Hydro Electric Corporation

[2014] FWC 4169

[2014] FWC 4169

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Hydro Electric Corporation
(AG2014/10)

SENIOR DEPUTY PRESIDENT HARRISON SYDNEY, 24 JUNE 2014

Application for approval of the Hydro Tasmania Enterprise Agreement 2013 - 2017.

[1] This decision concerns an application made by the Hydro Electric-Corporation (the Employer) for approval of an enterprise agreement known as the Hydro Tasmania Enterprise Agreement 2013 – 2017 (the Agreement). This application is made under s.185 of the Fair Work Act 2009 (the Act).

[2] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU); the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU); the Association of Professional Engineers, Scientists and Managers, Australia (APESMA) and the Australian Municipal, Administrative, Clerical and Services Union (ASU) (collectively, “the Unions”) being bargaining representatives for the Agreement, have each filed an F18 “Declaration of Employee Organisation in relation to an Application for Approval of Enterprise Agreement”.

[3] The Unions raised various concerns regarding the Employer’s compliance with certain provisions of the Act that relate to pre-approval requirements, the coverage of the Agreement, and the conduct of the ballot by which employees were requested by the Employer to approve it. One of the numerous issues raised is whether the Employer had complied with ss.180(2), (3) and (4) of the Act (the “access period issue”). Those provisions relate to the seven day access period for a proposed enterprise agreement which ends immediately prior to the start of the voting process.

[4] The application for approval of the Agreement was listed before me for hearing and conferences and it appeared a large number of issues may need to be addressed in evidence and submissions. After discussion with the parties it was agreed that I should first determine the access period issue.

The facts

[5] On 11 December 2013, at 10.34am, the Employer sent an email to “eligible employees” to advise that the formal access period commenced at 10.30am on that day, and would continue for seven days. The email advised recipients that voting for the Agreement would open on 18 December 2013 at 11am and close on 23 December 2013 at 11am. Details were provided regarding the electronic ballot to be conducted. 1 The question to be determined is whether the Employer has complied with the requirements of s.180(3).

The relevant legislative provisions

[6] Section 181(1) of the Act states that an employer may request the employees employed at the time, who will be covered by a proposed enterprise agreement, to approve the agreement by voting for it. Section 180 sets out certain pre-approval requirements that must be met before an employer requests employees to approve the proposed agreement. Sections 180(2), 180(3) and 180(4) are relevant for present purposes. They state:

Employees must be given copy of the agreement etc.

(2) The employer must take all reasonable steps to ensure that:

(a) during the access period for the agreement, the employees (the relevant employees) employed at the time who will be covered by the agreement are given a copy of the following materials:

(i) the written text of the agreement;

(ii) any other material incorporated by reference in the agreement; or

(b) the relevant employees have access, throughout the access period for the agreement, to a copy of those materials.

(3) The employer must take all reasonable steps to notify the relevant employees of the following by the start of the access period for the agreement:

(a) the time and place at which the vote will occur;

(b) the voting method that will be used.

(4) The access period for a proposed enterprise agreement is the 7-day period ending immediately before the start of the voting process referred to in subsection 181(1).

....”

[7] I should also refer to two other sections of the Act that are relevant. Section 186(2)(a) provides that, to approve an enterprise agreement, I must be satisfied that the agreement has been genuinely agreed to by the employees covered by it. Section 188 sets out the circumstances in which an enterprise agreement has been genuinely agreed to by employees covered by the enterprise agreement. Relevantly, s.188(a)(i) requires that the employer must have complied with ss.180(2) and (3).

[8] Submissions were filed by the Employer, the CEPU, and APESMA about the issue I am here dealing with however subsequently, the impact of s.40A of the Act was brought to their attention and further submissions were filed. Section 40A of the Act is in these terms:

“40A Application of the Acts Interpretation Act 1901

(1) The Acts Interpretation Act 1901, as in force on 25 June 2009, applies to this Act.

(2) Amendments of the Acts Interpretation Act 1901 made after that day do not apply to this Act.”

[9] The initial submissions of the parties had addressed the significance of amendments made in 2011 to s.36 of the Acts Interpretation Act 1901 (AI Act). Parts of those submissions were subsequently not relied upon. The submissions that were relied upon accepted that s.36 was to be read as being in the terms it was prior to the 2011 amendments. It then read as follows:

“36 Reckoning of time

(1) Where in an Act any period of time, dating from a given day, act, or event, is prescribed or allowed for any purpose, the time shall, unless the contrary intention appears, be reckoned exclusive of such day or of the day of such act or event.

