City of Joondalup

[2013] FWCA 7977

[2013] FWCA 7977

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

City of Joondalup
(AG2013/9517)

CITY OF JOONDALUP INSIDE WORKFORCE WORKPLACE AGREEMENT 2013

Local government administration
COMMISSIONER WILLIAMS	PERTH, 11 OCTOBER 2013

Application for approval of the City of Joondalup Inside Workforce Workplace Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the City of Joondalup Inside Workforce Workplace Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by the City of Joondalup (the applicant). The Agreement is a single-enterprise agreement.

[2] In this matter the Australian Municipal, Administrative, Clerical and Services Union (the ASU) have lodged a Form F18−Declaration of Employee Organisation in relation to an Application for Approval of Enterprise Agreement which states that it does not support approval of the Agreement by the Commission.

[3] The grounds for the objection raised by the ASU are that clause 37−Use of GPS Technology of the Agreement is not enforceable and could be in breach of section 7 of the Surveillance Devices Act 1998 (WA) (the Surveillance Act).

[4] The clause the ASU objects to is set out below.

“37 USE OF GPS TECHNOLOGY

37.1 Employees covered by the terms and conditions of this Agreement acknowledge and consent to the possibility of the presence of a GPS unit in any plant, equipment or vehicle supplied by the City for the purposes of performing their daily duties.

37.2 It is understood the GPS functionality will be used:

a) As a duress alarm in case of emergencies;

b) Logging of equipment operation parameters;

c) Collection of data for equipment performance analysis;

d) Provide statistical location data; and

e) Provide real time location of plant, equipment or vehicles to ensure operational safety and efficiency.

37.3 The City will advise any employees of the use of any information obtained from the GPS technology which is considered above and beyond that which is detailed in the previous sub clause. That information will be provided prior to the undertaking of ant action relation to the information gathered.

37.4 This clause cannot override any legalisation contained in the Western Australia Surveillance Devices Act 1998.”

[5] The relevant section of the Surveillance Act is set out below.

“SURVEILLANCE DEVICES ACT 1998 - SECT 7

7 .         Regulation of use, installation and maintenance of tracking devices

(1)         Subject to subsections (2) and (3), a person shall not attach, install, use, or maintain, or cause to be attached, installed, used, or maintained, a tracking device to determine the geographical location of a person or object without the express or implied consent of that person or, in the case of a device used or intended to be used to determine the location of an object, without the express or implied consent of the person in possession or having control of that object.

Penalty:

            (a)         for an individual: $5 000 or imprisonment for 1 2 months, or both;

            (b)         for a body corporate: $50 000.

(2)         Subsection (1) does not apply to —

(a)         the attachment, installation or maintenance by a law enforcement officer of a tracking device on a vehicle that is situated in a public place nor the use of a tracking device that has been so attached or installed where the attachment, installation, maintenance, or use is carried out by a person in the course of that person’s duty as a law enforcement officer;

(b)         the attachment, installation, use, or maintenance of a tracking device in accordance with a warrant issued under Part 4;

(c)         the attachment, installation, use, or maintenance of a tracking device in accordance with an emergency authorisation granted under Part 4;

(d)         the attachment, installation, use or maintenance of a tracking device in prescribed circumstances; or

(e)         the attachment, installation, use, or maintenance of a tracking device in accordance with a law of the Commonwealth.

(3)         Subsection (1) does not apply to the use of a tracking device by a person in the course of that person’s duty as a law enforcement officer where the device has not been attached or installed or caused to be attached or installed by that person or by a person acting on behalf of that person.”

[6] The ASU submit that 50 employees of the applicant have expressly in writing advised the applicant that they do not grant their consent which would be required under s.7(1) of the Surveillance Act for the applicant to lawfully install, maintain or use tracking devices in the applicant’s vehicle that those employees may use.

[7] Further the ASU submit that it cannot be said that the 72 employees who voted against the Agreement being approved have given their consent, either express or implied, to the possibility of the presence of a GPS unit being in any plant, equipment or vehicle supplied by the applicant for the purposes of performing their duties as the applicant might argue was the case under clause 37.1 of the Agreement.

[8] Consequently the ASU submit that for the applicant to now install, maintain or use tracking devices in vehicles that these employees may use would mean that the applicant would be breaching the Surveillance Act.

[9] Other than for this objection the ASU agree that the Agreement meets the requirements the Commission must consider in s.186 and s.187 of the Act.

[10] The ASU argue that the Commission should apply s.192 of the Act and argue that this is applicable notwithstanding the Surveillance Act is State not Commonwealth legislation. The ASU argue s.192 still applies by virtue of s.118 of the Constitution which is set out below.

“Recognition of laws etc. of States

Full faith and credit shall be given, throughout the Commonwealth to the laws, the public Acts and records, and the judicial proceedings of every State.”

[11] The applicant argues the Commission should reject the ASU’s objection and submit s.192 of the Act is not applicable and that the Commission should approve the Agreement because the requirements of s.186 and s.187 of the Act have been satisfied.

