Lofa Pty Ltd ATF the Transpa Trust trading as Haycroft Workplace Solutions
[2009] FWA 1348
•30 NOVEMBER 2009
[2009] FWA 1348 |
|
DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
(AG2009/15305)
SENIOR DEPUTY PRESIDENT RICHARDS | BRISBANE, 30 NOVEMBER 2009 |
Application for approval of the Lofa Pty Ltd ATF the Transpa Trust Enterprise Agreement – requirements under s.181(2) and s.188(a)(ii) of the Fair Work Act 2009 – 21 days – how 21 days is counted – s.36 of the Acts Interpretation Act 1901 - whether strict compliance of the Act required – s.54 of the Fair Work Act.
[1] The Applicant, Lofa Pty Ltd ATF the Transpa Trust trading as Haycroft Workplace Solutions, in this matter made an application pursuant to s.185 of the Fair Work Act 2009 (“FW Act 2009”) to Fair Work Australia on 25 September 2009 for the approval of a single enterprise agreement known as the Lofa Pty Ltd ATF the Transpa Trust Enterprise Agreement (“the Agreement”).
[2] An issue arose in the course of considering the application, at my prompting, as to whether the proposed agreement was compliant with s.181(2) and s.188(a)(ii) of the FW Act 2009. These provisions are set out further below.
[3] The Applicant was invited to provide submissions in writing or to attend a hearing. The Applicant elected to the make written submissions.
[4] The Applicant was of the view that the proposed agreement had complied with the requirement not to request the employees to be covered by the proposed agreement to approve the agreement “until at least 21 days after the day on which the last notice under s.173(1) of the FW Act 2009 had been given”.
[5] The Applicant in this respect states in its written submissions that it:
“gave the last notice of employee representation rights on a Thursday the 27th August and then held a meeting to ask the employees to approve the agreement three weeks later on Thursday 17th September […].”
[6] This was said to be compliant with the requirements of the FW Act 2009.
LEGISLATIVE CONTEXT
[7] The relevant provisions of the FW Act 2009 are as follows:
“181 Employers may request employees to approve a proposed enterprise agreement
(1) An employer that will be covered by a proposed enterprise agreement may request the employees employed at the time who will be covered by the agreement to approve the agreement by voting for it.
(2) The request must not be made until at least 21 days after the day on which the last notice under subsection 173(1) (which deals with giving notice of employee representational rights) in relation to the agreement is given.
(3) Without limiting subsection (1), the employer may request that the employees vote by ballot or by an electronic method.
182 When an enterprise agreement is made
Single-enterprise agreement that is not a greenfields agreement
(1) If the employees of the employer, or each employer, that will be covered by a proposed single-enterprise agreement that is not a greenfields agreement have been asked to approve the agreement under subsection 181(1), the agreement is made when a majority of those employees who cast a valid vote approve the agreement.
188 When employees have genuinely agreed to an enterprise agreement
An enterprise agreement has been genuinely agreed to by the employees covered by the agreement if FWA is satisfied that:
(a) the employer, or each of the employers, covered by the agreement complied with the following provisions in relation to the agreement:
(i) subsections 180(2), (3) and (5) (which deal with pre-approval steps);
(ii) subsection 181(2) (which requires that employees not be requested to approve an enterprise agreement until 21 days after the last notice of employee representational rights is given); and
(b) the agreement was made in accordance with whichever of subsection 182(1) or (2) applies (those subsections deal with the making of different kinds of enterprise agreements by employee vote); and
(c) there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees.”
[8] The Explanatory Memorandum to the FW Act, at Item 745, which comments upon s.181(2) of the FW Act, reads as follows:
“745. Subclause 181(2) provides that an employer cannot request employees to vote for the proposed enterprise agreement until at least 21 days after the employer has given the last notice of employee representational rights to the employees employed at the notification time who will be covered by the agreement under clause 173.”
[9] Item 794 of the Explanatory Memorandum comments in relation to s.188(a)(ii) of the FW Act as follows:
“794. Paragraph 188(a) requires FWA to be satisfied that the employer or each of the employers has complied with the pre-approval steps (subclauses 180(2), (3) and (5)) and that the request for employees to approve the agreement was made at least 21 days after the day on which the employer provided the last employee with a notice of representational rights.”
[10] In defense of the proposition that it believed the proposed agreement for which approval had been sought from Fair Work Australia met the statutory requirements, the Applicant submitted in as follows (albeit in edited form):
1. “What does “until 21 days after” really mean? […] substitute x instead of the number 21. […] Now is the point of confusion at the end of the 21 days or when in fact when the 21 days is supposed to start? Since we can all count can we agree that the issue is really when we start counting from? In that case then let us test the proposition day by day and see what result we get.
