Secretary NSW Department of Education v The Australian Education Union New South Wales Teachers Federation Branch

[2022] NSWSC 263

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Secretary NSW Department of Education v The Australian Education Union New South Wales Teachers Federation Branch [2022] NSWSC 263

Hearing dates:

16 December 2021

Date of orders:

14 March 2022

Decision date:

14 March 2022

Jurisdiction:

Common Law

Before:

Walton J

Decision:

(1)   The Court declares that the Australian Education Union New South Wales Teachers Federation Branch has contravened the dispute orders made by the Commission on 29 November 2021 in the respects alleged by the Prosecutor in Contraventions A and F of the amended summons, excluding particulars not available on the admitted evidence, in accordance with this judgment.

(2) Pursuant to s 139(3)(e) of the Act, the Court imposes a penalty upon the Australian Education Union New South Wales Teachers Branch of $30,000.

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW — industrial disputes — industrial action – dispute orders – Industrial Relations Act (1996) (NSW) (“the Act”) – statutory scheme – statutory interpretation – objects of the Act – maximum penalty – construction of s 139(4) of the Act – industrial organisation – history of the industrial organisation –Federation registered as industrial organisation – whether different legal species of organisation than its predecessor – validity of dispute orders – whether validity of dispute orders can be the subject of collateral attack in enforcement proceedings – whether dispute orders required the Federation to do something it cannot do – procedural fairness – notice of members of Federation –members not notified of the dispute orders – whether dispute orders were manifestly ambiguous and unclear – contravention of dispute orders – whether multiple separate contraventions of dispute orders – whether dispute orders imposed separate and distinct obligations on the industrial organisation – single course of conduct – assessment of penalty – sentencing principles – prior contraventions as a factor in sentencing – principle of totality – objective factors – nature and extent of contravening conduct – seriousness of conduct – deliberateness of conduct – loss and damage caused – circumstances of contravention – previous breach of dispute orders – general deterrence – specific deterrence – subjective factors – orders

Legislation Cited:

Constitution Act 1902 (Cth)

Fair Work Act 2009 (Cth)

Fair Work (Registered Organisations Act) 2009 (Cth)

Industrial Relations Act 1996 (NSW)

Industrial Relations Commission Rules 2009 (NSW)

Industrial Relations (Public Sector Conditions of Employment) Regulation 2014 (NSW)

Industrial Relations Reform Act 1993 (Cth)

Interpretation Act 1984 (NSW)

Legislative Instruments Act 2003 (Cth)

Supreme Court Act 1970 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

ABCC v CFMMEU (The Nine Brisbane Sites Appeal) (2019) 269 FCR 262

ACCC v Reckitt Benckiser (Australia) Pty Ltd (2016) 340 ALR 25; [2016] FCAFC 181

Ashworth v Terrill [2019] NSWSC 1596

Attorney-General (Cth) v Breckler (1999) 197 CLR 83; [1999] HCA 28

Attorney-General v Tichy (1982) 30 SASR 84

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Nine Brisbane Sites Appeal) (2019) 269 FCR 262; [2019] 286 IR 336

Australian Medical Association (NSW) Limited v The Director-General, NSW Department of Health, in respect of the Hunter New England Area Health Service [2007] NSWIRComm 289

Australian Salaried Medical Officers' Federation (NSW) v Secretary of Health [2018] NSWIRComm 1052

Australian Workers’ Union (NSW) v Bluescope Steel (AIS) Pty Ltd [2006] NSWIRComm 71

Bluescope(AIS) Pty Ltd v Australian Workers’ Union (No 2) [2005] NSWIRComm 210

Bluescope Steel Ltd (formerly known as BHP Steel Ltd) v The Australian Workers' Union, New South Wales [2006] NSWIRComm 338

Burwood Cinema Limited and Others v The Australian Theatrical and Amusement Employees' Association (1925) 35 CLR 528

Cahill v Construction, Forestry, Mining and Energy Union (No2) (2018) 170 FCR 357

CEPU v Registered Organisations Commissioner [2020] FCAFC 232

CFMEU v Cahill (2010) 194 IR 461

CFMEU v Williams (2009) 191 IR 445

Clubb v Edwards (2019) 267 CLR 171; [2019] HCA 11

Commonwealth of Australia v Fair Work Building Industry Inspectorate (2015) 258 CLR 482; [2015] HCA 46

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Registered Organisations Commissioner (2020) 283 FCR 404; [2020] FCAFC 232

Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (the Non-Indemnification Personal Payment Case) (2018) 264 FCR 155; [2018] FCAFC 97

Construction, Forestry, Mining and Energy Union v Cahill (2010) 194 IR 461

Construction, Forestry, Mining and Energy Union v Williams (2009) 191 IR 445

Construction, Forestry, Mining and Engineering Union v Cahill (2010) 269 ALR 1; [2010] FCAFC 29

Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57

Direction General, NSW Department of Education and Training and the Managing Director of TAFE v NSW Teachers Federation [2010] NSWIRComm 77

Director General of Education and Communities v NSW Teachers Federation [2012] NSWIRComm 92

Director General of New South Wales Department of Education and Communities and Managing Director of TAFE v New South Wales Teachers Federation [2012] NSWIRComm 58

Director General of New South Wales Department of Education and Communities v New South Wales Teachers Federation [2012] NSWIRComm 93

Director General, NSW Department of Education and Training and the Managing Director of TAFE v NSW Teachers Federation [2010] NSWIRComm 77

Director of Public Prosecutions v Zheng [2021] NSWSC 131

Director-General, Department of Education and Training v New South Wales Teachers’ Federation [2000] NSWIRComm 103

Director-General, NSW Department of Education and Training v NSW Teachers Federation [2010] NSWIRComm 44

Electrolux Home Products Pty Limited v Australian Workers’ Union (2004) 221 CLR 309; [2004] HCA 40

Esso Australia Pty Ltd v The Australian Workers’ Union (2015) 253 IR 304

Esso Australia Pty Ltd v The Australian Workers’ Union (2016) 245 FCR 39; [2016] FCAFC

Harris v Ansett Transport Industries (Operations) Pty Ltd (1978) 45 FLR 469

Hawkins v R (1993) 67 A Crim R 64

Hogan v Hinch (2011) 243 CLR 506; [2011] HCA 4

Ibbs v The Queen (1987) 163 CLR 447; [1987] HCA 46

ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248

Industrial Relations Secretary v Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales (2017) 93 NSWLR 723; [2017] NSWSC 71

Industrial Relations Secretary v Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales [2021] NSWSC 160

Industrial Relations Secretary v Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales(No 2) [2017] NSWSC 430

Jacobs v OneSteel Manufacturing Pty Ltd & Workcover Corporation of SA (2006) 93 SASR 568

Kioa v West (1985) 159 CLR 550; [1985] HCA 81

Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1

Kirkpatrick v Kotis (2004) 62 NSWLR 567; [2004] NSWSC 1265

Mabo v Queensland (No2) (1992) 175 CLR 1; [1992] HCA 23

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

McFarlane v Daniell (1938) 38 SR (NSW) 337

McKernan v Fraser (1931) 46 CLR 343; [1931] HCA 54

Menon, in the matter of an election for offices of the Manufacturing Division of the Construction, Forestry, Maritime, Mining and Energy Union (No 3) [2021] FCA 1263

Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11

Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40

Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273; [1995] HCA 20

MZAPC v Minister for Immigration and Border Protection [2021] HCA 17

Ousley v The Queen (1997) 192 CLR 69; [1997] HCA 49

Owners – Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9

Pastoral Industry (State) Award Application by Australian Business Industrial for a new award and another matter [2001] NSWIRComm 27

Pattinson v Australian Building and Construction Commissioner (2020) 282 FCR 580; [2020] FCAFC 177

Pearce v The Queen (1988) 194 CLR 610; [1998] HCA 57

Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales v Industrial Relations Secretary (2018) 96 NSWLR 762; [2018] NSWCA 39

Public Service Board (NSW) v Public Service Assn (NSW) [1986] 14 IR 445

R v Commonwealth Court of Conciliation and Arbitration; Ex Parte Amalgamated Engineering Union (1953) 89 CLR 636; [1953] HCA 60

R v Dodd (1991) 57 A Crim R 349

R v Geddes (1936) 36 SR (NSW) 554

R v Olbrich (1999) 199 CLR 270; [1999] HCA 54

R v Scott [2005] NSWCCA 152

Re Refugee Review Tribunal; Ex parteAala (2000) 204 CLR 82; [2000] HCA 57

Regional Express Holdings Ltd v Australian Federation of Air Pilots (2017) 262 CLR 456; [2017] HCA 55

Royer v Western Australia [2009] WASCA 139

Secretary of the Treasury v PSA (No 2) (2013) 231 IR 349; [2013] NSWIRComm 25

Secretary of the Treasury v Public Service Association and Professional Officers’ Association Amalgamated Union of NSW (2014) 89 NSWLR 688; [2014] NSWCA 138

The Director-General, NSW Department of Health, in respect of the Hunter New England Area Health Service and Australian Medical Association (NSW) [2008] NSWIRComm 112

The Public Service Association and Professional Officers’ Association Amalgamated (NSW) v Director of Public Employment (2012) 250 CLR 343; [2012] HCA 58

Veenv The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14

Victoria v Commonwealth (1996) 187 CLR 416; [1996] HCA 56

Texts Cited:

Leeming, “Authority to Decide - The Law of Jurisdiction in Australia”, Federation Press, 2nd Edition (2020)

Macquarie Dictionary, 7th Ed (2017)

Shorter Oxford English Dictionary, 6th Edition (2007)

Category:

Principal judgment

Parties:

Secretary NSW Department of Education (Plaintiff)
The Australian Education Union New South Wales Teachers Federation (NSWTF) Branch (Defendant)

Representation:

Counsel:
B Byrnes (Plaintiff)
S Crawshaw SC (Defendant)

Solicitors:
Crown Solicitors Office (Plaintiff)
New Law (Defendant)

File Number(s):

2021/344006

Judgment

1. On 25 November 2021, the Secretary NSW Department of Education (“the Prosecutor”) notified the Industrial Relations Commission of New South Wales (“the Commission”) of an industrial dispute pursuant to s 130 of the Industrial Relations Act 1996 (NSW) (“the Act”); Case No 2021/00336658 (“the industrial dispute”). The notification nominated Maxine Sharkey, General Secretary, of an industrial organisation of employees, the “Australian Education Union New South Wales Teachers Federation (NSWTF) Branch” as “the other persons affected by or involved in this question, dispute or difficulty” (see r 5.1 of Industrial Relations Commission Rules 2009 (NSW) (“the Rules”)).

