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[2019] FWCFB 6430
General information, not legal advice.
Fair Work Commission (Full Bench)
2019-09-19
Original judgment source is linked above.
[2019] FWCFB 6430 Note: Refer to the Federal Court decision of 5 July 2019 for the result of this matter.
s.604 - Appeal of decision
Construction, Forestry, Maritime, Mining and Energy Union
[1] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) has, by a notice of appeal lodged on 9 August 2019, applied for permission to appeal and if granted, appeals against an interim order (Interim Order) made by Deputy President Mansini on 24 July 2019.[1] The Interim Order was varied on 2 August 2019 to remove the CFMMEU and others as parties bound by the order.[2]
[2] DP World Melbourne Limited (DP World), the first respondent, applied for an order under s.418 of the Fair Work Act 2009 (Act) on 23 July 2019.[3] The Interim Order is directed to stopping certain industrial action which in the application is alleged as having been organised by the CFMMEU and taken by certain employees of DP World. The Interim Order as made was binding on the CFMMEU, its officers, employees and delegates who are DP World employees. It continues to bind DP World employees who are, or are eligible to be, members of the CFMMEU employed at DP World's terminal at West Swanson Dock and covered by the DP World Melbourne Enterprise Agreement 2016[4] (Enterprise Agreement).
[3] At the time of publishing this decision, that application has been heard but has not yet been determined. The Interim Order was purportedly made because s.420(2) of the Act required the Commission to make it in the circumstances and upon the Deputy President being satisfied that it would not be contrary to the public interest to make the Interim Order.
[4] DP World operates a stevedoring enterprise at a terminal at West Swanson Dock, Port of Melbourne. Various of its employees engaged at the terminal are members, or are eligible to be members, of the CFMMEU (Relevant Employees). The Relevant Employees are covered by the Enterprise Agreement which has passed its nominal expiry date of 28 February 2019. They are engaged in crane or straddle operations and are responsible for loading and unloading shipping containers from ships berthed at the DP World's West Swanson Dock terminal.
[5] Since March 2019, the CFMMEU and DP World have been bargaining for a proposed enterprise agreement to replace the Enterprise Agreement. The CFMMEU is a bargaining representative for the proposed agreement. In furtherance of its bargaining claims, the CFMMEU notified and organised, and its members took, various forms of industrial action during March and April 2019, and from 21 June 2019. One form of industrial action taken by employees was a complete stoppage of work between 10 July 2019 and 14 July 2019.
[6] As we have already noted, on 23 July 2019, DP World lodged an application under s.418 of the Act seeking orders directed to the CFMMEU and the Relevant Employees, that certain industrial action in which the employees were said to be engaging stop and not be organised.[5] In its application DP World contended, inter alia, that:
• since the Relevant Employees had returned to work after 14 July 2019, there had been a material and unexplained reduction in productivity;[6]
• the reduction in productivity was explained by the only reasonable inference available, namely, that it was the result of a coordinated and collective effort by the Relevant Employees to work in a manner which is slower than that which is customary (described in the application as "the Go Slow");[7]
• the Go Slow is not action that is protected industrial action;[8] and
• the CFMMEU was organising the Go Slow through its officials, delegates and employees.[9]
[7] The application was lodged at approximately 4:35pm on 23 July 2019.[10] The Deputy President listed the application for hearing at 3:30pm on 24 July 2019.[11]
[8] Earlier on 24 July 2019, the CFMMEU, through its solicitors, had complained to solicitors for DP World that the application was vague and unparticularised and that DP World had not filed any statements or submissions in support of its application.[12] It also enquired whether DP World intended to file any additional material noting that the application was listed for hearing at 3:30pm that afternoon.[13] In response, solicitors for DP World advised that DP World intended to file two witness statements and an outline of submissions, which it would endeavour to file and serve as quickly as possible.[14] Between approximately 1:23pm and 2:14pm, solicitors for DP World served and filed statements of Mr Sean Jeffries and Mr Luke Gravell and an outline of submissions.[15]
[9] The hearing of the application began at 3:54pm on 24 July 2019.[16] Shortly after the hearing commenced, the CFMMEU applied for the hearing to be adjourned until 2:15pm on 25 July 2019.[17] In doing so the CFMMEU contended that:
it had not been in a position to obtain full instructions to enable it to prepare for a hearing and to cross examine witnesses to be called by DP World;
