1
Fair Work Act 2009
s.604 - Appeal of decisions
Construction, Forestry, Maritime, Mining and Energy Union and Ors
v
CBI Constructors Pty Ltd
(C2018/129)
VICE PRESIDENT HATCHER
DEPUTY PRESIDENT DEAN
COMMISSIONER HUNT
SYDNEY, 21 JUNE 2018
Appeal against decision [2017] FWCA 6837 of Deputy President Colman at Melbourne on 19
December 2017 in matter number AG2017/2750.
Introduction
[1] The Construction, Forestry, Maritime, Mining and Energy Union, the
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied
Services Union of Australia, the Australian Manufacturing Workers’ Union and the
Australian Workers’ Union (collectively the Unions) have lodged an appeal, for which
permission to appeal is required, against a decision of Deputy President Colman issued on 19
December 20171 (Decision) pursuant to s 605 of the Fair Work Act 2009 (Cth) (FW Act). The
Decision concerned an application by CBI Constructors Pty Ltd (CBI) lodged under s 185 of
the FW Act for approval of the Project Agreement 2017 (Agreement). Against the
submissions advanced by the Unions, the Deputy President determined that:
the requirement in s 180(3) of the FW Act that employees be advised of the time and
place of the vote to approve the Agreement, and the voting method to be used, by the
start of the “access period” for the Agreement, was satisfied;2
he was satisfied that the group of employees covered by the Agreement was “fairly
chosen” in accordance with the requirements in s 186(3) and (3A);3
the Agreement was “genuinely agreed to” by the employees covered by it in
accordance with the requirements in s 186(2)(a) and 188(c);4
1 [2017] FWCA 6837
2 Decision at [11]-[31]
3 Decision at [32]-[39]
4 Decision at [40]-[56]
[2018] FWCFB 2732
DECISION
E AUSTRALIA FairWork Commission
[2018] FWCFB 2732
2
the terms of the Agreement had been explained to employees in accordance with s
180(5);5
the Agreement did not contain unlawful terms or exclude the NES.6
[2] The Deputy President approved the Agreement on that basis. In their appeal, the
Unions contend that the Deputy President erred in his determination of each of these five
issues and consequently erred in approving the Agreement.
[3] For reasons which will become apparent, we need consider only the Unions’ challenge
to the first of these determinations, namely that the Deputy President erred in concluding that
s 180(3) had been complied with. This challenge, which is raised by grounds 1-3 of the
Unions’ notice of appeal, turns on the proper construction of s 180(4).
Relevant statutory provisions
[4] Section 186 prescribes a number of criteria about which the Commission must be
satisfied in order for it to approve an enterprise agreement. In respect of agreements that are
not greenfields agreements, s 186(2)(a) provides that the Commission must be satisfied that
“…the agreement has been genuinely agreed to by the employees covered by the agreement”.
Section 188 defines when, for the purpose of s 186(2)(a), employees can be said to have
genuinely agreed to an agreement. It provides:
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 the FWC 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.
5 Decision at [57]-[69]
6 Decision at [70]-[72]
http://classic.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s198.html#subsection
http://classic.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s198.html#subsection
http://classic.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s198.html#subsection
http://classic.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s198.html#subsection
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[5] Section 180(3), compliance with which is required by s 188(a)(i) in order for the
“genuinely agreed” approval requirement in s 186(2)(a) to be capable of satisfaction,
provides:
(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.
[6] Section 180(4) defines the expression “access period” as follows:
(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] Section 181 deals with voting to approve enterprise agreements in the following terms:
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.
[8] It was not in dispute in the appeal that the relevant effect of the above provisions was
that a failure to comply with the s 180(3) notification requirement meant that the enterprise
agreement subsequently voted upon was incapable of approval under the FW Act.
Factual background
[9] The evidence concerning the steps taken by CBI to inform the employees who would
be covered by the Agreement about the time and place at which the vote upon the Agreement
would occur, and the voting method to be used, was contained in the statutory declaration of
Sarah de Young dated 7 July 2017 that was lodged together with the application to approve
the Agreement, the witness statement of Ms de Young dated 7 December 2017, and the oral
evidence which Ms de Young gave at the hearing before the Deputy President on 8 December
2017. In short, the relevant employees were informed of the date and the place of the vote and
the voting method on 22 June 2017. This was, according to Ms de Young, effected in two
ways. First, she instructed a supervisor to read out a document entitled “HR Bulletin” to
employees at the pre-start meeting which occurred “On or about 6 am”. The following
morning, she called the supervisor and obtained confirmation from him that this had been
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done.7 The “HR Bulletin”, which was annexed to Ms de Young’s statutory declaration,
relevantly included the following:
“This is to advise that the vote for the Project Agreement 2017 will be held on:
- DATE: Thursday 29 June 2017
- TIME: Immediately after toolbox
- PLACE: Toolbox Room Location
The vote will be cast by secret ballot.”