2. The name of the industrial organisation specified in the notification of industrial dispute appeared in that form in many other documents in these proceedings, including the amended summons commencing the prosecution which is the subject of this judgment and dispute orders made by the Commission which, in turn, were the foundation for the prosecution. However, as will become apparent from the later discussion about registration of that industrial organisation in 2015, the name of the industrial organisation of employees registered under Ch 5 of the Act would appear to be, in fact, the Australian Education Union New South Wales Teachers Federation Branch. I shall refer to the industrial organisation throughout this judgment as the Federation.

3. The question, dispute or difficulty notified, in substance, was a dispute between the parties as to the terms of a new award to replace the Crown Employees (Teachers in Schools and related employees) Salaries and Condition’s Award 2020 (“the award”), which reached the end of its nominal term on the 31 December 2021 (see s 16 of the Act). The notifier advised that the parties were, notwithstanding various meetings between them, unable to reach an agreement as to a new award with respect to claims advanced by the Federation (those claims were set out in a letter dated 14 September 2021 to Ms Eyvette Cachir, Chief People Officer of the Prosecutor). The notification referred to the stoppage of work in some schools regarding the Federation’s claims and an anticipation of “further strike actions”. Urgent assistance of the Commission was sought by the Prosecutor.

4. The Prosecutor had earlier notified, on 12 October 2021, the existence of an industrial dispute (“the award dispute”). The Federation was named as a person affected by or involved in the “question, dispute or difficulty”. That notification referred to the negotiations for a new award proposed by the Prosecutor and sought that the Commission “bring the parties together for the purpose of discussion the New Award”; a commonplace procedure where negotiators for a new award encountered some difficulty.

5. Commissioner Webster undertook conciliation conferences in the award dispute on 21 and 28 October and 22 November 2021. She issued a certificate of attempted conciliation on 22 November 2021. The award dispute was then scheduled for arbitration before a Full Bench of the Commission on 9 to 13 and 18 to 20 May 2022 (it may be noted that the Commission made orders concerning proposals for an interim order on 22 November 2021).

6. On 24 November 2021, the Prosecutor filed an application for an interim award for an increase of 2.5% in salary and salary related costs to teachers and related employees from the first pay period following 1 January 2022 to remain in place for a period of 8 months, pending determination by a Full Bench of the Commission of the arbitration which had been set down.

7. On 26 November 2021, the industrial dispute was listed for conciliation in the Commission before Commissioner O’Sullivan. This was a mandatory step in dealing with the dispute (see s 133 of the Act). It was common ground that Commissioner O’Sullivan issued, on that day, a certificate of attempted conciliation pursuant to s 135(5) of the Act (“the Certificate”), although the Certificate was not itself in evidence.

8. In the afternoon of 26 November 2021, the Commission preceded to arbitration of the industrial dispute. After hearing the submissions of the Prosecutor and the Federation, Commissioner O’Sullivan decided not to make dispute orders, as sought by the Prosecutor, but instead issued a recommendation in the following terms:

The Federation and the Federation State Council must not:

1. organise, and shall refrain, from taking any form of industrial action that relates to the Federation’s current wage claims for employees of the Teaching Service, including the foreshadowed one day strike in December 2021, and including, but not limited to, any other strike, stop work meeting, ban, relieving ban, limitation or restriction on the performance of work; or

2. engage in or threaten to engage in any such industrial action; or

3. induce, recommend, advise, authorise, support, encourage, direct, aid or abet members of the Federation to organise or take industrial action.”

9. Commissioner O’Sullivan also directed the Federation to inform the Prosecutor and the Commission of any resolution of the Federation’s State Council concerning the subject matter of the dispute.

10. On 27 November 2021, the State Council of the Federation met and directed all its members to strike for 24 hours on Tuesday 7 December 2021

11. On 28 November 2021, the Prosecutor sought an urgent listing of the dispute to renew her application for the dispute orders.

12. On 29 November 2021, the industrial dispute came before Commissioner O’Sullivan for further arbitration. After hearing from the Prosecutor and the Federation, the Commissioner made orders and directions in a document executed by the Commissioner bearing the heading “Order”. The order consisted of orders and directions made pursuant to ss 136(1)(a) and 137(1)(a) respectively as follows:

ORDER

A. Pursuant to s.137 of the Industrial Relations Act 1996 the Commission makes the following orders:

1. The Australian Education Union New South Wales Teachers Federation (NSWTF) Branch (“the Federation”), its officers, employees, agents and its members employed in the Teaching Service, are hereby ordered to immediately cease organising and refrain from taking any form of industrial action that relates to the Federation’s current wage claims for employees of the Teaching Service, including the 24 hour strike to occur on 7 December 2021, and including, but not limited to, any other strike, stop work meeting, ban, relieving ban, limitation or restriction on the performance of work and are further ordered to not recommence, engage in or threaten to engage in any such industrial action whilst these orders are in force.

2. The Federation shall by no later than 4pm on 30 November 2021 issue a public statement which retracts and revokes its:

a) direction to members to strike for 24 hours on 7 December 2021;

b) its call on members from Greater Sydney, Newcastle, The Central Coast, Wollongong, the Southern Highlands and the Blue Mountains to rally in Macquarie St, Sydney and for all other members to rally at designated regional centres across the state on 7 December 2021; and

c) its call on officers, councillors, association executive, fed reps, Women’s contacts and FWC members to mobilise the membership.

3. Without limiting the steps required to be taken by order 2, the Federation must take the following steps by 4pm on 30 November 2021:

a) remove any reference to the 24-hour strike to occur on 7 December 2021 from its website or any documents linked to its website including the document titled “Why we must take industrial action over salaries and workloads” dated 27 November 2021 and the media release titled “Teachers to strike over workload, salaries, and shortages” dated 27 November 2021;

b) remove any reference to the 24-hour strike to occur on 7 December 2021 from the morethanthanks.com.au website.

c) publish in a prominent position on its website and the morethanthanks.com.au website, the Federation’s Facebook and Twitter pages, Order A1 and a direction to members that they comply with those orders and not take industrial action during school hours.

d) Take all reasonable steps to send by email and mobile telephone message to all members of the Teaching Service a link to Order A1 and a direction to comply with those orders and not take industrial action during school hours.

4. The Federation, its officers, employees and agents, must not induce, advise, authorise, support, encourage, direct, aid or abet members of the Federation to organise or take industrial action contrary to Order A1.

5. Federation members of the Teaching Service must not induce, advise, authorise, support, encourage, direct, aid or abet other members of the Federation to organise or take industrial action contrary to Order A1.

6. These orders shall come into effect on and from 4:00pm on 29 November 2021 and shall remain in force until 4:00pm on 31 May 2022.

B. Pursuant to s 136(1) of the Industrial Relations Act, the Commission makes the following directions:

1. The Federation must, by no later than 5:00pm on 29 November 2021, provide or cause to be provided a copy of Orders A1, A2, A3, A4, A5, A6 and A7 above to Federation Representatives employed by the Notifier, all members of the Federation Executive and all members of the Federation State Council.

2. The Federation must advise the Notifier’s legal representative in writing by 4:00pm on 2 December 2021 of the steps taken to comply with Orders A2, A3 and A4 above, including the form of communications, and if written, a copy of any communications, and the further steps it intends to take (if any) to comply with Order A2, A3 and A4 in respect of any relevant member who, by that time, has not been notified.”

(the emphasis is in the original)

13. Reasons for the decision to make the orders have not issued. The transcript of the proceedings concerning the industrial dispute was not placed in evidence before the Court as apparently there were some difficulties with transcription and the record was patchy.

14. The orders made under s 137(1)(a) shall hereafter be described as “the dispute orders” and the directions made under s 136(1)(a) shall hereafter be referred to as “the directions”. The order so designated shall be described as such and the particular components of it (being orders and directions) shall be described by the alphabetical and numerical designation given in the order such as Order A1 or Direction B1.

15. On 30 November 2021, the Federation issued a Member Alert to its members, which stated, inter alia, “We cannot be deterred” and “We must come together as one on Tuesday 7 December and send the Government a message they can’t ignore”.

16. The Federation did not take steps by 4pm on 30 November 2021 to issue a public statement which retracted and revoked its:

1. direction to members to strike for 24 hours on 7 December 2021;

2. its call on members from Greater Sydney, Newcastle, The Central Coast, Wollongong, the Southern Highlands and the Blue Mountains to rally in Macquarie St, Sydney and for all other members to rally at designated regional centres across the state on 7 December 2021; and

3. its call on officers, councillors, association executive, fed reps, Women's contacts and Fair Work Commission (“FWC”) members to mobilise the membership.

17. The Federation did not take steps by 4pm on 30 November 2021 to:

1. remove any reference to the 24-hour strike to occur on 7 December 2021 from its website or any documents linked to its website including the document titled ‘Why we must take industrial action over salaries and workloads" dated 27 November 2021 and the media release titled "Teachers to strike over workload, salaries, and shortages" dated 27 November 2021;

2. publish in a prominent position on its website and the morethanthanks.com.au website, the Federation's Facebook and Twitter pages, Order A1 and a direction to members that they comply with those orders and not take industrial action during school hours; and

3. take all reasonable steps to send by email and mobile telephone message to all Federation members employed by the Teaching Service, a link to Order A1 and a direction to comply with those orders and not take industrial action during school hours.

18. On 2 December 2021, the Prosecutor filed an application for a new three-year award to be known as the Crown Employees (Teachers in Schools and Related Employees) Salaries and Conditions Award 2022: Case No. 2021/00290044 (“the new award”) which, if granted, would increase salaries by 2.5% comprising of an increase of 2.04% in salaries and 0.5% to the Superannuation Guarantee Contribution in each year of the new award.

19. On 7 December 2021, a 24 hour strike and multiple rallies occurred across the State of New South Wales, organised by the Federation. There were 43,809 teachers who participated in the strike, which represented 67.08% of the teaching service.