it had had inadequate opportunity to respond to DP World's materials served earlier that afternoon;
a direction should be made requiring the CFMMEU to file and serve any material on which it intends to rely by 11:00am on 25 July 2019; and
• this would still allow ample time for the Commission to hear and determine the application within the two day period.[18]
[10] DP World opposed the adjournment application.[19] Its submission in opposition included the following:
"We are 24 hours into the two day period and if as I suspect my friend's application foreshadows the intend (sic) to contest the factual material and we were to accept his timetable and to be back here at 2.15, there's every prospect that this matter wouldn't be dealt with within the two day timeframe, which would take us to 4.35 tomorrow. We need to hear from at least two witnesses, for then (sic) to be cross-examine (sic), plus anything that the MUA wishes to lead. So it is likely that adjournment to take us outside the timeframe in my submission."[20]
"I think the other question you asked my friend was about the interim order point. Now I think you are in section 422 (sic)[21] territory here, being unable to determine the application within the time period. You must within that period make an interim order. So within the period, if you're unable to determine in that period and in my submission 420 is activated by my friend's application, because you can be satisfied that at 2.15 tomorrow there is enough to be done that will not be concluded by 4.35. So even if my friend were right and your general power to issue interim orders were constrained by section 420, and I'm not making that concession, I think your power to make interim orders here continues to be open if it's appropriate and necessary to do so. But even if he were right, in my submission, you could proceed based on the facts as (indistinct). Unless my friend were to show up at 2.15 and consent to an order we're going to be in a position where you're unable to determine it by 4.35."[22]
[12] The Deputy President briefly adjourned to consider the CFMMEU's application[23] and on resuming, said:
"I'm minded to grant an adjournment to allow the union an opportunity to put on its case. But having regard to what's been said, and at this stage I am minded to grant interim orders because I'm not persuaded that I'm able to determine the matter within the 48 hour timeframe.
So having formed that view, I wish to hear from the parties about the following three things. Firstly, whether you say it's contrary to the public interest to make interim orders. Secondly, about the form of any interim orders, particularly in terms of the way the action is described. Thirdly, as I'm going to grant an adjournment with interim orders whether or not more time would be sought.
So subject to hearing from the parties about the public interest and the form of any orders, if interim orders are to be made, whether, indeed you'd like more time. So I'm happy if you want to address me about that now, or if you want to stand the matter down for a short period of time to consider those things."[24]
[13] Next there was an exchange between Counsel for the CFMMEU and the Deputy President as follows:
"MR WHITE: Can I raise another matter, and that is, prior to getting instruction in relation to the first question, we would be assisted by knowing your Honour's reasons for your conclusion, in respect of section 420(2).
THE DEPUTY PRESIDENT: Well, as I said, I'm not persuaded, as it currently stands, that to resume the hearing at 2.15 tomorrow would enable the matter to be heard, including at least two witnesses, and you may have a third or more, and determined by 4.35 pm tomorrow. So they're my reasons. I'm prepared to give you the procedural fairness you seek, hence why I foreshadow I would like to hear from you about the question of the public interest but, also, if you are to have an adjournment, whether, in fact, you want more time to enable you to put on your case.
[14] Thereafter the CFMMEU and DP World addressed the question whether it would be contrary to the public interest to make an interim order.[26] After a further short adjournment, the Deputy President announced her decision to make the Interim Order as follows:
"THE DEPUTY PRESIDENT: Thank you. Sorry, that took a little longer than I anticipated. As I foreshadowed earlier, having considered the union's request for an adjournment, on procedural fairness grounds, I am satisfied that it is appropriate to grant the union's request for an adjournment and, at the parties request, I confirm I am available to and will list the matter for hearing on 2 August, with the directions that have been agreed between the parties for the exchange of materials in advance.
However, in those circumstances, I am unable to determine the application within two days of it being made and, accordingly, pursuant to section 420 of the Act, I consider I am required to make an interim order.