[10] Second, on 22 June 2017 the employees were provided with a letter which attached a
number of documents, one of which was described in the letter as a “Notice regarding details
of upcoming vote”. It appears that this notice was also constituted by the “HR Bulletin”. The
letter and attached documents were “hand delivered” to the employees “just prior to or
around the time of their first crib break … Around 10am” on 22 June 2017.8 This was done by
the project manager, and Ms de Young obtained confirmation from him that this had been
done, and the time at which it was done, she not having been on-site that day.9 The vote to
approve the Agreement took place on 29 June 2017.10 In her witness statement Ms de Young
said that “the vote” took place on that day “… at or around 11.00am”.11
Unions’ case at the hearing
[11] At the hearing before the Deputy President, the Unions contended that the notification
requirement in s 180(3) had not been complied with because the definition of “access period”
required there to be seven clear calendar days between the notification of the time, place and
method of the vote and the commencement of the vote. On the Unions’ analysis, a vote which
took place on 29 June 2017 was required by s 180(3) to have been notified on 21 June 2017 or
earlier. In support of their analysis, they called in aid s 36(1) of the Acts Interpretation Act
1901 (Cth) (AI Act) which, as in force at 25 June 2009,12 provided:
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.
[12] The Unions also relied upon two previous decisions as supportive of its position:
Hydro Electric Corporation,13 in which the approach to s 180(3) for which it contended had
7 Transcript 8 December 2017 PNs 494-501
8 Transcript 8 December 2017 PNs 291-297
9 Transcript 8 December 2017 PNs 511-518
10 Transcript 8 December 2017 PN 226
11 Exhibit A1 paragraph 9
12 Section 40A(1) of the FW Act provides that “The Acts Interpretation Act 1901, as in force on 25 June 2009, applies to this
Act.” Section 40A(2) provides: “Amendments of the Acts Interpretation Act 1901 made after that day do not apply to this
Act.”
13 [2014] FWC 4169
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been preferred by Harrison SDP; and McKechnie Iron Foundry,14 in which O’Callaghan SDP
had applied s 36 of the AI Act to reach the same conclusion.
The Decision
[13] The Deputy President rejected the Unions’ contention and declined to follow Hydro
Electric Corporation and McKechnie Iron Foundry, and gave five reasons for doing so. The
first was that s 36(1) of the AI Act was inapplicable:
“[21] First, section 36 of the AI Act is concerned with a situation where a period of
time ‘dating from’ a given day, act, or event is ‘prescribed or allowed for any
purpose’. It may be accepted that the words ‘dating from’ are in principle capable of
looking forwards or backwards. However, the ‘purpose’ requirement in my view
suggests that the section looks forwards and not backwards. In one sense, any time
period in an enactment will serve some ‘purpose’, otherwise it will be redundant.
However, in my view, s.36 is concerned with an active purpose, rather than a
conceptual purpose, in relation to which a certain period of time is prescribed or
allowed. By excluding the first day, s.36 gives to the counting of time its ordinary and
commonly understood meaning: if a person is allowed 7 days for the purpose of
carrying out a task ‘from’ Monday, it must be completed by the following Monday.
The first Monday does not count as a day, otherwise the task would be due on the
coming Sunday. In my view, it is difficult to read s.36 as applying to the reckoning of
time into the past; there is no active purpose for which time can be prescribed or
allowed.”
