21 days is exactly, er ... 22 days! So agreement not approved


21 days is exactly, er ... 22 days! So agreement not approved

When does 21 mean 22? When FWA and the Fair Work Act decide it does.


Get unlimited access to all of our content.

When does 21 mean 22? When FWA and the Fair Work Act decide it does.
This has become clear after a company failed to have an enterprise agreement approved by FWA after it ruled the vote to accept it by the employees had been held a day too early and the FWA decided that a mandatory rule applied and could not be varied.
Lofa Pty Ltd gave last notice of employee representation rights on Thursday, 27 August and then held a meeting to ask the employees to approve the agreement three weeks later on Thursday, 17 September.
However s181 of the Fair Work Act 2009 says:
(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.
Senior Deputy President Peter Richards raised the issue of whether the 21 days had passed after receiving the application for approval. Lofa was invited to make submissions on the matter.
What does 21 days really mean?
In its written submission Lofa said:
‘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?
What is a day?
Lofa asked:
‘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 24 × 60 × 60 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, 24 × 60 × 60 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.)’
Common usage and pedantry
Lofa explained:
‘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 (24 × 60 × 60 second blocks) plus extra time (4 to 8 hours) passed after the advices were originally given.’
SDP Richards said the submission ‘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?’
Interpretations Act
He said s36(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.’ [his emphasis]
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.
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?
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.’
Each day must be a full day
SDP Richards continued:
‘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.
In reckoning the statute in this way, each day that follows, therefore, must be taken to be a full day.
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).
A conclusion of this kind would be inconsistent with the Acts Interpretation Act 1901.’
Commencement of the 22nd day
SDP Richards added:
‘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.
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.’
SDP Richards said there is no indication in the Fair Work 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.
Can’t construe more liberally
‘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,’ he said.
‘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.’
‘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.’
Post details