However, in considering whether to make an interim order, I've taken the opportunity to consider the views and the submissions of the parties, in relation to whether making an interim order is contra to the public interest.
I acknowledge Mr White's four arguments, on behalf of the union, regarding the potential deterrence for a respondent to seek procedural fairness in a matter of this kind. The argument the Commission could not yet have formed a view about whether industrial action is happening as the application alleges. That the timing of the applicant's conduct and concerns of the effect of the interim orders which are proposed by the applicant, in relation to safety and industrial rights to take protected industrial action, in accordance with the protected action ballot order.
However, taking into account each of those matters, I'm not satisfied that, either separately or together, any is so great as to weigh as contrary to the public interest and, accordingly, I consider I'm mandated to issue an interim order, in accordance with the statutory provisions.
I do, however, propose, in issuing the order, to have regard to the union's concerns about the safety issue and the matter of taking protected industrial action and although it may not be necessary, strictly, when the Act is read together with the order, for clarity, I consider it appropriate to include those matters as express exclusion from the operation of the interim order.
Unless there's anything further, I will relist the matter for hearing on 2 August, with the directions, and interim orders will issue this evening, accordingly."[27]
[15] The Interim Order was issued later that evening.[28]
[16] The notice of appeal sets out 7 appeal grounds.
[17] Ground 1 alleges a denial of procedural fairness. The denial of procedural fairness is said to have arisen because of the failure by the Deputy President to adjourn the application until 2:15pm on 25 July 2019 and instead make the Interim Order on 24 July 2019. This, according to the CFMMEU, had a twofold consequence:
First, the CFMMEU was denied the opportunity to put its case in opposition to DP World's application within the two day period after it was made; and
Secondly, if, after starting to hear the application on 25 July 2019, the Commission was unable to determine the application within two days after it was made, the question whether making an interim order was contrary to the public interest would have been assessed on competing material. An assessment of the strength of DP World's case could have been made. Consequently, the failure to adjourn until 2:15pm on 25 July 2019 meant that the CFMMEU was unable to advance such material before the Interim Order was made, and so was denied the ability to put submissions about public interest by reference to that material.
[18] Ground 2 contends that the Deputy President erred in failing to attempt to determine the application within two days after it was made. The CFMMEU contends that as the Commission must, as far as practicable, determine an application within 2 days after the application is made, the jurisdiction to make an interim order arises only where the Commission is unable to determine the application within that period - not simply that it does not determine. It contends that the assessment that the Commission is unable to determine an application can only occur after it has gone as far as is practicable so to determine - and if it is unable to do so, only then is the power and obligation in s.420(2) enlivened.
[19] Ground 3 is concerned with the proper construction of the phrase "within 2 days after the application is made" in s.420(1) and consequently "within that period" in s.420(2). By this ground, the CFMMEU contends that the Deputy President erred in concluding that the period within which the application had, "as far as practicable" to be determined was 48 hours after the application had been made. Consequently, by misconstruing ss.420(1) and (2), the Deputy President thought that she had 7.5 fewer hours to determine the application. In essence, it is contended that by misconstruing the provisions, the Deputy President was neither empowered nor required to make the Interim Order.
[20] Grounds 4 and 5 are related. The essential point raised by these grounds is that the Deputy President erred in concluding that making the Interim Order was not contrary to the public interest. This, according to the CFMMEU, is because it is contrary to the public interest to make an order where the condition for making it - inability to determine the matter within the requisite period - arises substantially because of the conduct of DP World, specifically its failure to provide material in support of its application until shortly before the hearing was to commence.
[21] Ground 6 contends that the Deputy President erred by failing to provide adequate reasons for making the Interim Order.
[22] Ground 7 contends that the Deputy President erred in making an Order in the terms of the Interim Order where:
the Interim Order was not expressed in language that was clear, certain or unambiguous;
the Interim Order was susceptible to the interpretation that it extended beyond the alleged industrial action the subject of the s.418 application; and
if the Interim Order extended beyond the alleged industrial action the subject of the application, it was beyond the power of the Commission to make it.