[14] Second, the Deputy President said that even if s 36 of the AI Act could be read as
applying to the reckoning of time into the past, it did not apply to s 180(4) of the FW Act
because a contrary intention appeared in the latter provision. The day of the relevant “event”,
that is, the start of the voting process, could not be excluded from the calculation of time
because the seven-day period prescribed in s 180(4) ended “immediately before the start of
the voting process in s.181(1)”. This demonstrated, the Deputy President determined, that the
period on the day of the vote up until immediately before its commencement was part of the
seven-day process and was not excluded.15
[15] Third, the Deputy President considered that Hydro Electric Corporation and
McKechnie Iron Foundry relied upon the decision of the AIRC Full Bench in Whites
Discounts Pty Ltd,16 which was concerned with s 170LK of the Workplace Relations Act
1996. That provision was differently expressed and was one to which s 36 of the AI Act was
plainly applicable.17 Fourth, the Deputy President considered the conclusion in Hydro Electric
Corporation to be “problematic” (which we take to mean that it was wrongly decided).18
Fifth, the Deputy President contrasted s 180(4) with other expressions of time found in the
FW Act, such as ss 173, 181(2) and 414.19 The Deputy President concluded (footnote
omitted):
14 [2010] FWA 3171
15 Decision at [22]
16 PR937496
17 Decision at [23]
18 Decision at [24]
19 Decision at [25]
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“[26] In conclusion, the words of s.180(4) are to be given their ordinary meaning, read
in the context of Part 2-4 and the FW Act more generally. The words ‘the 7-day
period ending immediately before the start of the voting process’ are not concerned
with the giving of notice. They do not set anybody a task. They look back over the
preceding seven days from a particular moment in time, immediately before the vote.
The day of the vote is not excluded from the period. It is part of the period. If this
were not so, the word ‘immediately’ would be bent out of all semantic recognition.”
[16] Having accepted the evidence of Ms de Young and identified no reason to doubt the
truth of what she was told about what occurred on 22 June 2017,20 the Deputy President then
said:
“[29] In my opinion, the evidence establishes that the company complied with s.180(3)
and took all reasonable steps to notify (and did notify) employees of the time, place
and method of the vote ‘by the start of the access period for the agreement’. The
seven day access period comprised the seven days constituted by the seven 24 hour
periods ending immediately before the start of the voting process at or around
11.00am on 29 June 2017. The access period started at or around 11.00am on 22 June
2017. By that time the company had advised employees of the time and place at which
the vote would occur, and the voting method that would be used.
[30] I have some reservations about whether the reference to ‘day’ in s.180(4)
necessarily means a complete 24 hours. If it does carry this meaning, the satisfaction
of the requirements in s.180 would come down to matters of hours and minutes. It is
not clear to me that this is intended. On one view, the 7 day period refers simply to the
7 calendar days counting back from the vote, inclusive of the day of the vote. On this
reading, it would not have mattered if the employees had been provided details of the
voting arrangements after 11.00am on 22 June 2017 (hence receiving slightly less than
seven 24 hour periods). However, it is not necessary for me to determine this question,
as this is not what occurred in the present case.
[31] For the purposes of s.188(a), I am satisfied that the company has complied with
the pre-approval steps in sections 180(2) and (3).”
Appeal submissions
[17] In their appeal, the Unions’ submitted that the Deputy President’s reasons for
concluding that the day of the vote for an agreement formed part of the access period were
flawed for the following reasons:
The Deputy President was mistaken in concluding that s 36 of the AI Act was
incapable of applying to the calculation of days into the past. The preposition “from”
used in s 36 specified a day or an act or event in as the starting point, but was not
confined to calculating time after a starting point and could equally apply to
calculating time before a starting point.
A day is treated by the common law, absent a contrary intention, as being indivisible
and as commencing the first moment after midnight when it begins to the last moment
20 Decision at [28]
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before midnight when it ends. The approach taken by the Deputy President was
contrary to the ordinary legal meaning of what constituted a day.
Sections 173(3), 181(2) and 180(4) all deal with days and not with particular times
during days or portions of days. The FW Act does not contemplate any of the relevant
events in the pre-vote regime occurring at particular times.
The Deputy President’s reliance on the adverb “immediately” in s 180(4) failed to
grapple with the nature of the voting process under s 181, which might extend over
more than one day and be protracted.
The purpose of the phrase “ending immediately before the start of the voting process”
was to make clear that counting started by reference to the day when the voting
process commences, not on the days when employees actually voted or when the
voting process concluded.
The Unions’ proposed construction of s 180(4) was consistent with its purpose and
object of ensuring employees are provided with seven clear days of the time, place and
method of the vote. The Explanatory Memorandum for the Fair Work Bill 2008
illuminated this purpose insofar as it referred in paragraph 733 to the “entire seven day
access period” and in paragraph 735 to the notification of the vote occurring “at least
seven days prior to the vote for the agreement”.
[18] The Unions also submitted that the Decision was in this respect contrary to the Full
Bench decision in CFMEU v Australian Mining Supplies Company Pty Ltd21 as well as Hydro
Electric Corporation and McKechnie Iron Foundry.