(2) Where the last day of any period prescribed or allowed by an Act for the doing of anything falls on a Saturday, on a Sunday or on a day which is a public holiday or a bank holiday in the place in which the thing is to be or may be done, the thing may be done on the first day following which is not a Saturday, a Sunday or a public holiday or bank holiday in that place.”

Two decisions addressed by the parties

[10] There are two particular decisions which were addressed by the parties I should now refer to. The first is a decision of a Full Bench of Australian Industrial Relations Commission in Whites Discounts Pty Ltd trading as Everybody’s IGA Everyday and Broken Hill Foodland. 2That decision concerned an appeal against the approval of an enterprise agreement made under the then s.170LK of the Workplace Relations Act 1996 (Cth). An issue arose in respect to whether the requirements in s.170LK(2) of the Act had been met. It was common ground that the agreement was one of the kind to which s.170LK(2) applied and that if that section had not been complied with the agreement could not be certified. It was also not in dispute that the notice of intention to make the agreement was given on 14 January 2003 and the vote was conducted on 28 January 2003 and the agreement was made by a “valid majority” on that day. The question was whether when the agreement was made 14 days had passed since the giving of the notice of intention to make the agreement. The Full Bench said:

“[13] Section 170LK(2) is in these terms:

"(2) The employer must take reasonable steps to ensure that every person employed at the time whose employment will be subject to the agreement has at least 14 days' notice, in writing, of intention to make the agreement, and the agreement must not be made before those 14 days have passed."

...

[15] Section 36(1) of the Acts Interpretation Act 1901 deals with the manner in which time is to be reckoned in construing statutes. It reads:

"(1) Where in an Act any period of time, dating from a given day, act, or event, is prescribed or allowed for any purpose, the time shall, unless the contrary intention appears, be reckoned exclusive of such day or of the day of such act or event."

[16] In our opinion s.36(1) is conclusive. The prima facie rule is that time is to be reckoned exclusive of the day of the relevant event. Applying that approach to the construction of s.170LK(2), time is to be reckoned exclusive of the day on which notice is given of intention to make an agreement. In this case that day was 14 January 2003. The vote which constituted the employee's acceptance of the agreement proposed by the employer took place on 28 January 2003. On that date only 13 days had passed. Although the prima facie rule may be displaced if a contrary intention appears from the statute, there is no indication in the Act, express or implied, that the rule should not apply to the construction of s.170LK(2).”

[11] The next decision is of Senior Deputy President O’Callaghan in McKechnie Iron Foundry Pty Ltd 3(McKechnie). This concerned an application for approval of an enterprise agreement made pursuant to s.185 of the Act. The process whereby employees were advised of the vote and the voting methodology and had access to the agreement in its final form was the only matter of concern. An issue arose as to whether the employer had complied with ss.180(3) and (4). Like here, the issue related to the access period and the manner in which that period was to be calculated. His Honour set out the provisions of s.180 and said:

“[10] The requirements of this section are mandatory in that the section represents essential requirements for approval and there is no license or jurisdiction extended to Fair Work Australia to approve an agreement that has been made without compliance with these requirements.

[11] Subsection 180(4) requires that the access period be counted in days before the start of the voting period”

[12] His Honour then referred to Whites Discounts Pty Ltd trading as Everybody’s IGA Everyday and Broken Hill Foodland and the extracts from that decision I have set out earlier at paragraph [10]. He noted that employees had been notified of the matters referred to in s. 180(3) on 19 February 2010. His Honour then said:

“[14] I consider that I am obliged to replicate that same method of counting days for the purposes of section 180(4), albeit in reverse, because of the structure of that provision.

[15] The vote for the agreement occurred on 26 February 2010. The seven-day period ending immediately before the start of the voting process ended on 18 February 2010.

[16] It follows that the provision of information to employees about the vote, and the voting methodology, together with the provision of the agreement itself was one day after that date and therefore not consistent with the provisions of the Act.

[17] This therefore precludes any capacity to approve the agreement and I must decline to do so.”