In this way let us investigate “until x days after” to establish the correct logical parameters. Let us now assume different values for x, starting with “the number “one””. I.e. x = 1. The next point is to apply the common man test. I.e. What would most people understand by the statement. What is the ordinary meaning of the statement because the legislation does not define it in any special or esoteric way. It simply says “until x days after” . X is 21 but the principle is exactly the same if x is 1 or any other integer.
If, in the general sense we were to go and ask 1000 people at random, “that if today is say Monday, what would be one day after Monday?” Could I suggest that 999 people would answer Tuesday. […]
Legislation is meant to have commonly understood meanings, and common usage dictates that one day after today is actually tomorrow, not the day after tomorrow. If that point is accepted that we know when x is one what one day after really means, then by simple extrapolation, starting on a Thursday, when one week later, or seven days after is the following Thursday and so on. Three weeks is 21 days (i.e. x=21) equals three Thursdays later. It does not mean the day after that when x is 21 just as it doesn’t mean the day after tomorrow when x is one.”
2. Is that explanation in any way ambiguous?
In the absence of possibly confusing terms such as “clear”, “full”, “consecutive”, which are not in fact in the legislation itself, then the words used must be given their ordinary meaning. The day after today for nearly everyone is tomorrow, not the day after tomorrow. […] The wording as written in the legislation is not ambiguous. […] Nearly everyone knows that one day after today is tomorrow, not the day after tomorrow […]
3. What is a day? When does it begin and end, and, does it have component parts?
The answer to this question only has relevance if you rule that “one day after today” is not tomorrow but in fact the day after tomorrow. In that case, let us define a day as a 24 segment block of consecutive separate hours. We could further argue that a day is equally 24x60x60 consecutive seconds. The point of this is, if one is to argue, against common usage as established in point 1, then the period of a day would occur, 24x60x60 seconds plus one instant after the deemed beginning of the day.
In the case of our Enterprise Agreement, the starting point for the day for which 21 days are to follow is the time in which the employees were actually advised of their representational rights. In each case it was the morning of the Thursday the 27th August. Let us say for the point of argument that it was (say) 10.00 am. (In all cases it was in the morning.)
From first principles, one day after, as defined by common usage, would be anytime on the following day, but if we are to be pedantic, a complete day would not have elapsed until one second (or one instant) after 10.00 am on the following day. By that token, provided the meeting was held after 10.00 am (it was actually held at 4.00 pm) then 21 consecutive and complete and clear 24 hour blocks (24x60x60 second blocks) plus extra time (4 to 8 hours) passed after the advices were originally given.
4. What is the purpose of the 21 days notice (however defined) and does a day either way really matter?
[…] the overt purpose in the legislation should be accepted. i.e. The notice is to give employees sufficient time to lift any veil of doubt or confusion that may prevent them from becoming sufficiently informed to genuinely agree, or indeed disagree, which the proposal.
The legislation says inter alia that at least 3 weeks should elapse from go to whoa for that purpose. Does it really matter if it is 20 days or 22 days? Provided the parties have in good faith met what ordinary people would understand by three weeks or 21 days, and there has been no attempt to subvert the intent of the legislative provisions, then only pendantism is served by redefining the common meaning of a term to mean other than what normal people believe it to mean.
[…]
In common usage the term “until the day after today will always be understood to mean ‘until tomorrow’ and not ‘until the day after tomorrow. If you want to be precise you could argue that one day after today may have an actual time precisely 24 hours after the intended act which triggers the time commencement.
In that case our agreements complied anyway, because the relevant meeting was held in no case less than four hours after the anniversary of 21 complete days. […]” (sic)
[11] The Applicant’s submissions reasonably touch upon the key issues. When does 21 days start? Is the 21st day “after” 21 days and how are 21 one days calculated? Can the purpose of the FW Act 2009 be given effect without strict compliance?
[12] Section 36(1) of the Acts Interpretation Act 1901 provides guidance as to how a statute is to be interpreted in relation to time. It reads as follows:
“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.” [my emphasis]
[13] Time, the Acts Interpretation Act 1901 states, is to be reckoned exclusive of the day (in this instance) on which the notice (under s.173(1) of the FW Act 2009) is given. The first day, therefore, is the day after the notice is given.
[14] Given this, can it be held that an action (the request to approve the agreement in this case) can be made on the 21st day after the notice was given, as is the case in the matter before me?
[15] Section 181(2) of the FW Act 2009 requires that a request cannot be made “until at least 21 days after the day on which the last notice” is given.
[16] The Acts Interpretation Act 1901 appears to me to suggest that the first day commences after the full cycle of one day has passed. That is, the first day can only be counted from the commencement of the first full day.
[17] In reckoning the statute in this way, each day that follows, therefore, must be taken to be a full day.
[18] If I did not accept this, then I would be concluding that whilst the first day must be the first full day after the notice was given, the last day after the notice was given (the 21st day) may be a part or partial day (unlike the first day).
[19] A conclusion of this kind would be inconsistent with the Acts Interpretation Act 1901.
