Industrial Relations Secretary v Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales

[2017] NSWSC 71

Supreme Court

New South Wales

Medium Neutral Citation:

Industrial Relations Secretary v Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales [2017] NSWSC 71

Hearing dates:

8, 9 February 2017

Date of orders:

09 February 2017

Decision date:

09 February 2017

Jurisdiction:

Common Law

Before:

Fagan J

Decision:

1. The Court declares that the defendant has contravened the dispute orders made by the Industrial Relations Commission, Commissioner Newall, on 2 February 2017, in the respects alleged by the prosecutor in pars 2 and 3 of its amended summons to be filed on 10 February 2017.

 

2.The proceedings are stood over to 2:00 pm on Friday, 17 February 2017 for the hearing of submissions as to penalty and taking evidence with respect to penalty, subject to any application that may be made at that time for further adjournment of that aspect of the proceedings, depending upon events in the meantime.

 

3. The prosecutor is to serve by noon on Thursday 16 February 2017 any affidavits upon which it intends to rely with respect to the level of penalty in addition to the affidavits which have already been read in the proceedings, such additional affidavits to be provided in copy to my Chambers at the time they are served.

 

4.The defendant is to file any affidavits on which it wishes to rely in the hearing on penalty listed for the afternoon of 17 February 2017 by noon on 17 February 2017 with a copy delivered to my Chambers at the time of service.

 

5. The originals of all such affidavits can be filed in Court at 2:00 pm on Friday 17 February 2017.

 6. Liberty is granted to either party to apply to the Court for variation of these directions and of the listing or otherwise on 24 hours’ notice.

Catchwords:

INDUSTRIAL LAW – s 139 Industrial Relations Act 1996 (NSW) – show cause summons – dispute orders require industrial organisation to cease encouraging strike – whether dispute orders contravened – whether s 139 Industrial Relations Act permits Supreme Court to order additional injunction – penalty to be determined after impacts of strike ascertained

Legislation Cited:

Industrial Relations Act 1996 (NSW)

Cases Cited:

Bluescope Steel (AIS) Pty Limited v Australian Workers’ Union [2005] NSWIRComm 210

Category:

Principal judgment

Parties:

Industrial Relations Secretary (prosecutor)
Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales (defendant)

Representation:

Counsel:
Mr Nicholas Owens SC/Mr Robert Ranken (prosecutor)
Mr Mark Gibian (defendant)

  Solicitors:
Lea Armstrong, Crown Solicitor (prosecutor)
Alison McRobert, Haywards Solicitors (defendant)

File Number(s):

2017/038081; 2017/040552

Judgment

1. Before the Court is an application by the prosecutor, who stands in the position of employer of public servants of the State of New South Wales for enforcement orders made by the Industrial Relations Commission on 2 February 2017 under s 139 of the Industrial Relations Act 1996 (NSW).

2. The prosecutor’s application for enforcement has been heard today pursuant to a summons to show cause which was issued on 8 February 2017 under subs (2) of s 139. On 8 February 2017 the prosecutor obtained leave of the Court to issue that show cause summons directed to the defendant. The defendant is the industrial organisation of New South Wales public servants. It is registered under the Industrial Relations Act and is a corporate body: see s 222.

3. When the application for the issue of the show cause summons was made to the Court on 8 February, the prosecutor referred the Court to certain dispute orders which were made under s 137 of the Act by Commissioner Newall on 2 February 2017. These orders are binding upon the defendant, requiring it to cease organising and/or directing a strike of its members which it has scheduled for 14 February 2017. Evidence was tendered on 8 February 2017 indicating this order was being breached by the Association’s ongoing encouragement to members to participate in the proposed strike. Upon that prima facie material, the Court ordered that the summons to show cause should be made returnable at 9.30 am on 9 February 2017. Subsection (1) of s 139 requires that this Court, on application, “must deal expeditiously with an alleged contravention of a dispute order”.

