manner contemplated by the definition of workplace law. Therefore, the applicant's actions, while related to her employment, did not constitute the exercise of a workplace right under the *Fair Work Act 2009* (Cth).
The Court ordered that the applicant's application be dismissed.
The central legal issue before the Court was whether the applicant's refusal to consent to the collection and storage of her personal information, and her refusal to release Honeywell from liability, constituted the exercise of a workplace right under section 340(1) of the *Fair Work Act 2009* (Cth). This required the Court to determine whether the *Privacy Act 1988* (Cth) is a "workplace law" as defined by the *Fair Work Act 2009* (Cth).
Judge Riley found that the *Privacy Act 1988* (Cth) is not a workplace law for the purposes of the *Fair Work Act 2009* (Cth). The Court reasoned that the definition of "workplace law" in the *Fair Work Act 2009* (Cth) is specific and does not encompass all legislation that may have an impact on the workplace. The *Privacy Act 1988* (Cth) is a general law concerning privacy and does not specifically regulate the relationship between employers and employees in the manner contemplated by the definition of workplace law. Therefore, the applicant's actions, while related to her employment, did not constitute the exercise of a workplace right under the *Fair Work Act 2009* (Cth).
The Court ordered that the applicant's application be dismissed.
Orders
Orders of the court
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Background
Background to the litigation
On 21 June 2012, the applicant replied to the email from HireRight dated 8 June 2012. The applicant said, using the headings HireRight had provided:Hello,Background Request – Employment HistoryAll necessary information is contained in my resume – as provided to Honeywell Australia during the application process and also attached for your convenience.Background Request – Other Required Information Australia Right to WorkMy Australian passport was used to verify my identity with Honeywell Australia.I do not provide consent for a copy of my passport to be stored on any server/computer anywhere in the world.As my identity has been established, there is no longer any need for a copy of my passport to be kept by Honeywell Australia or any of its affiliates – or HireRight.I have an Australian passport, therefore I have a right to work in Australia.Criminal Records CheckThis is currently being undertaken by the Australian Federal Police. Results will be sent to:Rory DouglasSenior Staffing SpecialistHoneywell Australia45 Grosvenor StreetAbbotsford, VIC, Australia, 3067Please email a copy of the photo from your Australia passport. Please email a copy of your Australia photo id (drivers license, passport, national ID, etc.)See attached file: OPC_v_Employment_Services_Company_2005_PrivCmrA_13.pdfNote: my identification has already been verified (see above).Background Request – Review Input SummaryDo we have permission to contact this current employer?There is no way of changing the answer to this question. It is misleading to include this as a question if there is no opportunity to say ‘No’.Background Request – Consent & Submit RequestPlease proof read the Certification Statement on your website (and review all instances of the word ‘Australia’ – most should be ‘Australian’).This section of your website contains a lot of threats and does not provide the user with the opportunity to reject requirements such as: “I hereby release these companies, organisations, agents, individuals, and Honeywell International Inc. from any liability for any damage whatsoever resulting from the investigation, use or disclosure of such information.”It is important you are very clear on my response to this – I do not release anyone from their legal obligations, nor do I waive any of my legal and/or human rights.I have attached the Certification Statement to which I provide consent – see: HireRight_Honeywell_Certification Statement_Fiona Austin.pdf By letter dated 21 June 2012, the respondent offered the applicant:permanent employment with Honeywell Limited … . The letter of offer included the following statement:This offer is subject to successful Pre-Employment Screening and references, as well as your successful completion and passing the pre-employment drug tests conducted by Honeywell or any company designated by Honeywell to conduct the same.Pre-Employment Screening involves Honeywell seeking information about criminal history, your identity, your prior employment, your education and qualifications, your right to work in Australia and other issues. It is very important that you have completed fully and accurately the Honeywell Online Application Form. Before you accept this offer, you should be satisfied that information about your background has already been disclosed.If after you commence employment Honeywell is not satisfied that you meet all of the Pre-Employment Screening criteria, then Honeywell may terminate your employment by giving you notice of one week or paying you in lieu of that notice. However, if you have materially failed to disclose information about your background or you have provided inaccurate or misleading information which if disclosed fully would have led to Honeywell not offering you employment, then Honeywell may dismiss you without notice or payment in lieu. Honeywell’s rights to terminate as set out in this paragraph override all other requirements regarding notice of termination as provided in the terms and conditions of your employment.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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