[19] CBI submitted that the reasoning and conclusion of the Deputy President was correct
and, in response to the Unions’ submissions, submitted:
The authorities did not support the backward-looking application of s 36 of the AI
Act.
The natural and ordinary meaning of the phrase “ending immediately before the start
of the voting process” set the reference point for the access period at the time when the
voting process begins, and the common law presumption about the indivisibility of
days, and any application of s 36 of the AI Act, had to yield to the apparent contrary
intention.
The different language used in other FW Act provisions providing for time periods
supported the approach taken by the Deputy President, and the distinction in language
had to be given effect.
That a voting process might extend over a number of days was irrelevant to the proper
construction of s 180(4), since it did not affect the point in time upon which the voting
process commenced.
21 [2017] FWCFB 2236
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The use of the word “immediately” made clear that the reference point was the start of
the voting process itself and not the start of the day on which the voting process
occurs.
A literal and contextual construction of s 180(4) required that the access period be
calculated as 7 x 24 hour periods counted back from the time the voting process
actually commenced.
Consideration
[20] We consider it is appropriate to grant permission to appeal with respect to grounds 1-3
of the Unions’ appeal. Hydro Electric Corporation, McKechnie Iron Foundry and the
Decision are divided first instance authorities on a question of construction of the FW Act that
is of general significance to the Commission’s agreement approval function under Pt 2-4 Div
4 of the FW Act.
[21] The starting point for the consideration of these appeal grounds is the common law
presumption that, in respect of prescribed time periods and time limitations, a “day” means an
indivisible calendar day. In Prowse v McIntyre22 Windeyer J said:
“For most purposes of the law time is measured by days; and events are assigned in
time to calendar days. Lawyers naturally adopt the spatial concept of time of ordinary
thought and language. It follows that time is measured in periods; and any period or
space of time, a year, a day, an hour, is, in theory at all events, divisible. But, as a day
is for law the unit of measure in most cases, it was early said that the law was not
concerned with divisions of a day…
A day, the period of the earth's axial rotation, is the natural and fundamental division
of time. A day for legal purposes is the mean solar day, a period of twenty-four hours.
These hours are reckoned from midnight to midnight, the instant of midnight being
both the end of one day and the beginning of the next, for there are no rests in time,
and as each instant comes it goes. A day has a significance for law in two ways: first,
as a division of time, that is the space of time within which an event happened or is to
happen, or something was done or is to be done: secondly, as a measure of the passage
of time, a unit in a period of time.”23
[22] Therefore when a time period of a specified number of days is expressed to run from
an event that occurs on a particular day, it will not ordinarily be read as being constituted by
24-hour periods counted from the precise time of the event, but rather as constituted by whole
calendar days. In that circumstance, the question then arises as to whether the day upon which
the events occurs is to be counted for the purpose of the calculation of the time period, as
Windeyer J went on to explain in Prowse v McIntyre:
“As has been said, the law in reckoning time by days ordinarily takes no account of
fractions of a day. The result is that, whenever a period of days has to be computed
from an act or an event that occurs within the space of a day, a decision must be made
whether to start the reckoning from the beginning or the end of that day. Much the
22 (1961) 111 CLR 264
23 Ibid at 277-278
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same question arises when a period is to be calculated up to the time when an act is
done or an event happens. It may be that the mediaeval fondness for the period of a
year and a day was in some way related to a desire to ensure the lapse of a full year. In
the form the question is ordinarily now put it is whether the day of commencement of a
period (or the day of its completion) is to be included or excluded in counting a given
number of days. As to that, there is no universal rule. Where it is not prescribed by
statute … the answer depends upon context and circumstances…”24
[23] Section 36(1) of the AI Act (as it was at 25 June 2009) supplies a statutory answer to
the question identified by Windeyer J. The rationale for s 36(1) was explained in Pearce and
Geddes’ Statutory Interpretation in Australia as follows:
“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 backdating 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…”25
[24] Following the above passage was a reference to the judgment of Barwick CJ in
Australian Beauty Aids Pty Ltd v Commissioner of Taxation,26 in which his Honour
considered the meaning of the expression “…whereupon the shares so specified shall from
the date of delivery of such notice become ordinary shares…” in a company’s articles.