[23] We consider that by appeal ground 3 of the notice of appeal, the CFMMEU raises an arguable case of appealable error as to the proper construction of ss.420(1) and (2) of the Act and consequently whether the Deputy President was empowered to make the Interim Order. There is no controversy that there remains utility in dealing with the appeal. The Interim Order (as varied) continues to operate and proceedings alleging, inter alia, a breach of the Interim Order have been commenced in the Federal Court of Australia. In the circumstances, we consider that it is in the public interest that permission to appeal be granted.
[24] It is convenient to begin our consideration of the appeal with ground 3 of the notice of appeal.
[25] The resolution of this ground of appeal turns in part on the proper construction of ss.420(1) and (2) of the Act. Section 418(1) of the Act provides:
"418 FWC must order that industrial action by employees or employers stop etc.
(1) If it appears to the FWC that industrial action by one or more employees or employers that is not, or would not be, protected industrial action:
the FWC must make an order that the industrial action stop, not occur or not be organised (as the case may be) for a period (the stop period) specified in the order.
(1) As far as practicable, the FWC must determine an application for an order under section 418 or 419 within 2 days after the application is made.
(2) If the FWC is unable to determine the application within that period, the FWC must, within that period, make an interim order that the industrial action to which the application relates stop, not occur or not be organised (as the case may be).
(3) However, the FWC must not make the interim order if the FWC is satisfied that it would be contrary to the public interest to do so.
(4) In making the interim order, the FWC does not have to specify the particular industrial action.
(5) An interim order continues in operation until the application is determined."
[27] The circumstances in which the duty or obligation in s.420(2) to make an interim order arises has been considered in McKewin and Ors v Lend Lease Project Management & Construction (Australia) Pty Ltd[29] (McKewin) and in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Fredon Industries Pty Ltd.[30] From these decisions and from the text of s.420, the following propositions may be discerned.
[28] First, it seems clear that a conclusion by the Commission that it is unable to determine an application within the two-day period specified in s.420(1) is a condition precedent for the making of an interim order under s.420(2). Absent such a conclusion, the Commission is under no duty, and has no power, to make an interim order.[31] Secondly, the requirements of procedural fairness apply to the making of an interim order under s.420(2), although depending on the circumstances the requirement to hear an affected party may be circumscribed by the time constraints imposed by ss.420(1) and (2).[32] Thirdly, a failure to list an application for orders under s.418 for final hearing expeditiously after an interim order has been made under s.420(2) may make it difficult to conclude that the Commission has complied with the obligation in s.420(1).[33] Fourthly, the effect of s.420(3) is that the Commission must, prior to making an interim order under s.420(2), give consideration to whether the making of the interim order would be contrary to the public interest. A failure to consider the public interest in this way may result in an interim order being made contrary to the mandatory requirement in s.420(3).[34]
[29] None of this is controversial but the resolution of this ground of appeal concerns the application of the first proposition. The parties are at odds on two issues:
whether s.420(2) raises a jurisdictional fact, the existence of which is a precondition to the exercise of power or the imposition of the duty to exercise power to make an interim order; and
the proper construction of the words "within 2 days after the application is made" in s.420(1) and consequently the words "within that period" in s.420(2).
[30] A Full Bench of the Commission in McKewin considered but ultimately found it unnecessary to decide the first issue, observing:
"[27] Section 418, when read together with s.420, is "a remedy that is clearly intended to be available at short notice to deal with unprotected industrial action". The obligation upon the Commission in s.420(1) to determine an application for orders under s.418 within two days so far as practicable underlines the legislature's intention that the Commission is to act quickly and effectively in relation to such industrial action in response to an application made by any person in the categories identified in s.418(2)(b). Section 420(2) "backstops" this position by requiring the making of an interim order in identified circumstances.
[28] With respect to s.420(2), it is clear that a conclusion by the Commission that it is unable to determine an application within the two day period specified in s.420(1) is a condition precedent for the making of an interim order. Absent such a conclusion, the Commission is under no duty, and has no power, to make an interim order. Counsel for Lend Lease in his submissions characterised the nature of the required conclusion as being one of a finding of jurisdictional fact, and we are inclined to think that this is correct. The alternate view might be that the conclusion that is required is in the nature of the formation of an opinion or the reaching of a state of satisfaction, but, as counsel for the appellants pointed out, there is no express language to this effect in s 420(2), in contrast to other provisions of the FW Act which use express language such as, for example, s.420(3) ("if the FWC is satisfied") and s.423(2) ("FWC must be satisfied").