20. Approximately 550,0000 students, which equates to 86% of public-school students across the State were absent as a result of the strike action.

21. The strike was part of the Federation’s “morethanthanks” campaign, which supports the Federation’s claim for:

1. minimum salary increases of 5% per annum with an additional 2.5% per annum to further recognise and reward experience and leadership. It was proposed dual qualified school counsellors and Senior Psychologists, Education (“SPE”) be paid at a new rate pegged at head teacher/assistant principal and deputy principal salary rates respectively.

2. minimum two hours per week additional release from face-to-face teaching for primary and schools for specific purposes teachers, along with a reduction of two hours per week in the current maximum face-to-face teaching loads for all secondary teachers (including head teachers and deputy principals). “Non face-to-face” teaching time for primary executive staff was claimed to match that of secondary executive staff and appropriate adjustments were to be made for teaching principals.

22. The “additional 2.5 per cent per annum to further recognise and reward experience and leadership” in the Federation’s claim was to be applied to teachers at Band 2.3 (representing the top of the teacher salary scale), Band 3 (Highly Accomplished/Lead), teachers in school based and non-school based promotions positions and Principals.

23. The “morethanthanks” campaign shall herein after be described in that way or as “the Federation’s claim”.

24. I will return to the statutory scheme momentarily, but broad observations may be made at this juncture as to the regulatory framework for the resolution of claims for new awards and improved salaries and conditions and the nature of the present proceedings.

25. The power of the Commission to entertain the application for a new award may arise by virtue of the application to the Commission or alternatively it may arise in the course of an arbitration by the Commission under Ch 3 of the Act to resolve an industrial dispute (see respectively s 11(1) and s 136(1)(b) of the Act).

26. The Commission may make an award in accordance with the Act setting out fair and reasonable conditions of employment for employees (s 10). However, the effect of s 146C(7) of the Act is that the award making powers of the Commission contained in s 10 are constrained by s 146C and any policy is declared in a regulation which the commission is required to give effect to: The Public Service Association and Professional Officers’ Association Amalgamated (NSW) v Director of Public Employment (2012) 250 CLR 343; [2012] HCA 58 at [17] and [58]. Such a regulation was promulgated as the Industrial Relations (Public Sector Conditions of Employment) Regulation 2014 (“the Regulation”).

27. Clause 6 of the Regulation, declares a policy for the purposes of s 146C(1) of the Act. It prohibits any awarded increase from increasing employee related costs by more than 2.5% per annum. Employee related costs are defined in cl 8 of the Regulation. Those matters need not be covered by an award: Secretary of the Treasury v Public Service Association and Professional Officers’ Association Amalgamated Union of NSW (2014) 89 NSWLR 688; [2014] NSWCA 138 (“Secretary of the Treasury”) at [37].

28. Clause 6(1)(b) of the Regulation permits awards which increase employee related costs by more than 2.5% if sufficient employee related cost savings have been achieved, which fully offset the increased employee related costs, whether such savings are made before or after such award was made: Secretary of the Treasury at [39].

29. Based upon those considerations the Prosecutor submitted that the Federation’s wage claim is not wholly outside the jurisdiction of the Commission. That proposition may not be gainsaid, but, in the light of the provisions of s 146C of the Act and the policy promulgated by the Regulation as to the Commission’s power to grant the Federation’s claims (if, in fact, the Federation made an application in terms of some or all its earlier stated claims) or, for that matter, the Commission’s power to grant any application by the employer, beyond an increase in employee related costs of 2.5% per annum, is highly circumscribed.

THE PRESENT PROCEEDINGS

30. By an amended summons filed on 9 December 2021 (“the amended summons”), the Prosecutor sought, inter alia, the imposition of a monetary penalty in accordance with ss 139(3)(e) and 139(4) of the Act “as the Court thinks appropriate in all the circumstances”. In written submissions, the Prosecutor sought a penalty in the amount of $150,000 to $175,000 be imposed on the Federation.

31. The Prosecutor alleged six contraventions in the amended summons. Omitting the particulars of the alleged contraventions, but using the alphabetical ordering system in the summons, they were expressed as follows:

(A)   Failed to cease organising and refrain from taking industrial action and continued to induce, etc the industrial action (contravention of Orders A1 and A4)

1. On 29 November 2021, the Federation contravened Orders A1 and A4 of the dispute orders in force, by:

1. not ceasing to organise and refrain from taking industrial action that relates to the Federation's current wage claims for employees of the Teaching Service, including the 24 hour strike to occur on 7 December 2021; and

2. continuing to induce, advise, authorise, support, encourage, direct, aid and abet members of the Federation to organise industrial action, namely the 24 hour strike on 7 December 2021.

(B)   Failed to retract its direction to members to strike for 24 hours (contravention of Order A2)

2. The Federation has contravened Order A2, by failing to issue a public statement which retracts and revokes its: a. direction to members to strike for 24 hours on 7 December 2021;

3. its call on members from Greater Sydney, Newcastle, The Central Coast, Wollongong, the Southern Highlands and the Blue Mountains to rally in Macquarie St, Sydney and for all other members to rally at designated regional centres across the state on 7 December 2021; and

4. its call on officers, councillors, association executive, fed reps, Women's contacts and FWC members to mobilise the membership.

(C)   Failed to remove references to 7 December strike from Federation website (contravention of Order A3(a))

5. The Federation has contravened Order A3(a), by failing to remove any reference to the 24 hour strike to occur on 7 December 2021 from its website or any documents linked to its website.

(D)   Failed to take reasonable steps to send a message to all members providing a link to the orders (contravention of Order A3(d))

6. The Federation has contravened Order A3(d), by failing to take all reasonable steps to send by email and mobile telephone message to all members of the Teaching Service a link to Order A1 and a direction to comply with those orders and not take industrial action during school hours.

1. (E)   Failed to publish orders and directions on Federation Website, Facebook, Twitter and "morethanthanks" website (contravention of Order A3(c))

1. The Federation has contravened Order A3(c) by failing to publish in a prominent position on its website, the morethanthanks.com.au website, the Federation’s Facebook and Twitter pages, Order A1 and a direction to members that they comply with those orders and not take industrial action during school hours.

(F)   Failed to refrain from taking industrial action, including the 24hour strike on 7 December 2021 (contravention of Order A1)

2. The Federation has contravened Order A1 by not refraining from taking industrial action including the 24 hour strike to occur on 7 December 2021.

32. The alleged contravention will be referred to in this judgment either by reference to their alphabetical descriptor, such as Contravention A or by their ordering appearing in the summons, such as the first contravention.

33. Given one of the issues in these proceedings (see issue (b) below), it is necessary to set out the particulars for the alleged contravention of Orders A1 and A4 (referred to as the first nominated contravention above). Those particulars are as follows:

a) On 29 November 2021, the Defendant caused an article to be published in the Sydney Morning Herald, title “NSW teachers plan to defy order to scrap next week’s strike”.

b) On 30 November 2021, the Defendant issued a Member Alert to its members, which stated, inter alia, “We cannot be deterred” and “We must come together as one on Tuesday 7 December and send the Government a message they can’t ignore”.

c) On 30 November 2021, an article published by the Newcastle Herald, titled “NSW teachers plan to strike” quoted the president, Mr Andrew Gavrielatos as stating that next Tuesday “will be the first 24-hour stoppage in a decade”.

d) On 30 November 2021, at or about 7:58am a radio segment on ABC Radio Sydney Breakfast hosted by Wendy Harmer and Robbie Buck, featured an interview with Andrew Gavrielatos, who confirmed that strike action planned for 7 December 2021 would proceed.

e) On 1 December 2021, an article published by the Newcastle Herald titled "Teacher Strikes set to proceed" quoted the Federation Organiser, an authorised official of the union, Jack Galvin Waight, confirming that the strike will go ahead.

f) On 1 December 2021, an article was published by the Illawarra Mercury, titled "Teachers' 24-hour strike expected to go ahead", quoted the President of the Illawarra Teachers Association, Ms Elizabeth Scott, discussing the teachers strike on 7 December 2021.

g) On 1 December 2021, at or about 3:00 pm, the Federation Facebook page had a link to a video titled "Tuesday's strike is all about teachers, students and the future of our profession".

h) On 1 December 2021, at or about 4:17pm the Federation Twitter website contained a post of Ms Julie Ross, understood to be a member of the Defendant and member of the Teachers Federation Executive with respect to why Ms Ross will be participating in the strike on 7 December 2021.

i) On 2 December 2021, published on the Federation website was information regarding venues for the strike meetings on 7 December 2021.

j) On 2 December 2021, published on the "Morethanthanks" website was information regarding venues for the strike meetings on 7 December 2021.

k) On 2 December 2021 at or about l.43pm, published on the Federation website were links to venues for teacher rallies in regional areas across New South Wales to take place on 7 December 2021.