The industrial dispute

4. On the hearing of the show cause summons returnable this morning at 9.30am, both parties read affidavits from which I have found the following facts.

5. The Government of New South Wales entered into heads of agreement with the governments of other states and of the Commonwealth in 2012 to implement the National Disability Insurance Scheme. One aspect of the heads of agreement is a commitment on the part of the New South Wales Government that it would transfer specialist disability support services to non-government providers.

6. At the time this agreement with the other governments was made a large number of employees of the New South Wales Government in the Department of Family and Community Services (“FACS”) were engaged in disability support. One category of these employees were home care services staff who provide services in the homes of elderly people to support them in old age and, in some cases, support them in respect of disabilities which they suffer. Employees of FACS in the home care services area were transferred to a private service provider in about February 2016.

7. The Government intends that employees of FACS who work in another area, disability services, shall also be transferred to private providers. It is the Government’s intention that this transfer be fully implemented by July 2018. Some of the staff employed by FACS in this area are nursing staff who work in institutional facilities. Another significant number of staff, which on my calculations appears likely to be about 2,700 or 2,800, work in the field of providing disability services to disabled people who reside in group homes.

8. The evidence before me shows that FACS currently operates 314 group homes in which residential care is provided to disabled people usually in groups of about five or six clients (as they are termed) in each home. The evidence refers to a figure of 1,396 people living in these situations and receiving disability services from employees of FACS, who are said to work in the ratio of about 11 disability support workers to each location. That is, approximately two workers to each of the disabled people. These services are provided 24 hours per day and 365 days per year. The employees work in three shifts of eight hours per day.

9. Following the announcement by the Government of its accession to the heads of agreement for the implementation of the National Disability Insurance Scheme, the defendant, to which I will refer as the Association or the Public Service Association, entered into discussions with FACS concerning the provision of appropriate protection to disability workers in relation to their transfer from employment by government to employment by private enterprise. These discussions have developed into a dispute.

10. By letter of 16 January 2017 the General Secretary of the Association notified the Secretary of FACS of its intention to strike “in relation to the total privatisation of disability services in New South Wales”. The Secretary of FACS was notified that the Association’s delegates had resolved to take industrial action for 24 hours starting on 14 February 2017.

11. This would affect the provision of disability services to the, approximately, 1,396 disabled people to whom I have referred in a number of ways. Critically, FACS is unable to be sure that it can provide other workers to cover the absence of FACS employees if they stay away from work on strike. FACS has the difficulty of having to cover three shifts per day. The risk involved in this is critical as the disabled people are naturally vulnerable. The fact that they require disability workers in a ratio of 2 to 1 makes that perfectly clear.

12. Further, FACS provides respite services in which disabled people are able to enter into respite care on a daily basis to relieve carers who otherwise provide for them at home or in some other situation. The provision of those respite services would have to be cancelled for three days because of the expected absence on strike of workers on shift at the beginning of 14 February and at the end of 14 February for reception and transfer of clients attending for respite care.

Proceedings in the Industrial Commission

13. The notification to FACS that a strike was intended was followed by a notification to the Industrial Commission under s 130 of the Industrial Relations Act of a dispute for the purpose of having it resolved. The Act provides that in the first instance such a dispute, in this case concerning most critically the impending strike, must be the subject of conciliation. Conciliation is provided for in s 134. Section 135 enacts that if a dispute cannot be resolved by conciliation then it is to be dealt with by arbitration. That cannot take place until the Industrial Commission has issued a certificate that reasonable attempts have been made to resolve the industrial dispute by conciliation. If the Commission decides that industrial action or duress necessitates the exercise of its arbitral powers then under subs (7) of s 135 of the Commission must, without delay, issue a certificate of attempted reconciliation so that the arbitral process can begin.

14. That occurred in this case. There was a conciliation before Commissioner Newall. It was unsuccessful. Commissioner Newall then proceeded to deal with the dispute on an arbitral basis. Section 136(1)(c) empowered the Commissioner to make a dispute order as a resolution, interim or final, of the arbitral process.