Barwick CJ said that an interpretation by which the notice took operation “from the moment
of its delivery” was subject to “great practical difficulties”, one of which was that “This time
in the ordinary course would be difficult to establish with certainty”,27 and rejected it. It is
necessary to observe at the outset that the same practical difficulty would arise in relation to
an interpretation of s 180(4) which had the access period ending immediately before the
actual commencement time of the voting process. What constitutes the “voting process” in s
180(4) is not actually defined, and as s 181(3) makes clear, no particular voting method is
prescribed. In the case of a ballot, for example, there is room for doubt as to whether the
voting process could be said to have started when the ballot papers are printed, or when they
are distributed to employees, or when they may first be filled in, or when the first employee
actually votes. There may be other possibilities. Other voting methods may involve more
compressed time periods, but even with a “show of hands”, there may be an issue as to
whether the process starts when employees are assembled for the vote, or when the motion is
put, or when the hands actually go up. In any case, absent the keeping of a precise record of
events, it may be difficult at the approval stage for an agreement to ascertain precisely when
the voting process commenced in order to establish compliance with s 180(3).
[25] The facts of the current case illustrate this practical difficulty. We have earlier
summarised Ms De Young’s evidence. She said that “the vote” commenced “at or around
11.00am” on 29 June 2017 and she did not state what she regarded as the start of the voting
process. This lack of precision is hardly surprising in the circumstances but merely indicative
24 Ibid at 280
25 Pearce and Geddes, Statutory Interpretation in Australia, 8th ed. at [6.46]; see also 7th ed. (current when s 36(1) in its
previous form remained in operation) at [6.47].
26 (1965) 113 CLR 662
27 Ibid at 669
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of the problem associated with an interpretation of s 180(4) that requires the identification of
the time immediately before the start of the voting process. It must also be remembered that
the significance of the access period is that it operates backwards so as to prescribe the time
by which notice of the time, place and method of the vote is to be given to employees. That is,
the time when the access period ends, which may inherently be difficult to identify if it is the
time immediately before the precise time at which the voting process starts, must be
ascertainable prior to the start of the access period more than seven days beforehand. This
simply adds to the practical difficulty.
[26] This difficulty is not resolved by the cross-reference in s 180(4) to s 181(1) (“the start
of the voting process referred to in subsection 181(1)”, underlining added). Section 181(1)
only refers to a “request” by the employer that relevant employees vote to approve the
agreement, without saying anything about the nature of the voting process. This suggests that
the voting process starts when the employer requests that it take place. However what in
practical terms constitutes such a request is obscure, although presumably a request is implicit
when the employer begins the conduct of a voting process intended to seek approval of a
proposed agreement that had earlier been notified pursuant to s 180(3). But again the
difficulty remains in identifying the actual time this occurred.
[27] This difficulty would be resolved if s 36(1) of the AI Act applies to s 180(4). On this
approach, the access period would end at the beginning of the day upon which the voting
process commences and would avoid any need to identify the precise time at which that
process will start in order to calculate when the access period begins. As earlier stated, the
Deputy President concluded that s 36(1) of the AI Act was incapable of application to s
180(4) of the FW Act because it could only operate forward in time and not backwards. We
respectfully disagree. There is no reason why, on the ordinary meaning of the language used,
that the words “…any period of time, dating from a given day, act or event, is prescribed or
allowed for any purpose…” could not be read as referring to a period of time calculated
backwards from the day, act or event as well as forwards. The Deputy President, in paragraph
[21] of the Decision as earlier set out, concluded that the “purpose” referred to in the
provision must be the “active” purpose he identifies. This conclusion is not based on the text
of the provision. As expressly stated, the prescription of a time period may be for any
purpose. This makes it clear that no category of time period is intended to be excluded from
the operation of s 36(1) by reference to its purpose. The approach taken by the Deputy
President leads to the opposite result of excluding some time periods from the reach of s
36(1).
[28] Section 36(1) was held to be applicable to a prescribed time period operating
backwards from an identified event by the Federal Court (Bennett J) in Mordechai v Minister
for Immigration and Citizenship.28 For relevant purposes, Mordechai was concerned with
provisions that required the Administrative Appeals Tribunal not to have regard to
information or documents unless they were “… given to the Minister at least 2 business days
before the Tribunal holds a hearing (other than a directions hearing) in relation to the
decision under review”.29 The relevant document in question was served on Friday 14 January
2011, in circumstances where the relevant hearing occurred on Tuesday 18 January 2011. The
Court said:
28 [2011] FCA 986, 196 FCR 509
29 Ibid at [27]-[28]
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“[40] The Minister also submits that, in any event, service on 14 January 2011 does not
comply with the requirement for service “at least 2 business days before” the Tribunal
hearing...