[29] If the condition precedent to the making of an interim order under s.420(2) does indeed involve the determination of a question of jurisdictional fact, then that is not a matter of discretion. It is a question which "allow[s] for only one correct answer ... either yes or no". Therefore in an appeal under s.604 of the FW Act from a finding of jurisdictional fact, the Full Bench must be concerned with whether the decision-maker at first instance reached the right conclusion as to the existence or otherwise of the jurisdictional fact, not simply with whether the challenged finding was reasonably open. Additionally, where the primary facts are not in dispute or have been determined by the first instance decision-maker, the Full Bench in such an appeal will apply the principle stated in Warren v Coombes, namely that it is in as good a position as the decision-maker to decide on the proper inference to be drawn from those facts.
[30] On the alternate possible characterisation of s.420(2) as requiring the formation of an opinion or the reaching of a state of satisfaction as to the Commission's capacity to determine the application within the two day time period, it would be necessary for an appellant to demonstrate error of the House v The King type in order for a Full Bench to overturn a member's finding at first instance about this matter."[35] [Endnotes omitted]
[31] Like the Full Bench in McKewin, we also do not need to decide that issue, because it seems clear enough that the Deputy President concluded that she could not determine the application within a period of 48 hours after the application was made (that is by 4:35pm on 25 July 2019).[36] In so doing, the Deputy President misconstrued the requirements in ss.420(1) and (2). Ultimately, the Deputy President's observation - when later announcing her decision that it was not contrary to the public interest to make the Interim Order (set out at [14] above) - that she was "unable to determine the application within two days of it being made" was clearly based upon her reasoning that she was unable to determine the application by 4:35pm on 25 July 2019.[37] That reasoning was responsive to a request by Counsel for the CFMMEU that the Deputy President provide "reasons for your conclusion, in respect of section 420(2)."
[32] Whether the Commission is unable to determine an application under, relevantly, s.418 within 48 hours is not the question posed by s.420(2). The failure to reach the correct conclusion means in the circumstances of this case that the Deputy President was neither obliged nor empowered to make the Interim Order. This is so whether the conclusion required is one of jurisdictional fact or merely of satisfaction. The reasons for our conclusion follow below.
[33] The interpretation of a statutory provision requires reading it consistently with the intended purpose or objects of the statute as disclosed by the text by reference to the language of the instrument viewed as a whole and begins with an examination of the text of the statute having regard to its context and purpose.[38] As Dixon CJ in Commissioner for Railways (NSW) v Agalianos[39] observed:
"...the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed."[40]
[34] Section 15AA of the Acts Interpretation Act 1901[41] (AI Act) also makes it clear that in interpreting a statute, regard must be had to the purpose or object underlying the statute (whether that purpose or object is expressly stated in the statute or not) and that a construction that would promote its underlying purpose or object is to be preferred to a construction that would not promote that purpose or object.
[35] Sections 418 and 420 of the Act are part of a scheme regulating industrial action found in Part 3-3 of the Act. A purpose of these provisions is to give effect to the object in s.3, through paragraph (f). Industrial action by employees can have immediate and significant economic and reputational consequences for the employer at which the industrial action is directed, for third parties and for employees. The bargaining regime established by the Act recognises that industrial action, known as protected industrial action,[42] organised and taken for the purposes of supporting and advancing claims made during enterprise bargaining, is a legitimate form of pressure that employees may apply to their employer. It obtains immunity from some of the consequences that would usually flow from organising and participating in industrial action.[43] Save in some limited circumstances, protected industrial action cannot be stopped or terminated by order of the Commission.[44]
[36] Industrial action that is not protected is amenable to a stop order under s.418 of the Act and as seems plain from the text of s.420(1), an application for a stop order is as far as practicable, to be dealt with within 2 days[45] and otherwise expeditiously. That the Commission is required to act quickly is unsurprising given the potential damage that industrial action can cause. The statutory injunction in s.420(1) to determine an application, as far as practicable, within two days after it is made underscores that such applications will necessarily be conducted quickly and the opportunity to present a case will be limited, given the circumstances. The legislative scheme contemplates that those who may be organising or engaging in unprotected industrial action or threatening to do so might need to be ready at short notice to respond to an application that the impugned conduct stop or not occur.[46] But the need for expedition is no reason to read the requirement to determine an application within 2 days as meaning 48 hours rather than 2 indivisible calendar days.