Commissioner Newall’s dispute order

15. Section 137 provides for the making of dispute orders. The relevant paragraph for present purposes is as follows:

“137 Kinds of dispute orders

(1) The Commission may make the following kinds of dispute orders when dealing with an industrial dispute in arbitration proceedings:

(a) the Commission may order a person to cease or refrain from taking industrial action;

…”

16. “Industrial action” is defined in the dictionary of the Act to mean a strike by employees, and to include a practice relating to the performance of work adopted in connection with an industrial dispute that restricts, limits or delays the performance of work. There are other things that are included within the definition of “industrial action”, not relevant for present purposes.

17. Clearly, the strike which has been scheduled by the Association for 14 February 2017 is industrial action. It has not only been notified to FACS and been the subject of the dispute resolution process in the Commission, but, further, it has been promulgated by the Association to its members, by way of a website, from before the conciliation process was undertaken and before the arbitration process proceeded on 2 February 2017. The Association has displayed on its website from some date before 2 February 2017 a notification which reads, so far as is relevant, as follows:

“Strike. The PSA directs all members in disability services across NSW to strike for 24 hours from the start of day shift on Tuesday, 14 February 2017. Join the strike and fight for your rights.”

18. The Commission’s power to make an order under s 137(1)(a) that a person cease or refrain from taking industrial action may be exercised against an industrial organisation. That is provided for in s 138(1)(b), which permits the making of an order against “a party” and recognises that industrial organisations will commonly (if not always) be parties to disputes. It is apparent from the definition of “industrial action” to which I have earlier referred and from the content of s 137(1)(a) and 138(1)(b) that the concept of “taking industrial action” does not just refer to individual members of an industrial organisation declining to attend for work as part of a strike. The concept of “taking industrial action” clearly also applies to what the Association itself may do with respect to bringing about a situation in which its members do not attend for work, by way of strike action.

19. Pursuant to the power in ss 136 and 137 Commissioner Newall on 2 February 2017 made orders of which the following paragraphs are relevant:

“A1. The Public Service Association of NSW (“the Association”), its officers, employees and members employed, for the purposes of s. 50 of the Government Sector Employment Act 2013, by the Industrial Relations Secretary, are hereby ordered immediately to cease organising and refrain from taking any form of industrial action in the area of disability services operated by the Department of Family and Community Services, including any strike, stop work meeting, ban, relieving ban, limitation or restriction on the performance of work and must not recommence, engage in or threaten to engage in industrial action while these orders are in force.

A2. The Association and its officers, employees and agents must not induce, advise, authorise, encourage, direct, aid or abet members of the Association to organise or take further industrial action in the area of disability services operated by the Department of Family and Community Services while these Orders are in force.”

Contravention of the orders

20. Evidence adduced by the prosecutor on the show cause summons establishes that the notice to members directing them to strike for 24 hours from the start of day shift on Tuesday 14 February 2017 quoted at [17] has remained displayed on the Association website since the orders of Commissioner Newall were made and was still displayed as at the date of the hearing before this Court.

21. The prosecutor’s evidence has established that on 3 February 2017 the Association put up on its website a bulletin which included the following under a heading “Disability Services Strike Action Proceeding”:

“Instead of agreeing to a path of resolution, the Department has sought and received orders from the Industrial Relations Commission to stop the strike. The PSA, however, will proceed with the 24 hour strike on Tuesday, 14 February 2017 even if it means the union cops a fine for sticking up for the employment interests of our members.”

22. There follows about a page of text arguing the justification for this course. Towards the end of the document there appears the further statement: “Stand with the PSA on Valentine's Day and fight for a better deal”. The reference to “a better deal” is to an earlier passage in the document in which it is said that FACS was not offering terms of transfer to private enterprise for the disability service workers comparable with the terms which had been offered or given to public sector employees in other areas who had transferred to private employment.