I) On 2 December at or about 4.30pm, published on the Federation's Facebook page was a post advertising the teachers strike planned to take place on 7 December 2021.

m) On 2 December 2021 at about 4.30pm, published on the Federation's Twitter page were posts advertising the teachers strike planned to take place on 7 December 2021

n) On 2 December 2021 at about 4.30pm, published on the Federation website were links to articles titled "Teachers to strike over workload, salaries, and shortages".

o)   Prior to 7 December 2021, the Federation booked various venues across regional New South Wales for its members to attend rallies on 7 December 2021.

p)   On 3 December 2021, at or about 11:04am, the Federation website had listed under "Venues for 7 December action" the Lismore Turf Club as one of the venues where members were directed to meet.

q)   On 3 December 2021 at or about 4:18pm, Federation FaceBook page and contained post, with the following words: "Each teacher should have time to do their job well. Walk out on Tuesday to make the government wake up on the workloads."

r)   On 3 December 2021 at or about 4:20pm, the Federation FaceBook page, contained a post. with the following words: "Anyone notice the 3 minutes a day they claim they have saved you? Walk out on Tuesday to make the government wake up on the workload."

s)   On 3 December 2021 at or about 4:05pm, the Federation Website published information regarding venues for the teachers strike meetings on 7 December 2021.

t)   On 3 December 2021 at or about 4:08pm, 4:11pm, 4:12pm and 4:13pm the Teachers Federation Twitter page published multiple posts advertising the teachers strike planned for 7 December 2021. One of the posts was of Ms Emily Mayo, and it read, "Just qot a message from our #nswpol school that they will be all out on Tuesday December 7. Rushed to leave a message at the gates. ''MoreThanThanks - Solidarity with @TeachersFed”. In addition, a post of the Teachers Federation advertised the teachers strike planned for 7 December 2021.

u)   On 6 December 2021, at or about 6:08am, a radio segment on ABC Radio featured Carol Matthews, Acting Secretary of the NSW/ACT ranch [sic] of the Independent Education Union, who said words to the effect that "I certainly would predict that there would be protected industrial action in the Catholic systemic area in term one of 2022".

v)   On 6 December 2021, at or about 8:24am a radio segment on 2GB Radio, hosted by Ben Fordham, featured an interview with the Teachers Federation President Angelo Gavrielatos who discussed the proposed strike of 7 December 2021.

w)   On 6 December 2021 at or about 11:32, the Federation website had listed under "Venues for 7 December action" the Bathurst Showground as one of the venues where members were directed to meet.

x)   On 6 December 2021 at about 11:46am. Federation website had listed under "Venues for 7 December action" the Tweed River Jockey Club at Murwillumbah as one of the venues where members were directed to meet.

y)   On 6 December 2021 at or about 11:52am, the Federation Website had listed under "Venues for 7 December action" the Panthers at Port Macquarie as one of the venues where members were directed to meet.

z)   On 6 December 2021 at or about 12:00pm, the Federation Website had listed under "Venues for 7 December action" the Queanbeyan Bicentennial Hall as one of the venues where members were directed to meet.

aa)   On 6 December 2021, at or about 5:00pm, the Federation's Facebook page had a post of 3 December 2021 at 4:21pm which contained words, "We need action. not words Turnout on December 7 to send a message to the premier."

bb)   On 6 December 2021, at or about 4:56pm, the Federation FaceBook page had a post with a video, "Tuesday strike is all about teachers, students and the future of our profession", which had been posted on 1 December 2021.

cc)   On 6 December 2021. at or about 4:51pm. 4:52pm, 4:53pm, 4:54pm and 4:55pm, the Federation's Twitter page had multiple posts advertising the teachers strike planned for 7 December 2021.

dd)   On 6 December 2021 at or about 7:02pm, 2GB Radio featured an interview with President of the Teachers Federation, Angelo Gavrielatos. The host announced the show by saying "The Teachers Federation cannot rule out more industrial action in the new year". Mr Gavrielatos did not disagree with this announcement.

ISSUES

34. Putting aside for present purposes considerations that may ordinarily arise in the context of sentencing for a contravention of a dispute order (or direction made under s 136(1)(a)), the following issues in the proceedings (as well as a concession) were distinctly identified by Mr S Crawshaw SC who appeared for the Federation as follows (converted to the form used in this judgment):

1. Order A1 was invalid and therefore that orders A2, A3 and A4, which are ancillary and/or facilitative to Order A1, are also invalid.

2. Alternatively, in the event that Order A1 is valid, the Federation admits that the Order was contravened.

3. Orders A2, A3 and A4 were ancillary and/or facilitative to Suborder A1 and contraventions of Orders A1, A2, A3 and A4 are part of the same course of conduct. Assuming that the Prosecutor can establish contraventions on eight days, the maximum penalty available for these contraventions against the Federation, as a first time contravener, is $45,000.

4. If, contrary to (iii), the Court determines not to follow the analysis in Australian Workers’ Union (NSW) v Bluescope Steel (AIS) Pty Ltd [2006] NSWIRComm 71 (“Bluescope”) and treats borders A2 and A3 as creating separate and distinct obligations, Suborders A2 and A3 are invalid.

5. In the alternative to (2) and (4), if orders A2 and A3 were valid and created separate and distinct obligations, they were capable of being contravened only once, by the Federation not taking the steps they directed by 30 November 2021. Presuming the orders A2 and A3 are separate and distinct as between themselves and that the prosecutor can establish contraventions on eight days, the maximum penalty available against the Federation, as a first time contravener, is $65,000.

6. In addition, no conduct is particularised in the amended summons as having occurred in breach of the Order on 4 and 5 December 2021. Any suggestion that the Court should order that penalties be imposed for contraventions on these days must be rejected and the contraventions can only have occurred over six days. Therefore, the maximum penalty available under (2) above is $35,000 and the maximum penalty available under (5) above is $55,000.

35. The Prosecutor identified three broader issues which were encompassed in the Federation’s list of issues (Contravention A being admitted subject to questions of validity):

1. Were the orders validly made?

2. Should the contraventions by the Federation be properly characterised as six separate contraventions (the Prosecutor also advanced an alternative contention that there were three groups of contraventions) or, as the Federation contended, in the case of Orders A2 and A3, ancillary or facilitative orders forming part of a single exercise of power under s 137(1) of the Act (with Order A1) or there being a single incursion into unlawful conduct “with all contraventions arising from the same or a single course of conduct”?

3. The appropriate penalty having regard to applicable sentencing principles including the applicable maximum penalty for any contraventions for the purpose of s 139(4) of the Act (in that respect whether s 139(4)(a) or (b) applied).

36. The Court will address the first and second of those broader issues after considering the scheme of the Act and relevant sentencing principles under which topic the third issue of the applicable maximum penalty for the offences will be addressed.

STATUTORY SCHEME AND RELEVANT SENTENCING PRINCIPLES

Statutory construction

37. The Court will consider various questions raised in these proceedings involving questions of statutory interpretation including the abovementioned issue. In that respect, I will adopt the statement of principles set out in Director of Public Prosecutions v Zheng [2021] NSWSC 131 at [37]-[38] which is in the following terms:

[37] The general principles as to statutory construction were set out in The Commissioner of the Australian Federal Police v Pharmacy Depot Hurstville Pty Ltd (in liq) (No 2) [2020] NSWSC 1571 at [32]-[35], as follows:

[32] The principles of statutory construction were outlined by French CJ and Hayne J (with whom Kiefel J agreed in this respect) in Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross; Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Thelander (2012) 248 CLR 378; [2012] HCA 56 at [23]-[26], as follows:

[23] It is as well to begin consideration of this issue by re-stating some basic principles. It is convenient to do that by reference to the reasons of the plurality in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (at [47]):

“This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.”

[24] The context and purpose of a provision are important to its proper construction because, as the plurality said in Project Blue Sky, “[t]he primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute”. That is, statutory construction requires deciding what is the legal meaning of the relevant provision “by reference to the language of the instrument viewed as a whole”, and “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”.

[25] Determination of the purpose of a statute or of particular provisions in a statute may be based upon an express statement of purpose in the statute itself, inference from its text and structure and, where appropriate, reference to extrinsic materials. The purpose of a statute resides in its text and structure. Determination of a statutory purpose neither permits nor requires some search for what those who promoted or passed the legislation may have had in mind when it was enacted. It is important in this respect to, as in others, to recognise that to speak of legislative “intention” is to use a metaphor. Use of that metaphor must not mislead. “[T]he duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have”. And as the plurality went on to say in Project Blue Sky:

“Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the word of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.”

To a similar effect, the majority in Lacey v Attorney-General (Qld) said:

“Ascertainment of legislative intention is asserted as a statement of compliance with the rules of construction, common law and statutory, which have been applied to reach the preferred results and which are known to parliamentary drafters and the courts.”

The search for legal meaning involves application of the processes of statutory construction. The identification of statutory purpose and legislative intention is the product of those processes, not the discovery of some subjective purpose or intention.

[26] A second and not unrelated danger that must be avoided in identifying a statute's purpose is the making of some a priori assumption about its purpose. The purpose of legislation must be derived from what the legislation says, and not from any assumption about the desired or desirable reach or operation of the relevant provisions.… (footnotes omitted)

[33] The High Court, in recent years, has repeatedly stressed the importance of reading the statutory text having regard to considerations of context and purpose. In SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 (“SZTAL”), the plurality (Kiefel CJ, Nettle and Gordon JJ) said (at [14]):

[14] The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected. (footnotes omitted)

[34] In SZTAL, Gageler J (who was in the minority but not as to the principles of statutory construction) also observed (at [37]-[39]):

[37] Both of those passages have been "cited too often to be doubted". Their import has been reinforced, not superseded or contradicted, by more recent statements emphasising that statutory construction involves attribution of meaning to statutory text. The task of construction begins, as it ends, with the statutory text. But the statutory text from beginning to end is construed in context, and an understanding of context has utility "if, and in so far as, it assists in fixing the meaning of the statutory text".

[38] The constructional choice presented by a statutory text read in context is sometimes between one meaning which can be characterised as the ordinary or grammatical meaning and another meaning which cannot be so characterised. More commonly, the choice is from "a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural", in which case the choice "turns less on linguistic fit than on evaluation of the relative coherence of the alternatives with identified statutory objects or policies".

[39] Integral to making such a choice is discernment of statutory purpose. The unqualified statutory instruction that, in interpreting a provision of a Commonwealth Act, "the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation"[40] "is in that respect a particular statutory reflection of a general systemic principle". (footnotes omitted)

[35] As to context in particular, in Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 at [39], the High Court stated:

[39] This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text". So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself. (footnotes omitted)

[38] In Application of the Securities and Exchange Commission of the United States of America under the Evidence on Commission Act 1995 (NSW) (No 2) [2020] NSWSC 1500, this Court also observed at [179]:

[179] As McHugh J observed in Kelly v The Queen (2004) 218 CLR 216; [2004] HCA 12 at [103], “the functions of a definition is not to enact substantive law” (see Gibb v Federal Commission of Taxation (1966) 118 CLR 628 at 635; [1966] HCA 74). Statutory definitions are subject to qualification where a definition is used in a context which renders the definition inapplicable (see s 5(2) of the Interpretation Act and Council of the Law Society of New South Wales v Bouzanis (2017) NSWLR 488; [2017] NSWCA 330 at [45] (per Basten JA)), such that the definition may be excluded by implication: Tovir Investments Pty Ltd v Waverly Council [2014] NSWCA 379 (“Tovir”) at [17] (per Basten JA), when a contrary statutory intention is apparent: Tjungarrayi v Western Australia (2018) 266 ALR 603; [2019] HCA 12 at [89] (per Nettle J). There is no simple formula for determining what is a contrary intention: Deputy Commissioner of Taxation v Mutton (1988) 12 NSWLR 104 at 108 (per Mahoney JA). However, the ease or difficulty of fitting a definition into a particular operative provision may be a primary basis for deciding whether a definition should be excluded by implication; although “one is likely to require some understanding of the meaning of the definition itself”: Tovir at [17].