[41] It is to be borne in mind that the hearing commenced on the morning
of Tuesday 18 January 2011. Accordingly, the Minister contends that the mother’s
statement would need to have been served on Thursday 13 January 2011 to comply
with ss 500(6H) and (6J).
[42] The Minister relies on s 36(1) of the Acts Interpretation Act 1901 (Cth), which
provides:
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.
[43] The Minister also relies on the judgment of Gibbs J in Forster v Jododex Aust Pty
Ltd [1972] HCA 61; (1972) 127 CLR 421, in which his Honour concluded, having
reviewed the authorities, that:
Whatever doubts may have originally existed, and however nicely balanced the
arguments may have originally been, it is now... “better... to adhere to settled
rules”. Where an instrument prescribes that a period of time must elapse
between one event and another, the words “at least” or “not less than”
should, unless the context or the subject matter reveals a contrary intention, be
regarded as indicating that a clear or full period of time must expire between
the two events...
Justices Walsh (at 428-429), Stephen (at 448) and Mason (at 451-452) all reached
similar conclusions on this aspect of Forster.
[44] As the date of the hearing, 18 January 2011, is the date from which compliance is
measured, it is thereby not included as a “business day” pursuant to s 36(1) of the Acts
Interpretation Act. The requirement for two clear business days before Tuesday 18
January 2011 means that service had to be effected no later than Thursday 13 January
2011. It follows that the minimum time was not complied with. The Tribunal was thus
obliged pursuant to s 500(6H) to reject oral evidence concerning the mother’s
statement. Pursuant to s 500(6J), the Tribunal was also obliged to reject the mother’s
statement. There was no error of law in the Tribunal’s rejection of the mother’s
statement under these provisions.”
[29] Section 36(1) was also given a backwards operation by the Supreme Court of
Queensland (Henry J) in Overflow FNQ Pty Ltd (in liquidation); Kelly & Ors v Austwide
Consumer Products Pty Ltd.30 That matter relevantly concerned whether a security interest in
a company had been registered “six months before the critical time” such as to make it
covered by s 588FL(2) of the Corporations Act 2001 (Cth). The “critical time” was defined in
s 588FL(7), and it is sufficient to say that it meant the day on which a specified event
30 [2017] QSC 76
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occurred. The registration of the security interest took place at 5.18pm (Canberra time) or
4.18pm (Brisbane time) on 10 November 2015 and the critical time was 8.00 am on 10 May
2016.31 The Court described the issue as being “addressed by statutory provisions which, in
summary, take the approach of counting one of the days bookending a period but not both”.32
The Court first referred in this respect to s 105 of the Corporations Act, which provided:
105 Calculation of time
Without limiting subsection 36(1) of the Acts Interpretation Act 1901, in calculating
how many days a particular day, act or event is before or after another day, act or
event, the first-mentioned day, or the day of the first-mentioned act or event, is to be
counted but not the other day, or the day of the other act or event.
[30] It may be noted that the above provision is expressly stated to apply both backward
and forward from a day, act or event. The Court then considered s 36(1) of the AI Act and
said that in the present context it “would not give a materially different result than the
application of s 105”.33 The Court then concluded (footnote omitted):
“[15] Therefore, to ascertain the point in time six months before the critical time, the
day of the critical time, 10 May 2016, should not be included in the count six months
backwards in time. That six month count is therefore back to and inclusive of all of 10
November 2015. The point in time “six months before the critical time” was therefore
the stroke of midnight on the night of the ninth into the tenth of November 2015. To
avoid the vesting consequences of s 588FL the respondent needed to have registered its
interest by that time. Registration at any time after 10 November began would have
been “after ... six months before the critical time”. Here the registration time was 4.18
pm on 10 November 2015, which was well after the beginning of that day and
therefore after six months before the critical time.”
[31] The Court noted that neither party had argued that the time period was to be reckoned
by reference to specific times of day, but found in any event that this would not have made a
difference to the outcome.34
[32] We see no proper basis to take a different approach to that in Mordechai or Overflow
FNQ. Accordingly the potential application of s 36(1) of the AI Act to s 180(4) of the FW Act
requires consideration.