23. The document concludes with a link marked with the words: “Click here for details of all strike day information and venue”. Clicking on that link would take the person having access to the site through to the strike notification document quoted at [17].

24. On these facts, the prosecutor alleges in its amended summons two particulars of contravention of the orders made by Commissioner Newall. First, it is alleged in paragraph 2 of the amended summons that order A1 was contravened on 2 February 2017 and thereafter by way of the Association “continuing to organise industrial action while the dispute orders are in force; namely, a 24 hours strike on 14 February 2017”. The evidence referred to as substantiating this aspect of breach of Commissioner Newall's orders is the strike notification which had been in place before 2 February 2017 and which has remained in place since (quoted at [17]) and the bulletin which was published on 3 February 2017 quoted at [21] and [22].

25. The second particular of breach of Commissioner Newall's orders is given in paragraph 3 of the amended summons. It is that order A2 has been contravened by the Association encouraging its members to engage in “further industrial action” in the area of disability services operated by FACS, namely by encouraging them to participate in the 24 hour strike on 14 February 2017. The same documents from the defendant’s web site are referred to as substantiating this contravention.

26. I find beyond reasonable doubt that in each of these particulars there is a clear contravention of order A1 of Commissioner Newall's orders. To continue to display the notification of strike, giving the date and specifying the duration as being a 24-hour strike, by leaving the original notification on the web site available for access by any member of the public, but particularly by Association members, in my view, clearly constitutes continuing to organise the strike and is in direct contravention of order A1.

27. The display of the bulletin which was put up the day after the orders had been made, 3 February 2017, also constitutes a continued organising of the strike. It is a direct communication to members, by what is evidently a common means of conveying the organisation's wishes to its members, that the strike remains planned and that they may go to the notification document, which directs them as to the date and time of the strike and of its venue, by utilising the electronic link.

28. Again to the same standard of proof I am satisfied that leaving that notification on the web site and putting up the bulletin on the 3 February constitutes encouraging members to take further industrial action in contravention of order A2. It was argued by the Association that order A2 is only directed to the prohibition of industrial action, if any, which might be contemplated or organised after 14 February 2017 and that the words “further industrial action” do not make reference to that which was already the subject of planning and which was at least part of the subject of the conciliation and arbitration process in the Commission on 2 February 2017. I do not accept that meaning of the order.

29. Of course this Court would not find a contravention of an order in proceedings under s 139 without being satisfied that the relevant order was made in terms of sufficient clarity, without ambiguity, so that allegedly infringing conduct can clearly be seen to be in breach of something that the Association was directed not to do. But those words “further industrial action” to my mind in the context of the dispute and having regard to the terms of the orders generally, mean any industrial action on and after the date of the orders. Order A2 contains direction as to the period within which the injunction is to be observed; that is, while the orders are in force. Thus any period from 2 February 2017 up to, including and beyond 14 February 2017 is a period in which any industrial action would be “further industrial action” and is required not to be encouraged by the Association.

Powers of the Supreme Court in case of breach of Commission Order

30. In s 139 of the Industrial Relations Act it is provided in subs (3) as follows:

“139 Contravention of dispute order

…

(3) The Supreme Court may, after hearing any person who answered the summons to show cause and considering any other relevant matter, do any one or more of the following:

(a) dismiss the matter if it finds that the dispute order was not contravened or if it finds that the circumstances were such that the Supreme Court should take no action on the contravention,

(b) cancel the approval of an enterprise agreement,

(c) suspend or modify for any period all or any of the entitlements under an industrial instrument,

(d) cancel the registration of an industrial organisation or take any other action authorised by Division 2 of Part 3 of Chapter 5,

(e) impose a penalty on an industrial organisation or an employer as provided by subsection (4),

(f) make any other determination that the Supreme Court considers would help in resolving the industrial dispute.”