38. Thus, and stated shortly, and without depreciation of those statements of principle, the correct approach to the construction of a statutory provision must start and end with the statutory text, considered in context, and by reference to the purpose of the provision whether stated expressly in the statute or by implication.

The Scheme

39. Section 3 sets out the objects of the Act. It provides as follows:

3 Objects

The objects of this Act are as follows—

(a) to provide a framework for the conduct of industrial relations that is fair and just,

(b) to promote efficiency and productivity in the economy of the State,

(c) to promote participation in industrial relations by employees and employers at an enterprise or workplace level,

(d) to encourage participation in industrial relations by representative bodies of employees and employers and to encourage the responsible management and democratic control of those bodies,

(e) to facilitate appropriate regulation of employment through awards, enterprise agreements and other industrial instruments,

(f) to prevent and eliminate discrimination in the workplace and in particular to ensure equal remuneration for men and women doing work of equal or comparable value,

(g) to provide for the resolution of industrial disputes by conciliation and, if necessary, by arbitration in a prompt and fair manner and with a minimum of legal technicality,

(h) to encourage and facilitate co-operative workplace reform and equitable, innovative and productive workplace relations.

40. Section 6 contains a definition of “industrial matters”. It defines industrial matters as “matters or things affecting or relating to work done or to be done in any industry, or the privileges, rights, duties or obligations of employers or employees in any industry”.

41. Part 1 of Ch 2 deals with awards. As mentioned, s 10 provides that awards made by the Commission are to set “fair and reasonable conditions of employment”. Section 14 requires awards to contain dispute resolution procedures, which must include procedures for the involvement of industrial organisations. An industrial organisation is defined by the Dictionary to the Act to include an “industrial organisation of employees” registered under Ch 5 of the Act. The Federation is such an organisation.

42. Chapter 3 deals with industrial disputes. The Dictionary to the Act defines “industrial dispute” in the following terms:

industrial dispute means a dispute (including a question or difficulty) about an industrial matter, and includes the following:

(a) a demarcation dispute,

(b) a threatened or likely industrial dispute,

(c) a situation that is likely to give rise to an industrial dispute if preventative action is not taken.

43. Part 1 of Ch 3 deals with conciliation and arbitration of industrial disputes. Section 130(1)(a) empowers an industrial organisation of employers or employees to notify the Commission of a dispute. In this case, the Prosecutor was an employer who is or is likely to be affected by the dispute and had standing to and did notify the existence of a dispute under s 130(1)(b). The Prosecutor used Form 4 to notify the existence of a dispute but it may have done so in other written forms such as letters or emails or orally provided written confirmation was given (see r 5.3 of the Rules). The Federation was identified as a person affected by or involved in the industrial dispute in the relevant part of the form.

44. Section 132 provides for compulsory conferences for the purpose of resolving a dispute. Section 133 provides that the Commission must first attempt to resolve the dispute by “conciliation”. The Act does not define “conciliation”. Section 134 confers certain powers on the Commission to facilitate the conciliation process.

45. Sections 135 and 136 deal with the arbitration process which occurs after an attempted conciliation. They are in the following terms:

135 Arbitration after attempted conciliation

(1) The Commission is to deal with an industrial dispute by arbitration only if it is not resolved by conciliation.

(2) Arbitration by the Commission is not to proceed until the Commission has issued a certificate that reasonable attempts have been made to resolve the industrial dispute by conciliation (certificate of attempted conciliation).

(3) A certificate of attempted conciliation is to be provided to the Chief Commissioner unless the Commission is constituted by the Chief Commissioner.

(4) When determining whether to issue a certificate of attempted conciliation, the Commission must consider the effect that any industrial action in connection with the industrial dispute is having on the parties and the public generally. In particular, the Commission must give urgent consideration to the effect of industrial action in connection with a demarcation dispute.

(5) A certificate of attempted conciliation may be issued on the Commission’s own initiative or on application by any person authorised to notify the Commission of the industrial dispute.

(6) The Commission must, without delay, issue a certificate of attempted conciliation on the application of any such person if the person satisfies the Commission that there is no reasonable likelihood that the dispute will be resolved by conciliation.

(7) The Commission must, without delay, issue a certificate of attempted conciliation if the Commission decides that industrial action or duress necessitates the exercise of its arbitral powers.

(8) The parties to the proceedings are to be provided with a copy of any certificate of attempted conciliation.

(9) Nothing in this Act prevents the exercise of conciliation powers merely because arbitration powers have been exercised under this Act.

136 Arbitration of dispute

(1) The Commission may, in arbitration proceedings, do any one or more of the following:

(a) make a recommendation or give a direction to the parties to the industrial dispute,

(b) make or vary an award under Part 1 of Chapter 2,

(c) make a dispute order under Part 2,

(d) make any other kind of order it is authorised to make (including an order made on an interim basis).

(2) Any such action may be taken by the Commission on its own initiative or on application by any person authorised to notify the Commission of the industrial dispute.

46. Section 135(2) provides that the Commission may not proceed to arbitration until a certificate that reasonable attempts have been made to “resolve the industrial dispute by conciliation” has been issued. As earlier mentioned, the Certificate was issued with respect to the industrial dispute under which the Commission undertook arbitral proceedings and therein made the dispute orders and directions.

47. Whilst the Certificate is not before the Court, the relevant Form (Form 50) provides that the member certify that reasonable attempts have been made to resolve the industrial dispute by conciliation and provides that, if necessary, the certificate may set out relevant details of the attempted conciliation including, by example, the “conduct of the parties”.

48. Having regards to the issues raised by the Federation as to the validity of the orders, the following additional aspects of s 135 should be mentioned:

1. The mechanism of the issuing of a certificate ensures that reasonable attempts have been made to resolve the industrial dispute by conciliation (see s 135(2) and (6)) and that there is a clear distinction drawn between conciliation and arbitration (see ss 135 (1), (2), (3), (8) and (9)).

2. The determination to issue a certificate lies in the discretion of the Commission. The exercise of that discretion is guided by what the Commission considers constitutes “reasonable attempts”. That assessment will undoubtedly be informed by issues such as the complexity of the industrial dispute and the effect of any actual or anticipated industrial action on “the parties” (see s 135(4)) and the public generally (s 135(4)).

3. An application for a certificate may be made by any person authorised to notify the Commission of a dispute which includes any entity referred to in s 135(6).

4. Copies of the certificate are to be issued to “the parties” and the “Chief Commissioner”.

49. The Federation submitted the arbitration of the industrial dispute which was the subject of conciliation and the following issue of the Certificate is between one or more parties and the power to arbitrate is directed to resolving the dispute between those particular parties. It was submitted if a person or persons is not issued with a certificate under s 135 of the Act, they are not and cannot be parties to the industrial dispute.

50. Reliance was placed, in that respect, upon the provisions of s 134 (and in particular s 134(2) which permits the Commission in conciliation proceedings to make a recommendation or give a direction to the parties to an industrial dispute), s 135 (and in particular the provisions of s 135(8) which requires that any certificate of attempted conciliation is to be provided to “the parties” to the dispute) and s 136(1)(a) which provides that the Commission may make recommendations or directions in arbitral proceedings directed to “the parties” to the industrial dispute. It was submitted that those parties are those which are provided a copy of the certificate of attempted conciliation and who have participated or been given the opportunity to participate in conciliation of the dispute.

49. The Dictionary of the Act does not define a “party” or “parties” but rather provides a definition of “a party to an industrial instrument” as including a successor of a party to the instrument. The meaning of the expression within Pts 1 and 2 of Ch 3 of the Act is, therefore, a matter of statutory construction.

50. The mechanisms provided by Pt 1 to “notify” a dispute do not constitute, in my view, a process akin to strictly inter parte proceedings between a plaintiff and defendant. That consideration may be firstly illustrated by reference to some examples of the processes of this Court.

51. In the Supreme Court Act 1970, it defined “party” under s 19(1) in the following terms:

party includes any defendant and any person against whom a claim for relief is made under section 78.

54. The definition of “party” was omitted from s 19(1) in the Supreme Court Act 1970 in an amendment in August 2015, as a consequence of the commencement of the Civil Procedure Act 2005 and the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”).

55. In the Civil Procedure Act 2005, a “party” or “parties” is not defined, however, it is referenced to in the context of a “party to the proceedings” and is actively involved in the proceedings. Under the Civil Procedure Act 2005, the Court can, inter alia, give orders and directions to a “party”. The Dictionary of the Civil Procedure Act also defines “plaintiff” and “defendant” in s 3(1), in the following terms:

3 Definitions

(1) In this Act—

defendant means a person against whom proceedings are commenced, and includes a person against whom a cross-claim is made.

…

plaintiff means a person by whom proceedings are commenced, or on whose behalf proceedings are commenced by a tutor, and includes a person by whom a cross-claim is made or on whose behalf a cross-claim is made by a tutor.

56. The UCPR does not provide a definition of “party” or “parties”, however, provides in the Dictionary a definition of an “active party” and “opposite party”. Those terms are extracted below:

active party, in relation to any proceedings, means a party who has an address for service in the proceedings, other than:

(a)  a party against whom judgment has been entered in the proceedings, or

(b)  a party in respect of whom the proceedings have been dismissed, withdrawn or discontinued,

being, in either case, a party against whom no further claim in the proceedings subsists.

opposite party means defendant (in relation to a plaintiff) and plaintiff (in relation to a defendant).

57. As mentioned, Pt 1 of Ch 3 of the Act is concerned with the conciliation and arbitration of industrial disputes. The process of engaging the Commission to deal with such disputes through a notification given under s 130(1) reflects the need to provide for agility and flexibility in the dispute resolution unencumbered by “technicalities and legal forms” (see s 162 of the Act).