[13] I now turn to the parties submissions. The Employer summarised its position in these terms:

“Section 36 of the AI Act is not engaged because s. 180(4) of the FW Act does not deal with “any period of time, dating from a given day, act or event” (my emphasis) and in any event a contrary intention is discernible in accordance with Hydro’s initial submissions [sic]

If s. 36 does apply then the “day, act or event” must be identified. Section 180(4) deals with a period of time ending with the vote. As such the “day, act or event” for the purposes of s. 36 is the vote, not the giving of the notice;

Accordingly the day of the event (the vote) is excluded which still leaves Hydro with the required 7 days ending immediately before the start of the vote because the day of giving notice is counted;…”

[14] The Employer submitted that McKechnie was wrongly decided because the Senior Deputy President excluded the first day (the day of giving notice) and the last day (the day of the vote). It submitted he had failed to identify what the “day, act or event” was from which time was to be calculated. In its view, even if s.36 was relevant there is only one event in s.180(4) and only one day is to be excluded. The Senior Deputy President O’Callaghan had in effect required a total of nine days for the notification to occur and the voting process to start.

[15] The Employer submitted that the question for determination here is whether the time between 10.34am on 11 December 2013 and the commencement of the vote at 11.00 am on 18 December 2013 is within the meaning of the “7 day period ending immediately before the start of the voting process”. It is submitted that it clearly is. This was to be determined by deciding what the “7 day period” requires in terms of the number of days from the beginning of the access period to the commencement of the vote. It said that the Explanatory Memorandum is of no assistance in helping with this issue.

[16] The Employer submitted that a day is usually defined as the 24 hour period that begins on one midnight and ends the following midnight. However, such a general rule must yield to the words of a statutory provision which specifies the relevant time period. Here the section refers to a period ending “immediately before the start of the voting process”. It is the time of the commencement of the voting process which defines the end of the seven day access period. As such the 24 hours in each of the seven days are to be calculated having regard to the time of the commencement of the voting process.

[17] The Employer noted that, unusually, in the case of s.180(4) time is worked out by counting backwards rather than forwards. The access period is defined as ending at a certain time or event (the event being the commencement of the voting period) rather than commencing from a certain time or event. The Employer therefore submits one should count backwards seven periods of 24 hours from 11.00 a.m. on the date of the vote, namely 18 December 2013.

[18] It was also submitted that the time is defined as ending “immediately before” an event, not expressed as immediately before a day. An example was given of a vote which is to be at 0900 on any day and the question asked as to when is “immediately before” that event? It is 0859 on the day of the event. That, in its view, is the plain meaning of the words of 180(4). Section 180(4) does not specify anything to end (or start) before any specified day.

[19] The Employer submitted that the meaning of the words ‘seven day period ending immediately before the start of the voting process’ as set out in s.180(4) is clear, and may be used in the ordinary natural sense without resort to any other aids for interpretation including the AI Act. Accordingly, it submitted that s.36(1) of that act was of no application. Section 180(4) does not speak of the event (the vote) dating from a given day at all, but of ending at “the start of the voting process”. As such that phrase must be given work to do. It disagreed with the construction advocated by the CEPU that the provision should be read as “ending immediately before the day of the start of the voting process”. There was no proper basis to read the section in that way. It stressed that s.180(4) is not “any period of time, dating from a given…..event” for the purposes of s.36.

[20] In conclusion, the Employer submitted that there were seven clear 24 hour periods from the giving of the notice at 10.34 on 11 December until the vote commencing at 11.00 a.m. on 18 December. The relevant provisions of s.180 had been complied with.

[21] I am not persuaded to accept the Employer’s submissions. I prefer the reasoning urged upon me by the CEPU (and supported by the APESMA).

[22] I accept that adopting the approach in McKechnie, and noting the vote was to take place on 18 December 2013, the seven day period ending immediately before the start of the voting process ended on 10 December 2013. The email of 11 December 2013 was one day after that date.

[23] I also accept the CEPU submission that unless a provision of the Act suggests otherwise I should adopt the presumption that, in the calculation of time, part days should be discarded and calendar days should be considered in their entirety. A similar consideration is applicable to assessing days as being any 24 hour period between any hour on one day and the corresponding hour on the next. Such a construction on what is meant by a “day” should not be accepted unless the relevant provisions make it clear it is the way to calculate time rather than a day meaning a calendar day. The Employer submitted there was no presumption as submitted by the CEPU. I note however the CEPU cited Pearce and Geddes Statutory Interpretation in Australia, 7th ed, pp.238-239 where the authors say:

“The thinking underlying the Interpretation Act provision owes much to the difficulties that arise if the time is to run from the day of the event. If it is to commence at the first moment of time on that day, there is then an effective back-dating of the period. If it is to commence from the time of the triggering event there are practical problems in identifying that precise time. It is for these reasons that the general approach has been adopted by courts of not paying credence to parts of days: see the discussion in Associated Beauty Aids Pty Ltd v Commr of Taxation (1965) 113 CLR 662 at 669.

