Association of Professional Engineers, Scientists and Managers, Australia, The

Australian Municipal, Administrative, Clerical and Services Union

AURORA ENERGY ENTERPRISE PARTNERSHIP AGREEMENT 2002 - 2005

Proposed protected action ballot by employees of Aurora Energy Pty Ltd - variation of ballot order - timetable for ballot - variation of closing time for roll of voters - addition of names to roll of voters - statutory construction - injustice - absurdity - Workplace Relations Act, ss.111, 468, 469.

[1] This decision deals with applications by Australian Municipal, Administrative, Clerical and Services Union (ASU), The Association of Professional Engineers, Scientists and Managers, Australia (APESMA) and Aurora Energy Pty Ltd (Aurora Energy) for orders for variations to certain ballot orders (Ballot Orders). For the purpose of this decision I will refer to the three entities collectively as the Applicants. On 27 June 2008 I acceded to the applications and issued variation orders undertaking to publish detailed reasons in due course. This is those reasons.

[2] The Ballot Orders [1] that are sought to be varied were made on 19 June 2008 in respect of applications by the ASU[2] and APESMA.[3] On the same day I issued a Correction Order in respect of each of the two Ballot Orders substituting the day and date Friday 20 June 2008 for Monday 16 June 2008 as it occurred in clause 5 of the Ballot Orders. Aurora Energy was respondent to each of the Ballot Orders and the Correction Orders. The applications to vary were made on 25 June 2008. Although not made in the prescribed form initially, formal process was filed on 26 and 27 June 2008. Nothing turns on that fact.

[3] The substance of the applications is to substitute a complete new time table for the conduct of the ballot the subject of the Ballot Orders. The single ground upon which the applications rest is Aurora's omission of details relating to 262 employees from the list of its employees as required by clause 5 of the Ballot Orders. The variations, it was submitted, will create provisions that supersede the directions in the original ballot order, prevent the original ballot from occurring with its timetable and require the AEC to destroy the original lists of voters. The applications are made under s.469 of the Workplace Relations Act 1996 (WR Act) in reliance on the Commission's powers under s.111(1)(d).

[4] Section 111 sets out the powers of the Commission generally. It relevantly provides as follows:

(1) The Commission may do any of the following in relation to a proceeding under this Act …

(d) vary or revoke an order, direction or decision of the Commission;

[5] Section 469 is more specific. It falls within Division 4 of Part 9 of the WR Act dealing with secret ballots on proposed protected industrial action and provides as follows:

(1) An applicant for a ballot order may apply to the Commission, at any time before the order expires, to vary the ballot order.

(2) The authorised ballot agent for a particular ballot may apply to the Commission, at any time before the ballot has closed, to vary:

(a) the voting method specified in the ballot order; or

(b) the timetable for the ballot specified in the ballot order.

[6] The expression ballot order is defined as an order made under s.462 requiring a protected action ballot to be held. [4]

[7] In the each of the Ballot Orders Aurora Energy was required to provide to the Authorised Ballot Agent (AEC) by 4.00 p.m. on Friday 20 June 2008 a list of its employees eligible to vote as at the date of the order. Each of ASU and APESMA were to provide lists of their members employed by Aurora Energy by the same time and date. Under clause 7 of the Ballot Orders the rolls of voters were to close at 5.00 p.m. on Monday, 23 June 2008. The ballots were to open on 26 June and scheduled to close on 4 July 2008. On 25 June 2008 Aurora Energy notified the Commission of the omission of 262 of employees from the list of its employees provided to the AEC. The omission was due to the use of inconsistent retrieval criteria to extract data from two separate data sources for the compilation of the employee lists. Accordingly the employer's list of eligible employees was inaccurate. The purpose of the variation applications is to allow Aurora Energy an opportunity to submit a complete and accurate list of its employees for inclusion in the rolls of voters.

[8] The Applicants contended that the Commission has jurisdiction generally under s.111(1)(d) to vary its orders, including a ballot order. Section 469, it was submitted, is the facility by which an applicant may apply to vary a ballot order.

[9] Section 469, the Applicants submitted, allows a variation to a ballot order at any time before the order expires. The Ballot Orders have not expired. Accordingly the Commission can make the variation orders sought. The Applicants submitted that the expression at any time as it appears in s.469 is to be contrasted with the time limits imposed by s.468. The only condition precedent to the making of a variation order is the currency of the ballot order. The fact that a variation to a ballot order under s.469 results in a closing time for the roll of voters that differs from the closing time of original ballot order is inconsequential. This is the case, it was submitted, despite the closing time for the roll of voters under the original order having passed at the time the variation was sought. To the extent that the variation expanded the closing time for the roll of voters, it would render the roll of voters compiled under the original ballot order a nullity.

[10] It is clear that s.469 confers on an applicant for a ballot order a right to apply for a variation of the order at any time before the ballot order expires. A ballot order expires at the end of the period specified in the order for the ballot to be held. [5] Section 469 does not empower the Commission to make an order upon an application under that section. The source of power to make an order in respect of an application under s.469 is s.111(1)(d) of the WR Act.[6] The issue is whether an order ought to be made in the circumstances of this case. One factor militating against making an order is the extent to which the effect of the order may contradict or deviate from the apparent proscription of s.468(4).

[11] It is necessary to set out s.468 in full:

(a) a person requests the authorised ballot agent to include the person's name on the roll of voters for a protected action ballot; and

(b) the ballot agent is satisfied that the person is eligible to be included on the roll; and

(c) the request is made before the day on which the roll of voters is to close;

the ballot agent must add the person's name to the roll.