31. The penalty referred to in par (e) of this subsection is subject to the maximum prescribed by subs (4), in these terms:

“(4) The maximum penalty that may be imposed on an industrial organisation or employer is:

(a) except as provided by paragraph (b)—a penalty not exceeding in total $10,000 for the first day the contravention occurs and an additional $5,000 for each subsequent day on which the contravention continues, or

(b) if a penalty has previously been imposed on the industrial organisation or employer for a contravention of an earlier dispute order—a penalty not exceeding in total $20,000 for the first day the contravention occurs and an additional $10,000 for each subsequent day on which the contravention continues.”

32. The enforcement orders that the prosecutor seeks under this section are four further injunctions and a penalty. The orders proposed by the prosecutor are as follows:

“1. An order pursuant to s 139(3)(f) of the Industrial Relations Act 1996 (NSW) (IR Act) and s 23 of the Supreme Court Act 1970 (NSW) (SC Act) restraining the defendant, by its officers and/or employees, from organising, engaging and/or threatening to engage in any form of industrial action (as defined in the Dictionary to the IR Act) in the area of disability services operated by the Department of Family and Community Services (FACS) until 4:00 pm on 2 April 2017.

2. An order pursuant to s 139(3)(f) of the IR Act and s 23 of the SC Act that the defendant, by its officers and/or employees, by no later than 12 noon on 10 February 2017, issue a directive or similar communication to all members of the defendant employed in the area of disability service employed by FACS, directing those members to cease organising and to refrain from taking any form of industrial action in the area of disability services operated by FACS.

3. An order pursuant to s 139(3)(f) of the IR Act and s 23 of the SC Act that the defendant, by its officers and/or employees, by no later than 12 noon on 10 February 2017, publish the directive or communication referred in order 2 above on the websites and org.au and any social media accounts of the defendant.

4. An order pursuant to s 139(3)(f) of the IR Act and s 23 of the SC Act that the defendant, by its officers and/or employees, by no later than 12 noon on 10 February 2017, remove any directive or communication to members of the defendant in disability services operated by FACS on the websites and and any social media accounts of the defendant directing or encouraging those members to participate in any form of industrial action in the period from 4:00 pm on 2 February 2017 to 4:00 pm on 2 April 2017 in the area of disability services operated by FACS.

5. Imposition of a monetary penalty in accordance with s 139(3)(e) and (4) as the Court thinks appropriate in all the circumstances.”

33. The claim for relief in this form raises the immediate question whether there is power in the Supreme Court to make further injunctive orders of the nature sought in par 1 to 4. Such a power is clearly not comprehended within any of par (a) to (e) of subs (3) of s 139. The prosecutor contends that the Court has such a power under par (f) in that the granting of such further injunctions would constitute the making of “any other determination that the Supreme Court considers would help in resolving the industrial dispute”.

34. The question of statutory construction is: would the granting of these further injunctions constitute the making of “any other determination”? It would not according to the ordinary usage of the word “determination” in the English language generally and particularly in the law. A determination in the law, as recognised in the Macquarie Dictionary, means a conclusion or termination. The granting of an injunction is quite distinct from and not comprehended in the word “determination” in that usual legal sense. None of the other aspects or alternatives of the meaning of “determination” as given in the Dictionary would be apt to include the granting by a court of an injunction.

35. This leads to the question whether there is anything in the history or context of the section which should be taken to indicate that Parliament must have intended the word “determination” to have a wider meaning, including the granting of an injunction. Up until the amendment of the Act by legislation passed late in 2016 the references to the Supreme Court in s 139 were instead references to “the Commission”. These were references to the Industrial Commission sitting in Court Session. References throughout the Industrial Relations Act to “the Commission”, when the Act was in its form prior to the amendments of late 2016, meant either Commissioners exercising conciliation, arbitral and other powers conferred upon them throughout the Act, or alternatively the Commission sitting in Court Session, for which purpose the Commission was required to be constituted by a judicial officer. Prior to the amendments of late 2016 there were provisions which nominated which of the powers of the Commission referred to throughout the Act could be exercised by any of the Commissioners and which powers could only be exercised by the Commission sitting in Court Session. The Commission sitting in Court Session was to be regarded as and referred to as the Industrial Court.