However, it may be that the validity of an act is dependent upon the precise time of an event in which case the approach referred to above will be displaced: see Marshall v D G Sundin & Co Pty Ltd (1989) 16 NSWLR 463 where the time of a person’s death determined whether an action had been properly commenced. See also South Australia v Slipper (2003) 203 ALR 473 where a requirement that notice be given before an acquisition could occur was not rendered invalid because it was given prior to but on the same day as the acquisition. The legal fiction that parts of days should be ignored had no application in circumstances where the actual sequence of events determined the validity of the action: at 489-90. (This conclusion appears not to have been affected by the upholding of an appeal against the decision in the case: South Australia v Slipper (2004) 136 FCR 259).

While recognising the possibility of a contrary intention, the Interpretation Act approach of excluding the day of the relevant event has also been used to ascertain the length of a period expressed to run ‘as from’ a specified date: Associated Beauty Aids Pty Ltd v Commr of Taxation (1965) 113 CLR 662 at 668...”

[24] I also note that the approach referred to in Associated Beauty Aids Pty Ltd v Commissioner of Taxation has been cited in a number of subsequent decisions 4 although in all cases it is clear that the presumption is to give way to provisions which suggest a contrary construction. The only suggestion here that a contrary construction may be appropriate is due to the reference in s.180(4) to a time “immediately before” the start of the voting process rather than expressly to the day before the start of that voting process. However, I think the reference to the calculation being made to be a seven day period suggests that it is to calendar days before the vote starting and not to seven lots of 24 hours periods.

[25] I agree with the CEPU that the occurrence of an event on a particular day meant that time was reckoned exclusive of the entirety of the day on which that event occurred. Here the email advising employees of the time and place of the vote and the voting method to be used was sent at 10.34am on 11 December 2013. Because the vote was to take place on 18 December 2013, the seven day period ending immediately before the start of the voting process ended on 10 December 2013. The email of 11 December 2013 was one day after that date.

[26] The CEPU took issue with the Employer’s submission that “180(4) is “not a [sic] “any period of time, dating from a given…event”. It says that the plain words of s.180(4) render the contention “ludicrous”. The subsection describes a “7 day period”, which is a “period of time”, and describes the limits of that period of time as that calculated to end immediately before the start of the voting process – it requires a counting back of the “7 day period” from the start of the voting process. That is, the seven day “period of time” dates “from a given event”. This is precisely the type of statutory calculation of time with which s.36(1) was drafted to assist.

[27] I also agree with the CEPU that it is important to note that the information referred to in s.180(3) is to be given by the start of the access period and because the relevant information required by s.180(3) was not provided until part way through 11 December 2013, the information was not provided in accordance with that express requirement. This express requirement is buttressed by the presumption earlier referred to that in the calculation of time in statutes part days should be excluded and days should be considered in their entirety.

[28] For these reasons, the CEPU submitted that the Agreement is not capable of approval due to a failure by the Employer to comply with s.180(4) of the Act. The “access period” provided to relevant employees by the Applicant was insufficient to meet the requirements of the Act. As a consequence I cannot be satisfied that the employees to be covered by the Agreement genuinely agreed to the Agreement as is required by s.188 of the Act. I agree with this submission.

[29] I note that the parties accept that in the event I decided the access period issue against the Employer my ruling should be that the application for approval is dismissed. I so rule.

SENIOR DEPUTY PRESIDENT

 1   Form F17, attachment 2.

 2   PR937496.

 3   PR996300.

 4   I note as examples the following: Re Serafino; Ex Parte Classic Manufacturing Pty Ltd 86 ALR 283 at 286-287; Colburn Nominees Pty Ltd v Prime Minerals Ltd [2009] WASC 289 at paragraph 25; and ABC World Pty Ltd v Minister for Immigration [2005] FMCA 934 at paragraph 34.

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