(a) a person applies to the Commission for a declaration that the person is eligible to be included on the roll of voters for the ballot; and

(b) the Commission is satisfied that the person is eligible to be included on the roll; and

(c) the application is made before the day on which the roll of voters is to close;

the Commission must make the declaration and direct the authorised ballot agent to include the person's name on the roll.

(a) a party, the authorised ballot agent, or a person whose name is on the roll of voters for a protected action ballot, applies to the Commission for a declaration that a person whose name has been included on the roll of voters for the ballot is not eligible to be so included; and

(b) the application is made before the day on which the roll of voters is to close; and

(c) the Commission is satisfied that the person is not eligible to be so included;

the Commission must make the declaration and direct the authorised ballot agent to remove the person's name from the roll.

(4) A person's name cannot be added to, or removed from, the roll of voters for a protected action ballot after the day on which the roll of voters is to close.

[12] Section 468 makes provision for adding and removing names to or from the roll of voters. It empowers the ballot agent or the Commission to add names to the roll of voters upon applications made to that effect before the day on which the roll of voters is to close. The Commission may also direct the removal of names from the roll of voters upon application made before the day on which the roll of voters is to close.

[13] The Ballot Orders required Aurora to provide to the AEC by 4.00 p.m. on 20 June 2008 a list of its employees who are eligible to vote in each of the ballots and directed that the roll of voters close at 5.00 p.m. on 23 June 2008. In separate orders (ballot agent orders) [7] made on 19 June 2008 the AEC was ordered to compile the rolls of voters in accordance with the Ballot Orders. Aurora provided a list of employees, albeit incomplete, by the due date and the roll of voters closed as scheduled on 23 June 2008. The current applications seek to vary the Ballot Orders so that the date by which the employer's lists must be provided is 27 June 2008 and the closing time for the rolls of voters is 5.00 p.m. on 1 July 2008.

[14] I do not accept the Applicants' characterisation of the effect of the proposed orders. It cannot be the case that the orders simply have the effect of substituting the scheduled times. The ballot orders and the consequent ballot agent orders run from the date of the orders. On their proper construction the applications seek orders applying retrospectively to extend the relevant times by which certain actions needed to occur. The practical effect of that is to add the names of 262 employees to the lists of names provided by the employer to the AEC. At first blush an order for a variation of that sort has the appearance, if not the effect, of the Commission directing the ballot agent to include 262 persons' names on the roll after the day on which the roll of voters was to have closed.

[15] Section 469, according to its own terms, allows an applicant for a ballot order to apply for its variation unconditionally, including a variation of the order as to the roll of voters. Section 468 however presents some difficulty. There appears to be some tension between s.468 and s.469. To the extent that the latter section admits of a variation order that changes the closing time for the roll of voters so as to allow the addition of persons to the roll after the roll has closed it would appear to contradict s.468(4). As a general rule a party, cannot achieve indirectly what it is not permitted to achieve directly. It seems incongruous and contrary to the objects of Division 4 of Part 9 of the WR Act that a ballot should fail or be invalidated by reason of an employer's error or inadvertence in complying with the ballot order in the first instance. Such a construction would work an injustice against the applicants for the ballot order.

[16] Section 468 admits of an alternative construction. It is noted that the word person as it appears twice in subss. (1) and (2) respectively of s.468 is expressed in the nominative case. In other words an individual may apply to the ballot agent or the Commission to have his or her own name included in the roll of voters. This may be contrasted with subs. (3) of s.468 and s.469. Under subs. 468(3) the applicant, the ballot agent or a person whose name appears on the roll may apply for a person's name to be removed from the roll. Here the words applicant, ballot agent and person first occurring are in the nominative case and person as it appears the second time is in the objective case. In other words any of the three nominated entities may apply to the Commission to have the name of any individual removed from the roll. Under s.469 the applicant for a ballot order may apply generally and a ballot agent in certain specified circumstances for a variation of a ballot order.

[17] It is a widely accepted principle of statutory interpretation that the rules of construction are rules of common sense. Where the choice is between an interpretation that will result in inconvenience, injustice or absurdity and another which avoids such a result, then the latter ought to be adopted. [8] For all of these reasons I consider that s.468(4) does not restrict timetable variations made pursuant to an application under s.469 the effect of which would be to include on the roll of voters the names of persons whose names were omitted at the time the roll closed. A different conclusion may pertain if the effect of the variation was to remove names from the roll. I have issued a variation order accordingly.

[18] It remains to consider the effect any variation may have in respect of the ballot agent orders. Those orders required the AEC to conduct ballots in accordance with the terms of the Ballot Orders. The ballot agent orders were made under s.466 of the WR Act and there is no provision in Division 4 of Part 9 to vary or revoke such orders. I am satisfied however that such orders may be revoked and/or varied under the Commission's powers that are found in s.111. I have determined that the respective ballot agent orders should be revoked and new ballot agent orders issued. Accordingly, I have made ballot agent orders to that effect.

B O'Brien for Australian Municipal, Administrative, Clerical and Services Union.

L Crowley for The Association of Professional Engineers, Scientists and Managers, Australia.

M Gaddie of Zeeman & Zeeman for Aurora Energy Pty Ltd.

[1] 8 Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297, 304-05; see also Public Transport Commission of NSW v J Murray-More (NSW) Pty Ltd [1975] HCA 28; (1975) 132 CLR 336, 350.

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