[37] Section 420(1) of the Act is not the only provision which requires time to be reckoned by reference to a particular day, act or event. For example, ss.366(1) and 394(2), require that an application (for the Commission to deal with a general protections dispute involving a dismissal or an unfair dismissal application) be lodged "within 21 days after the dismissal took effect". Section 173(3) requires an employer to give to employees a notice of employee representational rights "as soon as practicable, and not later than 14 days, after the notification time for the agreement." Section 181(2) requires that an employer not request employees to approve an enterprise agreement "until at least 21 days after" the last notice of employee representational rights is given. Section 185(3)(a) requires that an application for the approval of an enterprise agreement must be made "within 14 days after the agreement is made".
[38] Part 3-3 of the Act in which s.420 is found contains other provisions which require an act to be done within a specified period. Subsections 424(3) and (4) require the Commission to determine an application to suspend or terminate protected industrial action which is alleged to be having or threatening to have a particular deleterious effect, "within 5 days after it is made" and if the Commission is unable to determine the application within that period, it must make an interim order suspending the protected industrial action to which the application relates until the application is determined.
[39] Division 8 of Part 3-3 of the Act deals with protected action ballots. Section 441(1) provides that the Commission must, as far as practicable, determine an application for a protected action ballot order (PABO) "within 2 working days after the application is made". "Working days" is defined in s.12 as "a day that is not a Saturday, a Sunday or a public holiday." By s.441(2), the Commission must not determine the application unless it is satisfied that each applicant has complied with s.440. That section provides that "[W]ithin 24 hours after making an application for a protected action ballot order" the applicant must give a copy of the application to the employer of the employees who are to be balloted.
[40] Pursuant to ss.430(1) and (2), a bargaining representative is to give written notice to the employer that employees will engage in protected industrial action which is to be given at least "3 working days" before the industrial action commences.
[41] The scheme established by Part 3-3 of the Act shows that time for the doing of an act is to be reckoned by different units of measurement ("days", "working days" and "hours") depending on the nature of the act that is to be undertaken. This suggests that "days" in the Act means indivisible calendar days, "working days" are as defined and "hours" means a unit of 60 minutes. Thus although a day is a period of 24 hours, time measured by these units in the different provisions of the Act is not reckoned in the same way.
[42] It is convenient to observe that a starting point to the construction of the phrase "within 2 days after the application is made" found in s.420(1) is the common law presumption that, in respect of prescribed time periods and time limitations, a "day" means an indivisible calendar day. The position at common law was recently considered by a Full Bench of the Commission in Construction, Forestry, Maritime, Mining and Energy Union and Ors v CBI Constructors Pty Ltd.[47] In that case, the Full Bench was considering the reckoning of time for the purposes of determining when the access period in s.180(4) ended and observed:
"[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 McIntyre 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."
[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 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..."
[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...""[48] [Endnotes omitted]
[43] Section 36(1) of the AI Act (as in force on 25 June 2009) provided:
(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."
[44] Section 36(1) operates upon the Act except so far as the contrary intention appears.[49]
[45] As should be apparent from the analysis of the various provisions of the Act in which time is to be reckoned, the legislature has been very clear to use "days", "working days" and "hours" for the purposes of determining the time within which certain acts must be undertaken. The juxtaposition of s.441(1) with its requirement that a protected action ballot order application be determined as far as practicable "within 2 working days after the application is made" with s.440 requiring service of the application within "24 hours after making an application" is both telling and indicative of a legislative intention that a "day" means an indivisible calendar day and that when under the Act time is to be reckoned by "hours" rather than by "days", "hours" is stipulated.