[33] Is s 180(4) a provision of the type referred to in s 36(1) - that is, does it prescribe a
period of time “dating from a given day, act or event”? We consider that it is because it uses
the event constituted by the start of the voting process as the reference point from which the
period is calculated. The critical consideration then becomes whether the use of the words
“immediately before the start of the voting process” (underlining added) in s 180(4) indicates
an intention contrary to the application of s 36(1), as the Deputy President found and as CBI
contended in its appeal submissions. It may be accepted that these words add an element of
ambiguity to the provision and, on one view, demonstrate an intention that the seven days of
31 Ibid at [7]-[8]
32 Ibid at [12]
33 Ibid at [14]
34 Ibid at [21]
[2018] FWCFB 2732
13
the access period be counted back from a particular point in time within a day (as the Deputy
President found), so that s 36(1) is not applicable. However that is not the view we prefer, for
a number of reasons.
[34] First, that approach would lead to the practical difficulty we have earlier identified of
having to ascertain a point in time within a particular day that is inherently difficult to
establish with certainty. It may be noted that the Deputy President appreciated this problem
when he said that he had some reservations as to whether a “day” in s 180(4) meant a
complete 24 hour period, since if it carried this meaning “the satisfaction of the requirements
in s.180 would come down to matters of hours and minutes”.35 We agree with the Deputy
President that this is unlikely to have been intended. The application of s 36(1) of the AI Act
removes this problem and allows for a straightforward and certain means to ascertain the
access period.
[35] Second, it remains the case that the access period is expressly described as a “7-day
period”. In accordance with the common law presumption, this is prima facie to be read as
meaning a period consisting of seven calendar days. The use of the words “immediately
before” does not displace this presumption, since the provision can sensibly be read as
referring to that period of seven calendar days which ends immediately before the start of the
voting process. The word “immediately” on this reading of s 180(4) has the work of fixing the
end of the access period as being at the end of the calendar day which first precedes the day
on which the voting process starts.
[36] Third, the fact that s 180(4) of the FW Act operates only by reference to an event,
being the start of the voting process, and not the day on which the event occurs, does not
indicate an intention to displace the operation of s 36(1) of the AI Act, since s 36(1) is in
terms expressed to apply to time periods operating from a given act or event as well as a given
day.
[37] Fourth, there is contextual support for the proposition that s 180(4) is to be read as if s
36(1) of the AI Act applies. Section 181(2) requires that the “request” for employees to vote
on an agreement not be made until at least 21 days after the day on which the last notice of
employee representational rights under s 173(1) is given. It is apparent, and the Deputy
President determined, that the calculation of the time period in s 181(2) would exclude the
day upon which the last notice was given so that the 21 days would commence to run from the
beginning of the following day. That would effectively also exclude the day upon which the
request for the vote pursuant to s 181(1) was made, meaning that a clear 21 calendar day
period is required. That however begs the question as to whether the legislature intended for
the seven-day access period to be counted differently and, if so, what the rationale for this
was.
[38] The Explanatory Memorandum for the Fair Work Bill is of some assistance in this
respect. In respect of s 180(4), it states (underlining added):
“736. Subclause 180(4) defines the access period as the period of seven days ending
immediately before the start of the voting for the proposed agreement (see
subclause 181(1)).
35 Decision at [30]
[2018] FWCFB 2732
14
737. The access period can run concurrently with the 21-day period referred to in
subclause 181(2), so that the shortest period between the day on which an
employer gives the last notice of employee representational rights to its
employees and the day that the employer requests the employees to vote on the
agreement is 21 days.”
[39] Paragraph 737 confirms that the 21-day period required by s 181(2) is, as discussed, a
period of 21 clear calendar days that excludes, at the beginning, the day on which the last
notice of employee representational rights is given and, at the end, the day on which the
request for a vote on the agreement is made. Importantly, the paragraph also states that the
access period can run concurrently with the 21-day period, which strongly suggests that the
seven-day access period also consists of a period of clear calendar days and is inconsistent
with the construction of s 180(4) preferred by the Deputy President. Paragraphs 733 and 735
of the Explanatory Memorandum, referred to in the CFMMEU’s submissions, also lend some
support to this conclusion.
[40] We also consider that regard should be had to ss 179 and 179A and subsections (4A)
and (4B) of s 180, which concern the provision to relevant employees of benefit disclosures
by organisations and by employers. These provisions were not part of the FW Act during the
access period for the Agreement in June 2017; they were introduced into the FW Act by the
Fair Work Amendment (Corrupting Benefits) Act 2017 and commenced operation on 11
September 2017. However, there is no basis to consider that these amendments were intended
to alter the pre-existing effect of s 180(4), and they provide some contextual guidance.