Consideration

[12] A Full Bench of the Commission in Newlands Coal Pty Ltd v CFMEU [[2010] FWAFB 7401] succinctly summarised the Commission’s role in determining whether or not an enterprise agreement should be approved as follows:

“[33] FWA does not have a general discretion under the Act to determine whether an enterprise agreement should be approved. Rather, s.186 imposes an obligation on the tribunal to approve an agreement if a valid application for approval of the agreement is made under s.185 and the requirements of ss.186 and 187 are met.

[34] Broadly, the directions of s.187 involve examining the steps followed in the making of the agreement and the lodging of the application. Section 186 broadly involves the content of the agreement. Essentially, the role is one of examining whether the procedures followed leading up to the agreement being made were in accordance with what the Act requires and whether the content of the agreement satisfies certain conditions that the Act imposes.

[35] There is also a requirement for FWA to consider whether the agreement contains unlawful matters. What is an unlawful matter is defined by s.194. Additionally, and despite the requirements of s.186, Fair Work Australia may refuse to approve an agreement if a term of the agreement would mean compliance with that term would involve a breach of a Commonwealth law (s.192). There is no general role for the Tribunal to examine the validity of provisions in the agreement.

[36] The tribunal has no general nor specific power to rectify matters in the agreement if the terms of the agreement do not meet the requirements of the Act. The tribunal can accept undertakings but those undertakings can only be accepted if they are regarding concerns over the meeting of the requirements of s.186 and s.187.

[37] In summary, the role of FWA is to decide on whether the prescribed rules for conduct and procedures have been followed in the making of the agreement and if an agreement is made did the parties agree to things which an agreement can be about and are the terms agreed sufficient to satisfy the tests set out in the Act.” (Endnotes omitted)

[13] So it is in this case that whilst there may be some merit to the concerns raised by the ASU about the interaction between s.7 of the Surveillance Act and clause 37−Use of GPS Technology in the Agreement there is no role for the Commission to generally review the provisions of the Agreement.

[14] Section 192 of the Act however does provide a specific power to refuse approval of an agreement and is set out below:

“192 When the FWC may refuse to approve an enterprise agreement

(1) If an application for the approval of an enterprise agreement is made under section 185, the FWC may refuse to approve the agreement if the FWC considers that compliance with the terms of the agreement may result in:

(a) a person committing an offence against a law of the Commonwealth; or

(b) a person being liable to pay a pecuniary penalty in relation to a contravention of a law of the Commonwealth.

(2) Subsection (1) has effect despite sections 186 and 189 (which deal with the approval of enterprise agreements).

(3) If the FWC refuses to approve an enterprise agreement under this section, the FWC may refer the agreement to any person or body the FWC considers appropriate.”

[15] The ASU acknowledge that the Surveillance Act is not a law of the Commonwealth but rather a law of Western Australia. In terms of the argument that s.118 of the Constitution brings the Surveillance Act within the scope of s.192 of the Act a Full Bench of the Commission in Armacell Australia Pty Ltd; Wilmaridge Pty Ltd as Trustee for the O’Neill Family Trust t/a Direct Paper Supplies; Downer EDI Works Pty Ltd [[2010] FWAFB 9985] considered the application of s.192 as follows:

“[33] The next question is whether the terms in the agreements which purport to permit cashing out of long service leave render the agreements incapable of certification. Leaving aside employees who may have an entitlement under the metal industry award, inconsistency with State legislation is not a matter referred to in ss.186 or 187. Those provisions require Fair Work Australia to approve an agreement if the specified conditions are met. In our view these sections must be given effect to regardless of the presence in the agreement of a term which is inconsistent with State legislation. Section 192(1), which in other circumstances might confer a discretion to refuse approval, does not apply. It provides that approval may be refused if Fair Work Australia considers that compliance with the terms of the agreement may result in a person contravening a law of the Commonwealth. A State law is not a law of the Commonwealth. There are provisions of the Fair Work Act indicating a clear distinction between the Commonwealth, a State and a Territory. 4 Accordingly there is no discretion to refuse approval under that section. We conclude that while agreements may contain long service leave terms which are inconsistent with State legislation that is not a basis upon which approval can be refused.” (Underlining added)

[16] Based on this authority the Surveillance Act is a State law and is not a law of the Commonwealth. Consequently s.192 of the Act has no application in this case.

[17] If the ASU is correct that clause 37−Use of GPS Technology in the Agreement is inconsistent with the Surveillance Act (and I make no finding as to whether this is correct or not) that is not a matter which this Commission is to consider when determining whether or not this Agreement should be approved.

[18] Consequently I will now dismiss the ASU’s objection to the approval of this Agreement.

[19] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[20] The Australian Municipal, Administrative, Clerical and Services Union, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers the organisation.

[21] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 18 October 2013. The nominal expiry date of the Agreement is 30 June 2016.

COMMISSIONER

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