[46] We do not discern a contrary intention so as to displace the application of s.36(1) of the AI Act upon s.420(1) of the Act. Indeed, the deliberate and separate use of "days" and "hours" confirms that s.36(1) of the AI Act has work to do.
[47] Contrary to the submission of DP World, we also consider that the legislative history of s.420(1) of the Act tells against a construction that time is to be reckoned by hours rather than as set out in s.36(1) of the AI Act. The legislative predecessor to s.420(1) was s.496(5) of the Workplace Relations Act 1996 (WR Act) which provided:
"(5) As far as practicable, the commission must hear and determine an application for an order under subsection (1) or (2) within 48 hours after the application is made."
[48] We do not accept that the shift from "within 48 hours" to "within 2 days" is an expression of the same idea using a different form of words or a clearer style, so as to engage with s.15AC of the AI Act. It is an alteration of substance. It is noteworthy that the predecessor to s.440 of the Act, s.454 of the WR Act, also provided that a copy of the application (for a PABO) must be given to the nominated person "within 24 hours after" application is made. Plainly, the legislature did not intend to substitute 48 hours with 2 days in s.420(1) merely to express the same idea using a different form of words, otherwise there is no evident reason why it would not also have replaced "24 hours" with 1 day in s.440. These provisions as already noted are found in the same part of the Act and deal with the same general subject matter - industrial action.
[49] It follows from the above, the requirement in s.420(1) that as far as practicable, the Commission must determine an application for an order under ss.418 or 419 within 2 days after the application is made was, in the instant case, a requirement that as far as practicable the Commission determine DP World's application by midnight on 25 July 2019, the application having been made on 23 July 2019. This conclusion is also consistent with the observations made by the Full Court of the Federal Court in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Abigroup Contractors Pty Ltd.[50]
[50] The Deputy President was required, as far as practicable, to determine DP World's application by midnight on 25 July 2019. As a precondition to the making of the Interim Order under s.420(2), the Deputy President was required, within the 2 day period, to reach a conclusion that she is unable to determine the application within the period specified in s.420(1). As we have already noted, absent such a conclusion, the Commission is under no duty, and has no power, to make an interim order.
[51] The Deputy President did not conclude that she was unable to determine the matter by midnight on 25 July 2019. Instead, as is clear from the transcript of the proceedings, the Deputy President concluded on 24 July 2019 that she was unable to determine the application "by 4.35 pm tomorrow".[51] On the face of the transcript of the proceedings, it is plain that the Deputy President considered that she was required, as far as practicable, to determine the application within 48 hours after the application was made. In fairness, it appears that the Deputy President was led into the erroneous assumption by the submissions made by DP World.[52] Furthermore, the Deputy President was also not assisted by the CFMMEU, which could have but did not disabuse her of the erroneous assumption made. That this was so was obvious from reasons for her conclusion given at the request of the CFMMEU.[53] It must be said that we find the silence by the CFMMEU most unsatisfactory. At this point, no order had been made and the Deputy President was yet to consider the public interest question. The Deputy President had only decided that s.420(2) had been engaged.
[52] Nevertheless, it is apparent from the transcript of the proceedings that the Deputy President's erroneous assumption infected her ultimate conclusion that s.420(2) had been engaged and so too, her decision to make the Interim Order.[54] The Deputy President erred in her construction of s.420(1) and consequently of s.420(2). Although in some cases, a finding that an application for an order under ss.418 or 419 is unable to be determined within 48 hours after the application is made might not make any practical difference, for example, an application that is made at 11:50pm on a particular day, we consider that in this case, the erroneous conclusion is material.