58. Any organisation of employees or employers or State Peak Council may notify the existence of an industrial dispute. In this case, the notification was provided by the employer pursuant to s 130(1)(b). The ordinary meaning of notifying is, “make known, announce, report, or inform, give notice to” (Shorter Oxford Dictionary). The Macquarie Dictionary refers to giving notice or informing of something.

59. Those meanings sit comfortably within the context in which the expression is used in s 130(1), that is, to provide notice or advice to the Commission (formally or informally) so that it may act to resolve the industrial dispute, a process which involves consideration of the public interest consistently with the objectives of the Act (see ss 3(g) and 146(2)(a)).

60. Unlike the provisions of Ch 2 Pt 1 Div 1, there is not a process by which an application must be made to commence dispute proceedings or a standing requirement such that an industrial organisation of employees or employers must satisfy the Commission that it or any one or more of its members has a “sufficient interest” in the proposed award (see by contrast s 11(4)). An employer may notify a dispute if the employer “is or is likely to be affected by the dispute” (see s 130(1)(b)) but an industrial organisation has no such limitation applied to its standing to notify an industrial dispute. Any industrial organisation may apply for the issuing of a certificate of attempted conciliation, irrespective of the subject of the industrial dispute (the only requirement is an entity be “authorised” to notify the Commission of an industrial dispute (see s 135(5)). The expression “authorised” connotes standing to notify and thereby relevantly connects to the provisions of s 130(1).

61. The judgment of the Full Bench of the Industrial Relations Commission of NSW in The Director-General, NSW Department of Health, in respect of the Hunter New England Area Health Service and Australian Medical Association (NSW) [2008] NSWIRComm 112 (per Walton VP, Schmidt and Staff JJ) (“Hunter New England AHS”) is instructive in this respect.

62. That matter concerned an appeal from the dismissal of a motion by which it was sought to establish that the Australian Medical Association (NSW) Limited (“AMA”) a registered organisation of employers, could not notify an industrial dispute under s 130 of the Act, in relation to its members in there capacity as employees or represent those entities.

63. The Full Bench of the Commission made several observations regarding the statutory scheme for dispute resolution under the Act in that context.

64. In considering whether AMA could notify an industrial dispute to the Commission, the Full Bench observed (at [14]-[20]):

14 Neither s 130, the definition of industrial dispute, or the definition of industrial matter, is concerned with the question of who may be a party to an industrial dispute. Section 130 rather deals with notification of disputes to the Commission. In the case of employers, they may only notify a dispute if they are, or are likely to be affected by the dispute, or are, or are likely to be the subject of a secondary boycott, in connection with the dispute. There are no such limitations imposed in the case of industrial organisations, or State Peak Councils.

15 The argument advanced by the appellant requires that a limitation be read into s 130, namely, that an industrial organisation may only notify a dispute to which it is a party. This, it was argued, flowed from the scheme of the Act, which establishes a system of registration of organisations of employers and employees and does not envisage that the one organisation may represent both the interests of employers and employees (see Chapter 5 Industrial Organisations). It also envisages that the Commission may make demarcation orders, in the case of organisations representing employees, for example, demarking their respective industrial interests (ss 144 and 294), but cannot make such orders as between organisations of employers and employees.

16 Even accepting these features of the Act, the result that the seemingly clear and unambiguous words of s 130 should be read down, in the way proposed by the appellant, in our view is neither an obvious or appropriate approach to the construction of this part of the Act, particularly when other provisions of the Act are considered. The appellant's arguments seemed to us, entirely inconsistent with the purpose of s 130.

17 The provisions of s 130 may also be contrasted with the provision made in s 11 of the Act, which regulates who might make an application to the Commission for the making of an award fixing conditions of employment. That section provides:

11 When award may be made

(1) An award may be made:

(a) on application to the Commission or on the Commission’s own initiative, or

(b) in the course of an arbitration by the Commission under Chapter 3 to resolve an industrial dispute.

(2) An application for an award may be made only by:

(a) an employer, or

(b) an industrial organisation of employers or employees, or

(c) a State peak council.

(3) Anyone who can apply for an award may become a party to any proceedings for making an award.

(4) An applicant for an award, or to become a party to the making of an award, is required to satisfy the Commission that it or any one or more of its members has a sufficient interest in the proposed award.

18 It is apparent from s 11, that if an application for an award is made by an industrial organisation, either directly, or during the course of an arbitration under s 136 of the Act, following the notification of a dispute, the organisation must demonstrate that 'any one or more of its members has a sufficient interest in the proposed award'. Such a limitation is not, however, imposed in relation to the earlier notification of the dispute under s 130 of the Act. Had the legislature intended such a limitation at the time of dispute notification, undoubtedly it could have said so. That it chose to adopt another approach, is a matter which cannot be overlooked and must be given effect.

19 Such a dichotomy of approach as to who might bring proceedings in the Commission, is entirely consistent with the scheme of the Act, which on the one hand encourages and regulates the role of organisations, in representing their members' interests, but on the other, seeks to ensure that disputes are easily and quickly able to be brought to the attention of the Commission, by the wide class of persons specified in s 130.

20 Furthermore, it is entirely logical that an industrial organisation might wish to bring the existence of a dispute to the Commission, even if it is not a party to that dispute. Its members might, nevertheless, be affected by the dispute, or its potential resolution. An organisation's interests and concerns might also permit it to intervene in dispute proceedings, or might result in the Commission concluding that it is an entity which might assist in the resolution of the dispute and so should be required to participate in the conciliation conference called by the Commission. Thereby, such an organisation might become a party to the proceedings. Once, however, a party wishes to seek an award, which regulates conditions of employment of employees, the Act is concerned, in s 11, to ensure that the applicant for the award has the necessary interest in what is so sought, namely, in the case of a registered organisation, the right to represent members with a sufficient interest in the subject matter of the award.

65. Further, the Full Bench observed as to the capacity of the AMA to participate in proceedings (at [37]-][39]):

37 Under the 1996 Act, if a dispute is notified to the Commission, or if it acts on its own initiative, in relation to any industrial dispute, in the first instance the Commission must conduct conciliation proceedings, in accordance with the provisions of s 132 of the Act:

132 Compulsory conference

(1) For the purpose of resolving an industrial dispute, the Commission may convene a compulsory conference and require the attendance of any person whose presence the Commission considers would help in the resolution of the dispute.

(2) A compulsory conference is to be presided over by a member of the Commission.

(3) The Commission may confer with any person on any matter that may affect the resolution of an industrial dispute, without requiring the person to attend a compulsory conference.

38 Who such persons might be, is a matter in every case, for the member of the Commission to whom the proceedings are allocated, in this instance, the President, to determine.

39 Section 133 requires the Commission to conciliate and s 134 directs that the 'parties to the dispute', be assisted in the conciliation. Who the parties to the dispute are, is a matter of fact, to be determined by the Commission in any particular case, on the material it receives in the proceedings. On appeal, the appellant argued that there is a union of employees, ASMOF, which has the right to represent doctors employed by the appellant, who are affected by the subject matter of this dispute. It was also not in dispute that the Staff Specialists (State) Award applies to certain doctors employed in hospitals, who are affected by this dispute. It would appear on this material, that even though not thus far identified as a party to the dispute, that ASMOF should be given the opportunity to participate in the dispute proceedings which concern its members.

66. As to the operation of ss 135 and 136 of the Act, the Full Bench stated (at [41]-[44]):

41 These provisions highlight three features important to any consideration of the operation of this aspect of the statutory scheme. Firstly, the emphasis placed on the public interest (s 135(4)). Secondly, that the proceedings may involve persons who are 'authorised to notify the Commission of the industrial dispute' (ss 135(4) and 136(2)), as well as other 'parties to the proceedings' (s 135(8) and 'parties to the industrial dispute' (s 136(1)(a)). Thirdly, that in arbitral proceedings, the Commission may also take action 'of its own initiative' (s 136(2)).

42 That the legislature has deliberately used all three phrases, those 'authorised to notify the Commission of the industrial dispute'; 'parties to the proceedings' and 'parties to the industrial dispute', in the pivotal provisions of the Act, which deal with arbitral proceedings, may not to be overlooked, when construing this Act. Their use was plainly deliberate. They are not terms which can comfortably be construed in such a way, that they are to be treated as if they are merely interchangeable. The Act clearly envisages that while a broad class of person may notify a dispute under s 130 of the Act, arbitral proceedings may involve other parties, including parties who are not themselves parties to the dispute.

43 This construction is confirmed by the appeal provisions made in s 187, which provide that an appeal may be bought from a decision made by the Commission in arbitral proceedings, by both parties to the proceedings and industrial organisations affected by the decision, even if not parties to the proceedings below.

44 Rule 24 of the Commission's Rules, further confirms our view of the legislation. The Rule provides:

24 Notification of dispute

(1) Notification of an industrial dispute under section 130 or 332 must state the parties affected by the dispute, the applicable industrial instrument, if any, and give relevant particulars of the dispute.

67. Provisions of Pt 1 of Ch 3 of the Act, reflect the broader public policy considerations underpinning the resolution of industrial disputes as emphasised by the object in s 3(g) of the Act, namely, to provide for the resolution of industrial disputes by conciliation and if necessary by arbitration in a prompt and fair manner with a minimum of legal technicality. The Commission is required, in determining whether a certificate of attempted conciliation is issued, to consider the effect of any industrial action in connection with the industrial dispute not only upon the parties but the public generally (see s 135(4)). As mentioned, s 146(2) directs the Commission to take into account the public interest in the exercise of its function to resolve industrial disputes (see s 146(1)(b) and (2)).

68. Further, Ch 3 of the Act emphasises the pivotal role of industrial organisations in the resolution of disputes. As mentioned, s 130 of the Act provides that an industrial organisation of employees or a state peak council may notify disputes. One of the Act’s objects is to encourage participation in industrial relations by representative bodies of employees and employers and to encourage the responsible management of democratic control of those bodies (see s 3(d)).

69. This discussion serves to establish the following propositions:

1. The notification of a dispute or the listing of parties affected on a Form 4 does not serve to ultimately confine the parties to an industrial dispute. It is not akin to an originating process in this or other courts which serves to define parties to proceedings (where the parties may be enlarged only by an approved application to join them r 6.27 of the UCPR).