36. There is nothing to indicate that Parliament intended by s 139(3)(f), as it appeared in the Act before its restructure in late 2016, that when a Commissioner had made dispute orders under s 137 in the nature of injunctions against industrial action the Commission sitting in Court Session could make further orders of this in nature by way of enforcement. Such a provision would have been redundant. For the Parliament to have so provided, very clear words would have been required. It would have been nothing short of a futility for subs (3)(f) of s 139 to have provided that if the Commission’s injunctive orders against a strike were breached then a remedy to be granted by the Commission in Court Session would be to make the injunctions over again or to make additional more detailed injunctions. Such an odd and impractical meaning is not to be attributed to par (f) by implication, in the face of a word of clear meaning, “determination”, which does not compel this construction.

37. One can envisage that there would be determinations according to the ordinary sense of the word that could be made by the Industrial Court (and now by the Supreme Court) which might “help in resolving the industrial dispute”, as envisaged by par (f) of s 139(3). For example, in a demarcation dispute it might be that if orders had been made by a Commissioner and were contravened, there might be some assistance given to resolving a dispute if the Industrial Court (in former times) and, now, the Supreme Court should make a determination as to where the demarcation line should be drawn, and to what industrial organisation employees in particular categories should belong to.

38. Certainly the paragraph can be seen to have potential work to do without attributing to it the highly artificial interpretation that it was intended to enable the making of further injunctions as a remedy for breach of initial injunctions. The paragraph as originally enacted cannot sensibly be interpreted as providing for further injunctions to “enforce” original injunctions. Nor can it be so interpreted following the amendments of December 2016 by which the Supreme Court, in lieu of the Industrial Court, was conferred with authority to make orders for enforcement of Commission orders.

39. Another consideration which confirms me in my view that par (f) of subs (3) does not empower the Court to grant further injunctions is this: if a further injunction should be granted against this organisation, and if that injunction should then be breached, there would be constituted a contempt of the orders of this Court. That would give rise to a charge of contempt and upon the disobedience to this court's order being proved, the penalties open to be imposed would be at large. They would include a fine without limit and sequestration of the Association. But subs (4) makes clear that the Parliament has made a considered judgment about the maxima for financial penalties and pars (b), (c) and (d) of subs (3) are statutory alternatives to sequestration. Again it would require very clear language in subs (3)(f) for Parliament to create a situation whereby the Supreme Court might make a fresh injunction and thereby expose the defaulting party, if the breach should persist, to fines without limit and to sequestration rather than to the limited penalties and other orders for which Parliament has expressly provided. There is no clear language in par (f) of subs (3) to indicate that this was the intention of Parliament. On the contrary, the word “determination” is clear enough to indicate that a much narrower power is conferred by that paragraph.

40. In any event, even if I am wrong in this and if there is a power under s 139 subs (3)(f) in this Court to make further injunctions when Commissioner Newall's injunctions have been disregarded, I would exercise the Court's discretion with respect to such relief against doing so. The circumstances, as I have found them, are that a very clear order has been made by a Commission exercising arbitral powers acting within its jurisdiction and there has been an equally clear, deliberate, conscious and express defiance of those orders. I would consider it to be a gesture of futility for the Supreme Court to grant injunctions as sought by the prosecutor simply to order again that which the Association has already refused to comply with when ordered by a body which has the power to make the existing injunctions.

41. The first of the injunctions which the prosecutor seeks would, if made, have an area of operation almost precisely the same as that of orders A1 and A2 already made by the Commissioner. Orders 2, 3 and 4, as sought, are more specific orders requiring that the defendant, by its officers and/or employees, should countermand the encouragement to strike and the organisation of the strike which has been effected by the material published on its web site, as earlier quoted. Order 3, as sought, would require that a countermanding direction from the Association be published on the Association's web site and order 4 would require the Association, by its officers and/or employees, to take down the offending material from the web site.