[53] We do not accept, as DP World has contended, that there was no real possibility of obtaining any different outcome if the Deputy President had considered whether she could determine the matter by midnight on 25 July 2019 instead of by 4:35pm that day. On the material available, it is not at all clear that the Deputy President was unable to determine the matter by midnight on 25 July 2019. All that we know is that the Deputy President had a matter listed in the afternoon of 25 July 2019 which she was prepared to work around.[55] The Deputy President made her assessment by reference to the number of witnesses[56] that were to be called and cross examined and reasoned that she could not hear and determine the application within the period commencing at 2:15pm on 25 July 2019, the time to which the CFMMEU sought an adjournment, and 4:35pm on that day.[57]
[54] There is nothing on the face of the record or in the material in the Appeal Book which suggests that the Deputy President turned her mind to whether she was unable to determine the matter by midnight on 25 July 2019. There is also nothing in that material which would suggest that the Deputy President was unable to do so. In those circumstances, it cannot be said that a different outcome might not have been obtained. The application could have been heard and determined to finality and the CFMMEU could have succeeded in part or in whole in resisting the making of any order under s.418. It is to be remembered that the statutory injunction in s.420(1) means that, as far as practicable, an application be determined within 2 days after it is made. But this requires only a decision whether an order be made within that period. In the circumstances of an expedited contested hearing, a decision without reasons may be delivered. Reasons can be given at a later date.
[55] In the circumstances, given the erroneous construction as to the period of time within which the application had to be determined and upon which the Deputy President proceeded to make the Interim Order, the Deputy President was neither required nor empowered to make it. Ground 3 of the notice of appeal is therefore upheld. It follows that both the Interim Order and the decision to make it should be quashed.
[56] It is uncontroversial that on a rehearing we are not in a position to make an interim order, even if we were so minded, since the time within which such an order must be made has passed.
[57] Given our conclusion, it is unnecessary to consider the other appeal grounds.
[58] We order as follows
Permission to appeal is granted;
The appeal is upheld on the basis of ground 3 of the notice of appeal;
The decision recorded in the transcript of proceedings on 24 July 2019 purporting to make an interim order under s.420(2) of the Act is quashed; and
The Interim Order as made on 24 July 2019 (PR710679), and to the extent necessary as varied on 2 August 2019 (PR710992), is quashed.
E White of Counsel and JE Hartley of Counsel for the CFMMEU.
M Follett of Counsel for DP World Melbourne Limited.
[15] Ibid at Tab 16 at p.108; Tab 17 at p.152; Tab 18 at p.193 and Tab 19 at p.242
[22] Appeal Book at Tab 10, p.44 at PN82
[31] McKewin v Lend Lease Project Management & Construction (Australia) Pty Ltd [2013] FWCFB 2568; (2013) 233 IR 252 at [28]; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Fredon Industries Pty Ltd [2016] FWCFB 2744 at [13]
[32] Ibid McKewin at [37]-[38]; Fredon at [13]
[33] Ibid McKewin at [41]; Fredon at [13]; See also Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Abigroup Contractors Pty Ltd [2013] FWCFB 453, (2013) 228 IR 270 at [30]
[34] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Fredon Industries Pty Ltd [2016] FWCFB 2744 at [14]
[35] McKewin v Lend Lease Project Management & Construction (Australia) Pty Ltd [2013] FWCFB 2568; (2013) 233 IR 252 at [27]- [30]
[36] Appeal Book at p.45 at PN88-PN89; PN113
[38] See Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47]; SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) ALR 405 at [14]
[41] As in force on 25 June 2009: See s.40A of the Fair Work Act 2009 (Cth)
[42] Fair Work Act 2009 (Cth), s.408
[46] See also Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Abigroup Contractors Pty Ltd (2013) 288 IR 270 at [30]
[49] Acts Interpretation Act 1901, s.2(1) (as in force on 25 June 2009)
[50] [2013] FCAFC 148 per Buchanan J at [11]-[12]; per Katzmann and Rangiah JJ at [128]
[51] Appeal Book at Tab 10, p.47 at PN113
[54] Ibid at pp.45, 47 and 59 at PN88-PN90; PN112-PN113; PN212; PN215
Printed by authority of the Commonwealth Government Printer
Construction, Forestry, Maritime, Mining and Energy Union
DP World Melbourne Limited and Others [2019] FWCFB 6430
(2013) 233 IR 252
(2013) 228 IR 270
(1998) 194 CLR 355
(2009) 239 CLR 27
(1955) 92 CLR 390
(2013) 288 IR 270