Tooheys Pty Limited v Liquor, Hospitality and Miscellaneous Union
[2010] FWA 9210
•30 NOVEMBER 2010
[2010] FWA 9210 |
|
DECISION |
Fair Work Act 2009
s.418 - Application for an order that industrial action by employees or employers stop etc.
Tooheys Pty Limited
v
Liquor, Hospitality and Miscellaneous Union
(C2010/5678)
COMMISSIONER THATCHER | SYDNEY, 30 NOVEMBER 2010 |
Industrial action – meaning of 3 working days notice
DECISION
[1] Earlier today I issued an order 1 that strikes being organised by the Liquor, Hospitality and Miscellaneous Union (LHMU) at Tooheys’ brewery at Lidcombe between 10.00pm tonight and midnight tomorrow night stop, not occur and not be organised. The order was the outcome of an application by Tooheys for an order under s.418 (FWA must order that industrial action by employees or employers stop etc) of the Fair Work Act 2009 (the Act). These are the reasons for my decision.
[2] On 25 November 2010 the LHMU served on Tooheys a notice of intention to take industrial action in the following terms:
“Please be advised that in accordance with Section 414, Fair Work Act 2009, the Liquor, Hospitality and Miscellaneous Union, Liquor & Hospitality Division, NSW Branch, being a bargaining representative of employees who will be covered by the proposed enterprise agreement, gives notice that employee claim action will be commenced as follows;
Date on which it will start: 30 November 2010
Nature of action: LHMU members employed at Tooheys Pty Ltd at 29 Nyrang Street Lidcombe shall strike for a period of 24 hours from 10pm Tuesday 30 November 2010 until 10pm Wednesday 1 December 2010.”
[3] On 26 November 2010 the LHMU served on Tooheys two notices of intention to take industrial action. It is only relevant to refer to one of those notices, which was in the following terms:
“Please be advised that in accordance with Section 414, Fair Work Act 2009, the Liquor, Hospitality and Miscellaneous Union, Liquor & Hospitality Division, NSW Branch, being a bargaining representative of employees who will be covered by the proposed enterprise agreement, gives notice that employee claim action will be commenced as follows;
Date on which it will start: 1 December 2010
Nature of action: LHMU members employed at Tooheys Pty Ltd at 29 Nyrang Street Lidcombe shall strike for 2 hours from 10pm to midnight.”
[4] The case turned on whether the proposed industrial action would be protected action under the Act. Specifically whether the requirement in s.414 that the period of notice be at least ‘3 working days’ has been met. If the notices of 25 and 26 November 2010 met that requirement the industrial action is protected action and the application cannot succeed.
[5] Tooheys referred to the definition of ‘working day’ in s.12 (The Dictionary) of the Act as meaning ‘a day that is not a Saturday, a Sunday or a public holiday’.
[6] Also, it submitted that the 3 working days refers to 3 clear working days. In support, it referred to:
(a) the Expanatory Memorandum to the Fair Work Bill 2008 which, when referring to the clause that was to become s.414 of the Act, included:
“1668. Working day is defined as a day that is not a Saturday, a Sunday or a public holiday. Three working days is intended to mean three clear (full) days, which excludes both the day on which the notice is given and the day when the action is to occur”;
(b) Section 36 (Reckoning of time) of the Acts Interpretation Act 1901 that includes:
“(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”; and
(c) The decision of Wilcox J of the Federal Court in Construction, Forestry, Mining & Energy Union & Anor v Curragh Queensland Mining Ltd 2 which considered whether the notice requirements in s.170MO(1) of the Workplace Relations Act 1996 had been met and included:
“Where a statute requires ‘at least’ a certain number of days’ notice to be given before an event occurs, this means clear (full) days: see Ayres v Chacos (1972) 19 FLR 468 at 469-471 and the authorities there cited. The computation of days must exclude both the day upon which the notice is given and the day when the event is to occur. Applying that rule to the present case, it is necessary to exclude from the computation both 29 July (when the notice was given) and 1 August (when the stoppage was intended to commence). These leave only two days, 30 and 31 July.”
[7] The LHMU submitted that:
“Despite the citations and the provisions presented by the company, we say there were appropriately three working days. We say three clear - we say working days, we're not calling them business days. Business days are 9.00 to 5.00 - and that they're certainly - if you look over the days in question, there are three working days. That's our submission. If the commission finds no favour with that argument, then it will find that the appropriate notice was given.” 3
[8] It will be noted that in the definition of ‘working day’, the days excluded from being working days are expressed as calendar days.
[9] It follows that the working days that are not so excluded by that definition are also calendar days, namely Monday, Tuesday, Wednesday, Thursday and Friday – provided they are also a public holiday.
[10] A calendar day is from midnight to midnight.
[11] If the Parliament had intended that a ‘day’ be a period of 24 hours or that a working day be a period of hours less than a calendar day, it would have specifically provided for this in the Act. 4
[12] Thus, for the purpose of calculating 3 working days written notice under s.414(2) in this matter, because the written notices were given on Thursday 25th and Friday 26th November 2010 for industrial action that is to commence on Tuesday 30th November and Wednesday 1 December 2010 respectively, the 3 working days must exclude Saturday 27th and Sunday 28th November 2010 and be reckoned exclusive of the calendar days on which the notices were given and the industrial action was to occur. In each case the period of notice was only 2 clear working days.
[13] Therefore in each case the period of notice required by s.414, namely the 3 working days notice prescribed by s.441(2) has not been met. The effect of this is that the proposed industrial action referred to in the notices will not be protected action.
[14] After considering all of the material before FWA I was satisfied that the jurisdictional preconditions in s.418 have been met. Therefore I am required to make an order under that section.
[15] In exercising my discretion as to the terms of the order I considered what would have ‘a rational or logical tendency to stop or prevent the industrial action and/or its organisation’. 5 In doing so I have not accepted Tooheys submission that the order should specify the prohibited industrial action in broad terms and that the order be operative for 6 months. Given that this matter turns on an issue distinctly different to that which led to my decision of 20 November 20106 to grant the Tooheys Pty Limited Industrial Action Order 2010,7 I have not concluded that the LHMU has deliberately adopted a pattern of organising unprotected industrial action.
[16] The order has a stop period commencing 10.00 pm on Tuesday 30 November 2010 and expiring midnight on Wednesday 1 December 2010. The order operates concurrently with the Tooheys Pty Limited Industrial Action Order 2010. The order will not affect industrial action authorised by the protected action ballot in respect of which the notice requirements set out in s.414 are met.
COMMISSIONER
Appearances:
A. Gotting, of Counsel, with L. Edwards for Tooheys Pty Limited.
C. Acev for the Liquor, Hospitality and Miscellaneous Union.
Hearing details:
2010.
Sydney:
November 30.
1 PR504475.
2 [1998] 1231 FCA (30 September 1998).
3 PN174.
4 Such is the case in s.420(1) and s.440 of the Act.
5 Transport Workers' Union of New South Wales v TNT Australia Pty Ltd Riteway Transport Pty Limited t/as Riteway Express, PR973479, 31 July 2006, per Giudice J President, Hamilton DP and Hingley C at paragraph 9.
6 [2010] FWA 8922.
7 PR504120.
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