42. If the Association is to desist from its breaches of Commissioner Newall's orders A1 and A2, in the respects which I have found proved, it would have to carry out the steps that the prosecutor asks the Court to order, in pars 2, 3 and 4 of the prosecutor’s proposed enforcement orders quoted at [32]. In order to prevent the material that has been published since 2 February 2017 that is the notification of strike and the bulletin of 3 February 2017, from constituting ongoing organisation of the strike and encouragement to members, those documents would necessarily have to be countermanded, inter alia by a communication in the same medium as that in which the original encouragement and organisation of the strike was perpetrated. The content of proposed order number 4, being that the offending material on the web site be taken down, would have to be carried out if the breaches which I have found of orders A1 and A2 are to cease.

The enforcement order to be made

43. Paragraph (a) of subs (3), providing for dismissal of the matter, is not applicable in view of the findings I have made. Paragraphs (b), (c) and (d) are remedies of a sweeping nature which would affect generally the rights of employees and/or of the Association, not just in relation to the dispute at hand. The circumstances do not warrant orders of that nature. The only power under subs (3) which it is appropriate to exercise is that of imposing a financial penalty pursuant to par (e). The maximum penalties are as prescribed in subs (4).

44. The prosecutor has urged that I should fix that penalty forthwith in order to put in place at the earliest possible opportunity deterrence to the Association of any further breach of Commissioner Newall's orders. This is urged on the basis that offering such immediate deterrence would provide the best prospect of such deterrence translating into actual cessation of the offending conduct. The prosecutor has urged this course in circumstances where its witnesses have justifiably and understandably expressed great concern about the risk to the vulnerable people who receive services from FACS if the strike goes ahead. The degree of that risk is incalculable in circumstances where the prosecutor cannot know and therefore cannot provide to the Court evidence of the extent to which the membership of the Association will conform to its directives by participating in the strike.

45. During the course of argument the course of fixing penalties forthwith has appeared to me to have some attraction but, on balance, I consider that there would be a significant risk that if I should do this the exercise might miscarry for want of taking account of all relevant considerations.

46. In Bluescope Steel (AIS) Pty Limited v Australian Workers’ Union (No 2) [2005] NSWIRComm 210, Boland J of the Industrial Relations Commission in Court Session set out at [37] a list of matters that may be considered relevant in assessing penalty. They are as follows:

“(a). The circumstances in which the relevant contravention took place (including whether the contravention was undertaken in deliberate defiance or disregard of the dispute order);

(b). Whether the person found to have been in contravention of a dispute order has previously been found to have engaged in conduct in contravention of an earlier dispute order [reference was made to s 139(4)(b)];

(c). The consequences of the conduct found to be in contravention of the dispute order;

(d). The need, in the circumstances, for deterrence; and

(e). Any relevant subjective factors including undertakings regarding further conduct.”

47. I respectfully accept that all of those factors, not necessarily an exhaustive list, would be relevant. I would be in a position to make a conclusion on material before me today as to the circumstances in which the contravention took place (consideration (a) in the above list). As I intend to stand the fixing of penalty over to another date I will not express any final conclusion. However, tentatively, and subject to further submissions, it does appear that there is a basis for finding that the circumstances in which the contravention has taken place are as serious as they could be. In other words that the contravention appears to be in the worst category of case, to adopt an expression from principles of sentencing in the criminal law. The breach has occurred in explicit, deliberate defiance of the Commission's orders, as is apparent from the passage that I quoted at [21] from the bulletin of 3 February 2017 which speaks of the Association’s willingness to “cop a fine”.

48. On the other hand, other aspects of the factors which may bear upon the level of penalty are not settled on the present material. For example, item (c) as referred to by Boland J, the consequences of the conduct. Ultimately the consequences depend upon the extent to which the Association’s calls to its members for a strike are followed. The consequences will be ascertained by the level of disruption to services and the degree to which discomfort and trauma are inflicted on the clients of FACS due to inadequate care for the full 24 hours. Even if there should not be any material observable harm to individual clients, consequences of the conduct in the sense in which this expression is used by Boland J will include the extent to which the employees adhere to their Association's call and participate in defiance of the system of maintaining order in disputes in the workplace which is provided for by the Industrial Relations Act.