Section 179(3) requires organisations to which the section applies to give the required
disclosure to the employer covered by a proposed agreement “no later than the end of the
fourth day of the access period referred to in subsection 180(4)” in relation to the agreement.
Section 180(4A) then requires the employer to take all reasonable steps to provide the
disclosure to employees as soon as practicable, or to give employees access to it. In relation to
employer disclosures required under s 179A, s 180(4B) requires that employees be given a
copy of it or access to it “by the end of the fourth day of the access period” (s 180(4B)(a)).
Failure to comply with these provisions may expose the organisation or the employer to a
civil penalty.
[41] The expression “the end of the fourth day of the access period” is apt to refer to the
end of a calendar day, consistent with the application of the common law presumption as to
the meaning of a “day” and the application of s 36(1) of the FW Act to s 180(4). By contrast,
it is far less apt to refer to the end of a particular 24-hour period in accordance with the
approach preferred by the Deputy President. Moreover that approach would attach great
difficulty to compliance with and enforcement of these provisions. Organisations and
employers required to provide disclosures would have to do so at the end of a particular 24
hour period, the time of which could only be ascertained by reference to the commencement
of an event to occur 72 hours in the future (that is, immediately after the end of the access
period). The inherent difficulty in establishing the precise time for compliance, together with
the exposure to civil penalties which would follow from non-compliance, makes it unlikely
that this was the approach intended by the legislature.
[42] The above considerations cause us to conclude that s 180(4) is to be construed on the
basis that the access period consists of seven clear calendar days, and that by the application
of s 36(1) of the AI Act the access period ends at the end of the calendar day immediately
preceding the day on which the voting process for a proposed agreement commences. This
[2018] FWCFB 2732
15
conclusion is consistent with the long-standing position that was established by the decisions
in Hydro Electric Corporation and McKechnie Iron Foundry, with which decisions we agree.
[43] For completeness, we respectfully disagree with the alternative approach suggested by
the Deputy President in [30] of the Decision. This approach, which is based upon an
appreciation of the problem created by determining the end of the access period by reference
to “hours and minutes”, treats the access period as consisting of whole calendar days (in
accordance with the common law presumption), but includes the day of the vote. The basis of
this approach is not apparent. It is directly contrary to s 36(1) of the AI Act and, on any view,
would permit an access period which is actually less than seven days. This is directly contrary
to the text of the provision.
[44] In this case, there is no dispute that the voting process started at some time on 29 June
2017. The access period therefore ended at the end of 28 June 2017 and commenced at the
beginning of 22 June 2017. The employees were, on any view, not advised of the time and
place of the vote or the voting method until later in the morning of 22 June 2017, after the
access period had already commenced.
[45] CBI was required by s 180(3) of the FW Act to take all reasonable steps to provide the
requisite notification to the employees on 21 June 2017 or earlier. It was not suggested by
CBI that it had done anything else which would constitute the necessary reasonable steps. The
conclusion must therefore be that s 180(3) was not complied with, and as a result the
Commission could not be satisfied pursuant to s 186(2)(a) that the Agreement was genuinely
agreed to by the employees covered by it. CBI did not submit that this was a deficiency which
could be overcome by the provision of an undertaking pursuant to s 190, and it is clear that it
could not be. The Agreement was incapable of approval under the FW Act, and the Deputy
President erred in concluding otherwise. The Decision must therefore be quashed and the
application for approval of the Agreement dismissed.
[46] This conclusion makes it unnecessary for us to determine the other appeal grounds.
Orders
[47] We order as follows:
(1) Permission to appeal is granted.
(2) The appeal is upheld.
(3) The Decision ([2017] FWCA 6837) is quashed.
(4) The application for approval of the Agreement (AG2017/2750) is dismissed.
[2018] FWCFB 2732
16
VICE PRESIDENT
Appearances:
P. Boncardo of counsel on behalf of the Construction, Forestry, Maritime, Mining and Energy
Union and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing
Union and Allied Services Union of Australia and the Australian Manufacturing Workers’
Union and the Australian Workers’ Union.
A. Pollock of counsel for CBI Constructors Pty Ltd.
Hearing details:
2018.
Sydney:
22 March
Printed by authority of the Commonwealth Government Printer
PR607116
OF THE FAIR WORK MISSION THE