[20] It further follows, therefore, that the request to approve the agreement cannot take place until the commencement of the 22nd day, at the earliest. This is because that day is 21 days after the notice was given.
[21] For these reasons, I am unable to accept the submission of the Applicant that 21 days have passed when the request to approve the agreement is made on the 21st day.
[22] Can there be substantial compliance with the rule (as the Applicant alluded) such that the rule does not need to be complied with in its strict terms? In the decision of the Full Bench of the Australian Industrial Relations Commission in White Discounts 1, consideration was given to compliance with s.170LK(2) of the Workplace Relations Act 1996.
[23] Section 170LK(2) of the Workplace Relations Act 1996 was 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.”
[24] The argument before the Bench was whether the persons whose employment was to be subject to the agreement were provided the required (minimum) 14 days notice of the intention to make the agreement. The Bench’s conclusion were as follows:
“[12] It is only necessary to deal with one ground of appeal. The substance of that ground is that the requirement in s.170LK(2) of the Act had not been complied with. It is common ground that the agreement was one of the kind to which s.170LK(2) applied and that if s.170LK(2) had not been complied with the agreement could not have been certified.
[…]
[14] Mr Rogers submitted that in this case 14 days had not passed between the giving of notice in writing of intention to make the agreement and the making of the agreement. The relevant facts are not in dispute. The Commissioner found that notice of intention to make the agreement was given by the employer in writing on 14 January 2003. That finding was not disputed on appeal, even though it was submitted that the notice may not have been communicated to some employees until after that date. A vote was conducted on 28 January 2003 and the agreement was made by a "valid majority" on that day.5 The simple point upon which Mr Rogers relied is that when the agreement was made on 28 January 2003 14 days had not passed since the company had given notice of intention to make it, contrary to the requirements in s.170LK(2).
[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).
[17] Section 170LK(2) must be complied with if an agreement of the kind provided for in s.170LK is to be certified. Accordingly the Commissioner erred in certifying the agreement.”
[25] The decision of the Full Bench is not entirely on all fours with the current circumstances. It concerns from what day counting commences for purposes of determining if 14 days had passed. Because it was found that the first full day had not passed until the following day after the notice was issued, only 13 days had passed by the time the persons to be covered by the agreement were asked to approve the agreement. In the matter before me, I am being asked to determine whether an action (the request to approve the agreement) that falls on the twenty-first day meets the requirement that:
“the request must not be made until at least 21 days after the day on which the last notice […] in relation to the agreement is given.” [my emphasis]
[26] I have given my reasons for conclusion above in this regard.
[27] That said, the Bench’s findings in relation to the importance of compliance with a statutory rule are relevant to the matter before me.
[28] As with s.170LK(2) of the Workplace Relations Act 1996, s.181(2) of the FW Act is couched in mandatory terms:
“the request must not be made […]” [my emphasis]
[29] The Full Bench found that in relation to s.170LK(2) of the Workplace Relations Act 1996 that:
“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).
Section 170LK(2) must be complied with if an agreement of the kind provided for in s.170LK is to be certified. Accordingly the Commissioner erred in certifying the agreement.”
[30] There is no indication in the FW Act 2009 any more than the Workplace Relations Act 1996 of any contrary intention other than that there must be compliance with the prima facie rule: that a request to approve an agreement must not be made until after 21 days have passed. Neither the Objects of the Part at s.171 of the FW Act 2009 nor the Explanatory Memorandum suggest (if it could) that the plain words of the FW Act could be construed more liberally such that the mandatory rule should be set aside.
[31] Like s.170LK(2) of the Workplace Relations Act 1996, an agreement of the kind provided for under the FW Act 2009 must comply with s.181(2) of the FW Act 2009 in order to be approved by Fair Work Australia.
[32] On this reasoning, FWA cannot approve the proposed agreement that is now before it as it is not compliant with s.181(2) (nor s.188(a)(ii)) of the FW Act 2009. Because of this, I must dismiss the application as a consequence.
[33] An order giving effect to this decision will issue simultaneously.
[34] I add, by way of conclusion, that s.54 of the FW Act 2009 appears also to be affected by the view I have taken of s.36 of the Acts Interpretation Act 1901. Section 54 of the FW Act 2009 reads:
“When an enterprise agreement is in operation
(1) An enterprise agreement approved by FWA operates from:
(a) 7 days after the agreement is approved; or
(b) if a later day is specified in the agreement—that later day.” [my emphasis]
[35] Consistent with the above reasoning, “seven days after” also appears to mean seven full or clear days after the agreement is approved, such the agreement can only operate from the commencement of the 8th day.
SENIOR DEPUTY PRESIDENT
1 Appeal by the Shop, Distributive And Allied Employees Association against the decision of Commissioner Lawson issued on 9 May 2003 [PR931232] – Re: White’s Discounts Pty Ltd T/As Everybody's IGA Everyday And Broken Hill Foodland PR937496 (12 September 2003)
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<Price code {C}, PR991235>
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