2. Neither the notifying interest or the affected persons or entities in the industrial dispute process need to establish standing beyond the broad requirements of s 130(1). The Commission is empowered to identify the parties to an industrial dispute during the course of dealing with proceedings, as to the same, which may be wider than the parties mentioned in the notification.

3. A certificate of attempted conciliation may be issued at the behest of any interest authorised to notify the existence of an industrial dispute which may or may not be notifying intent. That same classes or interests may seek orders in arbitration proceedings (see s 136(2)).

4. Thus, as found in Hunter New England AHS, arbitral proceedings under Pt 3 of the Act, may include parties not the subject of the dispute notification or parties to the dispute as such. The proposition advanced by the Federation that only a person issued with a certificate of attempted conciliation may be parties to the arbitration as to an industrial dispute may not be accepted.

70. Similarly, industrial organisations may make an application to make or vary an award (s 11(2) and s 17(1) and (3) as will be discussed below).

71. Sections 137-139 are set out in Pt 2 to Ch 3. Part 2 is entitled “Dispute Orders”. As a heading to a Part of the Act, the heading of Pt 2 is taken to be part of the Act (s 35 Interpretation Act 1984 (NSW)).

72. Sections 137 and 138 provide 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.

(b) The Commission may order an employer to reinstate or re-employ any one or more employees who were dismissed in the course of the industrial dispute or whose dismissal resulted in the industrial dispute.

(c) The Commission may order an employer not to dismiss employees in the course of the industrial dispute if the employer has threatened to do so.

(d) The Commission may order a person to cease a secondary boycott imposed in connection with the industrial dispute.

(2) If employees are taking industrial action in connection with the industrial dispute, the Commission may order the employees to cease taking that industrial action before it makes any other kind of dispute order against the employer.

(3) A dispute order may not provide for the payment of compensation, lost remuneration or any other amount.

138 Making of dispute orders

(1) A dispute order may be made only against:

(a) a party or likely party to the industrial dispute, or

(b) a member, officer or employee of an industrial organisation that is such a party or likely party, or

(c) a person engaged, or likely to be engaged, in a secondary boycott in connection with the industrial dispute.

(2) A dispute order:

(a) must clearly identify the persons against whom the order is made and who are bound by the order, and

(b) must state a time within which the order is to be complied with or state a period during which it remains in force, and

(c) may be varied or revoked by the Commission at any time.

(3) If an employee is reinstated or re-employed under this Part, the Commission may order that the period of employment of the employee with the employer is taken not to have been broken by the dismissal.

73. The Federation correctly submitted that whilst the permissive word “may” appears in the preamble to s 137(1), the proper construction of that provision is that the types of orders described in s 137(1) are exhaustive when dealing with an industrial dispute, particularly given that the word “may” is used in s 137(1)(a),(b)(c) and (d), in a manner only consistent with the confinement of the order to a particular class. Again, s 138(1) does not employ the word “may” in a permissive sense. The provision deals with a defined and an exclusive class as illustrated by the use of the word “only”.

374. The 24 hour strike on 7 December 2021, was in the second last week of the school term of 2021.

375. I accept that some impact of the strike in terms of parents would have been alleviated, to some extent, as submitted by the Federation, by the coincidence of the holding of a bus strike in the South West and a train strike (apparently affecting 75% of the train network) and working from home arrangements for many members of the workforce as at 7 December 2021. I also accept that examinations both HSC and otherwise had been completed by that time.

376. However, the impact of the strike was widespread and resulted in the cessation of a great number of schools across NSW.

377. It was not only disruptive to educational delivery, but also interfered with schools holding or organising a range of end of year activities to bring the 2021 school year to a close. An example given by Ms Archibald was Year 6 Graduation ceremonies, although she only enumerated one specific incidence. I accept her evidence that these are important aspects of school life that support students’ wellbeing and connection with their schooling.

378. It may be reasonably inferred that the strike would have caused inconvenience to the community and particular working parents (including those working from home) who were then required to look after the children or obtain childcare for the period of the school day, as well as disadvantage to students, who were unable to attend school, with respect to educational delivery and end of year activities. I also consider it significant that this interruption occurred after children had been required to cope with significant periods of home learning during the COVID-19 pandemic.

Circumstances in which the relevant contravention took place

382. The Prosecutor contended that to breach orders of the Commission which are made as part of a framework of an industrial relations system, designed to protect and assist employees involved in industrial dispute, was an abuse which is not mitigated “by the conviction with which underlying political views are held”. It was submitted that the claims for the removal of cl 6 of the Regulation, are not capable of being arbitrated although are capable of redress via media and through political channels.

383. The Federation submitted that the action it took was a result of serious and well founded concerns about the related issues of inadequate salaries, teacher shortage and excessive workloads. It was submitted, therefore, the action was not taken capriciously lightly or as a result of frivolous concern. Reliance was also placed, as I have mentioned, upon the right to strike and the opportunities afforded, in that respect, under the Federal industrial relations system.

384. I accept that members of the Federation have brought claims against their employer with respect to the above mentioned issues, which genuinely reflect concerns about those matters and that the Federation is earnestly seeking to improve the conditions of its members, in those respects, in the context of an industrial system in which the arbitral powers of the Commission as circumcised by historical standards. However, that does not afford a justification for the contravention of orders validly made by the Commission in the context of a system which offers the members of the Federation (and the Federation itself by its registration) access to a comprehensive system of conciliation and arbitration which affords protection and assistance in the context of industrial disputes and recourse with respect to contested actions of the employer.

385. The Federation is entitled to prosecute its views about the availability of arbitral processes in the Commission, in the media and through legitimate political channels but its deliberate defiance of orders of the Commission is inconsistent with its role as a registered industrial organisation under the NSW industrial relations system and the maintenance of the integrity of that legal system.

386. Reference to the accessibility to industrial action in support of wage or other claims under the Federal industrial laws, does not assist the Federation as that system and the Act became divergent systems of industrial regulation decades ago operating under significantly different parameters (see Pastoral Industry (State) Award Application by Australian Business Industrial for a new award and another matter [2001] NSWIRComm 27 at [78]-[79]).

387. Further, the Prosecutor has offered a salary increase of 2.04% (and .46% increase in superannuation contributions) per year over 3 years and an arbitration has been fixed to hear the contest of salaries.

Previous Breach of Dispute Orders

388. As earlier mentioned, the Federation has contravened dispute orders on six occasions, the last of which was in 2012. The circumstances of that offending is set out below:

1. Teachers Federation [2012] NSWIRComm 92, where Backman J imposed a penalty of $12,500 with respect to a contravention constituted by a “up to two hours” stop work involving approximately 45% of staff (23,218 employees). The maximum penalty for the offence was $20,000. In assessing the penalty, the Court considered that weight must be given to specific deterrence, as a result of past contraventions by the Teachers Federation.

2. Teachers Federation [2012] NSWIRComm 58, where Haylen J to impose penalties of $4,000 for contravention on 7 September 2011 and $2,000 for contravention on 8 September 2011, where the maximum penalty was $20,000 and $10,000 respectively. It was noted that the industrial action resulted in 1,586 schools being non-operational due to approximately 75% of school teachers and 38% of TAFE teachers being absent. The Court in assessing the penalty noted the need for deterrence and the significant impact the industrial action had on schools and TAFE operations.

3. Teachers Federation [2010] NSWIRComm 44, where Staff J imposed a penalty of $4,000 with respect to a contravention constituted by a 24-hour strike involving 4000 employees where the maximum penalty was $10,000. The Court considered that the Teachers Federation engaged in “serious industrial misconduct” (at [38]), however, did not fall in the “worst class case” (at [38]). The Court found that the penalty should be in the “mid-range” (at [42]).

4. Teachers Federation [2012] NSWIRComm 93, where Boland J imposed a penalty of $17,500 with respect to a contravention constituted by a 24 hour strike on 27 June 2012, where the maximum penalty was $20,000. In assessing the penalty imposed the Court had regard to the conduct engaged in by the Teachers Federation, prior offending, inter alia, and found that it weighs heavily in favour of a penalty at the high-end range. The Court noted that specific deterrence must constitute a significant element of the penalty. The Court discounted the penalty as a result of the Teachers Federation admitting to the breach.

5. Teachers Federation [2010] NSWIRComm 77, where Marks J imposed a penalty of $7,000 with respect to a contravention constituted by a 3 hour stop work action on 10 November 2009, where the maximum penalty was $10,000. The Court considered the breach of the dispute order “as a most serious matter” (at [25]) and noted that deterrence would be taken into account “to the fullest possible extent when assessing the appropriate penalty” (at [27]).

6. Teachers Federation [2000] NSWIRComm 103, where the proceedings were dismissed, and no penalty was imposed for a contravention on 28 February 2020. The Court came to this finding by having regard to the apology made by the Teachers Federation and the support of the Department of Education and Training in dismissing the proceedings with no penalty.

389. I accept the submission of the Prosecutor that, in considering this factor regard may be had to the Federation’s non-compliance with the direction B1 and the recommendation made on the 26 November 2021.

390. The Prosecutor submitted that, although the last breach was ten years ago, the history displays a pattern of defying dispute orders “when it suits their purposes”.

391. The Federation submitted that the fact that the last contravention by the Federation took place nearly 10 years ago warranted little weight being given to the history of industrial action.

392. The nearly decade long abstinence by the Federation from industrial action, taken contrary to orders of the Commission should not be lightly ignored, as it demonstrates, at least, the prospect of a shift from the immediate past history of the Federation’s approach to industrial action.

393. However, that does not negate the need for specific deterrence. The Federation is presently engaged in a campaign, as I will discuss below, which needs to be considered in the context of Federation’s stated policy (as reflected in its published history), namely, since the major breach with the past in 1968 by the taking of a state wide strike, “industrial action has become part of the Federation’s campaigns”. That ethos was demonstrated by the 12 year period prior to the last strike in 2012 (when the Federation last organised a strike) involving six contraventions of dispute orders and the current campaign, by the Federation, as I will discuss below.

394. On balance, I consider weight should be given to the prior offending, by the Federation mitigated by its conduct of the past near decade. That should be reflected in two ways. First, the Federations record deprives it of leniency. Secondly, it is relevant to specific deterrence which I will discuss below.