49. Factor (d) mentioned by Boland J, the need in the circumstances for deterrence, is something that is apparent on the facts already before me, at least with respect to general deterrence. It is obviously critical to the whole fabric of the system set up under the Industrial Relations Act that lawfully made orders of a Commissioner, such as that of 2 February 2017, be observed rather than explicitly and flagrantly disregarded.

50. Deterrence has two aspects. I have referred to the general. There is also the question of specific deterrence. I am not in a position today readily to assess the need for specific deterrence of this organisation. That depends in particular on its past behaviour. I do not have before me yet a full range of information concerning the Association’s record. I would need to give the Association an opportunity to make submissions about its past breaches, such as they have been, and to address the Court on whether they indicate a repetitive and incorrigible unwillingness to respect orders lawfully made or whether the present circumstances are an aberration. I would also need to hear submissions regarding the Association's past conduct, as to whether that is reflective of the attitudes of predecessor officers or whether the violation which has been proved represents a culture.

51. In addition to the factors referred to by Boland J and conformably with the principles of sentencing in the criminal law which have some parallel with this exercise, there is the question of whether the party on which the penalty is to be inflicted has exhibited any remorse or contrition. The answer as of today's date is: “No”. However it does not appear to me that it would be a sound or defensible exercise of the power of fixing penalty to proceed to do so peremptorily without giving the organisation at least a reasonable, if short, period within which to reconsider its actions and refrain from further breach of the orders and thereby demonstrate remorse.

52. It would significantly mitigate the penalty if the Association were willing, after today's date and before the strike takes place, to recognise the necessity for it to observe the orders of the Commissioner. If the strike should be called off a very different light would be cast on the level of penalty than that which falls upon it as at today's date. It would not be appropriate to pre-empt the Association from demonstrating willingness to abide the Commission’s orders, by calling off the strike.

53. The opportunity to make amends to the extent possible, before penalty is fixed is an opportunity which, in other contexts, and I refer again to sentencing law, is available as a matter of course. When a person faces a criminal charge there is inevitably a period of delay between the commission of the offence and the imposition of sentence. In that context the person who is to be penalised has the opportunity to think upon his or her actions and may gain significant amelioration of penalty by recognising fault, expressing regret and thereby blunting what would otherwise be the severity of the court’s orders.

54. For all of those reasons the Court will defer the date on which penalty is to be determined. The enforcement order to be made under s 139 will be a financial penalty under s 139(3)(e).

The orders of the Court are:

1. The Court declares that the defendant has contravened the dispute orders made by the Industrial Relations Commission, Commissioner Newall, on 2 February 2017, in the respects alleged by the prosecutor in pars 2 and 3 of its amended summons to be filed on 10 February 2017.

2. The proceedings are stood over to 2:00 pm on Friday, 17 February 2017 for the hearing of submissions as to penalty and taking evidence with respect to penalty, subject to any application that may be made at that time for further adjournment of that aspect of the proceedings, depending upon events in the meantime.

1. The prosecutor is to serve by noon on Thursday 16 February 2017 any affidavits upon which it intends to rely with respect to the level of penalty in addition to the affidavits which have already been read in the proceedings, such additional affidavits to be provided in copy to my Chambers at the time they are served.

2. The defendant is to file any affidavits on which it wishes to rely in the hearing on penalty listed for the afternoon of 17 February 2017 by noon on 17 February 2017 with a copy delivered to my Chambers at the time of service.

3. The originals of all such affidavits can be filed in Court at 2:00 pm on Friday 17 February 2017.

4. Liberty is granted to either party to apply to the Court for variation of these directions and of the listing or otherwise on 24 hours’ notice.

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Decision last updated: 13 February 2017