Deterrence

395. In Industrial Relations Secretary, the Court of Appeal upheld the view of the primary judge that general deterrence was an important consideration in the assessment of an appropriate penalty in proceedings involving the contravention of a dispute order under s 139 of the Act. It was held that, if the industrial relations system embodied under the Act is to achieve its objects, any penalty needs to incorporate a significant level of general deterrence: Industrial Relations Secretary at [157].

396. The Federation relied upon observations of the Industrial Court from time to time that contraventions of dispute orders are rare and any element for general deterrence must be small at most: see Bluescope [2005] NSWIRComm 210 at [53]; Bluescope Steel Ltd v Australian Workers' Union, NSW [2006] NSWIRComm 338 (“Bluescope [2006] NSWIRComm 338”) at [34]; Teachers Federation 2010 NSWIRC 44 at [47]; Secretary of the Treasury v PSA (No 2) (2013) 231 IR 349; [2013] NSWIRComm 25 at [49].

397. The historical position reflected in those authorities of the Industrial Court, represented an era in which industrial parties were often concerned to give active compliance to recommendations and directions of the Commission and dispute orders were thereby sparingly imposed. The very cases relied upon by the Federation, in this respect, when viewed collectively (also including Annexure A to the written submissions of the Federation), when combined with the Federation’s history, might well raise doubts as to whether the circumstances relied upon by the Industrial Court to minimise the need for general deterrence have passed. In any event, the deliberate defiance of dispute orders, as discussed in Industrial Relations Secretary at [156], and as occurred in this case, would suggest this Court should be less sanguine as to the likely approach of industrial organisations as to orders of the Commission. In my view, general deterrence must be given substantial weight in the penalty imposed upon the Federation. There is a need to discourage other potential offenders from committing offences under the Act.

398. The Prosecutor relied upon the judgment of the Full Federal Court in Pattinson, (concerning the power of the Federal Court to impose penalties for breaches of civil remedy provisions in the context of s 546 of the Fair Work Act) to submit that deterrence required the fixing penalties at a level that cannot be regarded by the contravener and others as “an acceptable cost of doing business”. Reliance was placed, in that respect, upon [103] of Pattinson. I consider that to be the applicable approach, as long as the imposition of a penalty is cognisant of the maximum penalty for the contravention and the balance of the judgment in Pattinson, in this respect, is given effect. In the latter respect, in Pattinson it was held necessary to balance the appropriate penalty to deter, including ensuring the penalty is not such as to be regarded as an acceptable cost of doing business, with the need to ensure that the appropriate penalty, whilst acting to deter, is not oppressive in respect of the instant contravention: Pattinson at [102].

399. It was common ground that weight needs to be given to specific deterrence in the determination of penalty (see the approach of Boland J in Bluescope [2005] NSWIRComm 210 at [52]).

400. There are three factors demonstrating the need for specific deterrence which are as follows:

1. I have earlier referred to historical factors pointing to the need for specific deterrence, even in the presence of some remission of industrial action during the last near decade.

2. The evidence shows that the Federation is a significant organisation for which a small fine would be of little consequence. The membership of the Federation includes 39,000 permanent fulltime teachers, about 4,000 temporary teachers, 6,000 casual and unemployed teachers and 6,000 TAFE teachers.

3. The Prosecutor also contended that the need for specific deterrence is reflected in the fact that there is in prospect further industrial action in the first term of 2022. It was submitted that the strike which occurred on 7 December 2021, is part of the “morethanthanks” campaign seeking, inter alia, an increase in teachers and related employees’ salaries in the context of disputed award proceedings that are not listed before the Commission until May 2022.

The direct evidence admitted in the proceedings permissive of such a conclusion is somewhat, essentially deriving from an interview between the President of the Federation and Cathy Van Extel on RN Breakfast radio on 7 December 2021 in which he responded to the question “So, you’re willing to go on strike in the future?” with the following answer “Well, what we’re seeking is for the Premier’s intervention to address this shortage of teachers and the causes of it. I’m not going to rule anything in or anything out. The important thing is for the Government to take note of its own evidence and act in the interests of the – the long term interests of our students”.

However, the nature of the communications by the Federation over the period of 30 November 2021 to 7 December 2021, including by its President, together with the determination of its Executive on 27 November 2021, and the articulation by the Federation that it is engaged with a company suggests that the Prosecutor is entitled to have real concerns about the prospect of further industrial action.

401. In my view, there should be an element of specific deterrence in the penalty imposed to deter the Federation from a reversion to a culture or disposition to resolving industrial disputes by a preparedness to undertake industrial action contrary to dispute orders of the Commission

Maximum penalty

402. The maximum penalty is relevant in the sense described by the High Court in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [31] (per Gleeson CJ, Gummow, Hayne and Callinan JJ):

31 … careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick.

403. The well known statement of principle in Markarian has been applied in a civil penalty context: Pattinson at [105]; ACCC at [154]-[156].

404. The maximum penalty for an offence is reserved for the gravest type of case for which that penalty is prescribed: Ibbs v The Queen (1987) 163 CLR 447; [1987] HCA 46 at [451]-[452]; see also: R v Dodd (1991) 57 A Crim R 349 at [354], adopting the approach of Jordan CJ in R v Geddes (1936) 36 SR (NSW) 554 at [556], Pattinson at [105] and [162].

405. That does not mean that a lesser penalty must be imposed if it be possible to envisage a more serious case; ingenuity can always conjure up a case of greater iniquity. A case which imposes the maximum penalty offends this principle only if the case is recognisably outside the gravest category: Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 at [478]; see also Hawkins v R (1993) 67 A Crim R 64 at [67].

406. Neither party suggested that the contraventions fell into the worst class of case in this matter, an approach which, in my view, is appropriate having regard to the nature of the offending described above.

407. To repeat, the maximum penalty for the contravention consisting of a single course of conduct over 8 days is $45,000. The maximum penalty for the sixth contravention, the strike, is $10,000.

Objective factors - conclusion

408. In my view, the offending by the Federation is serious. The contraventions of the dispute orders by organising, encouraging and inducing the strike over 8 days is, in my view, objectively serious. I consider that the sixth contravention (the actual strike) is of a greater level of seriousness.

Subjective factors

409. It was common ground that the admission by the Federation, as to the contravention of Order A1 (subject to a question of validity) should be recognised as having a utilitarian value because the Prosecutor was not put wholly to proof: see Bluescope [2006] NSWIRComm 338 at [41]; Teachers Federation 2010 NSWIRC 44 at [49].

410. However, I do not accept that the admissions are an expression of remorse. The Federation has not expressed remorse or contrition. The Federation submitted that the action taken by its members, in contravention of the dispute order, was based upon serious and well founded concerns about various industrial issues and that the action was not taken capriciously, lightly or as a result of frivolous concerns. None of those statements or any other submissions associated with the strike or its preparation made by the Federation contain, in my view, expressions of remorse or contrition but rather they are statements of justification for non-compliance with the dispute orders.

Assessment of Penalty

411. In sentencing the Federation all of the relevant factors must be taken into account by way of the instinctive synthesis, which the High Court referred to in Markarian at [51]. That requires that all of the factors relevant in the Federation's case to be considered, their significance discussed and a value judgment as to the appropriate sentence for the offender's offending made. The result arrived at must also ensure that there is a reasonable proportionality between the sentence imposed upon the offender and the circumstances of the crimes he committed: R v Scott [2005] NSWCCA 152 at [15].

412. In Industrial Relations Secretary the Chief Justice discussed prior penalties for contraventions of dispute orders as follows (at [158]-[159]):

158. Finally, it is significant that the penalty imposed was considerably higher than any previous penalty. The court was supplied with a schedule of cases where penalties were imposed for contraventions of dispute orders. However, beyond demonstrating that the penalty was well in excess of any penalty previously imposed, the contraventions in each of the cases in the schedule differed in their circumstances. Although a number of cases involved strikes occurring over more than one day, none involved a contravention of the nature of that which occurred in the present case, which continued over an extended period of 14 days.

159. Of course, it must be remembered that, although a history of sentencing can establish a range of sentences, it does not establish that the range is the correct range: Hili v The Queen at [54], citing Simpson J in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [303]–[305]; Barbaro at [7], [26]–[28]; R v Pham (2015) 256 CLR 550; [2015] HCA 39 at [26]–[27]. However, it remains relevant to consider the range as a “yardstick” against which to measure the sentence imposed by the primary judge: Hili v The Queen at [54]. In particular, a sentence which is totally disproportionate to sentences previously imposed may tend to suggest that the sentence is manifestly excessive.

413. In Industrial Relations Secretary, the Court of Appeal imposed a penalty with respect to a continuous course of conduct over 14 days, of $25,000. The maximum penalty was $20,000 for the first day of the contravention and an additional $10,000 for each subsequent day that the contravention continued.

414. In sentencing the Federation, I have had regard to the statutory guidelines of the maximum sentence together with the circumstances bearing upon the objective seriousness of the offence and subjective features.

415. I consider that the contravention concerning the organisation of the strike by a single course of conduct which occurred over 8 days (with considerable concurrence on the last day) should attract a penalty of $25,000.

416. The penalty for actually engaging in the strike itself (the sixth contravention) will attract a penalty of $8,000.

417. I have applied the principle of totality, as earlier discussed in this judgment. I consider there should be substantial accumulation of the contravention involving a continuous cause of conduct with the second contravention, save for the eighth day of continuous contravention, where there is a significant amount of concurrence.

418. In the circumstances, an enforcement order should be made under s 139 for a financial penalty of $30,000 pursuant s 139(3)(e).

ORDERS

419. The orders of the Court are:

1. The Court declares that the Australian Education Union New South Wales Teachers Federation Branch has contravened the dispute orders made by the Commission on 29 November 2021 in the respects alleged by the Prosecutor in Contraventions A and F of the amended summons, excluding particulars not available on the admitted evidence, in accordance with this judgment.

2. Pursuant to s 139(3)(e) of the Act, the Court imposes a penalty upon the Australian Education Union New South Wales Teachers Federation Branch of $30,000.

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Amendments

15 March 2022 - Order (1) amended for clarity

Decision last updated: 15 March 2022