Secretary of the Ministry of Health v New South Wales Nurses and Midwives' Association

[2022] NSWSC 1178

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Secretary of the Ministry of Health v The New South Wales Nurses and Midwives’ Association [2022] NSWSC 1178

Hearing dates:

11, 12 and 19 July 2022 (Notes received on 25 and 29 July 2022)

Date of orders:

28 September 2022

Decision date:

28 September 2022

Jurisdiction:

Common Law - Administrative Law

Before:

Walton J

Decision:

(1) The Amended Summons, insofar that it pertains to pleaded contraventions A, B and J, is dismissed.

(2) The Court declares that The New South Wales Nurses and Midwives’ Association has contravened the dispute orders made by the Industrial Relations Commission on 15 March 2022 in the respects alleged by the prosecutor in pleaded contraventions C to I of the Amended Summons.

(3) The Court imposes a penalty of $25,000 on The New South Wales Nurses and Midwives’ Association.

(4) Grant liberty to the parties to apply within seven days of the publication of this judgment.

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW — industrial disputes — dispute orders — Industrial Relations Act 1996 (NSW) ss 136, 137 and 139 —alleged contravention of dispute orders — whether multiple separate contraventions of dispute orders — single course of conduct — assessment of penalty — sentencing principles — consideration of Australian Building and Construction Commissioner v Pattinson (2022) 314 IR 301; [2022] HCA 13 — principle of totality — objective factors — nature and extent of contravening conduct — seriousness of conduct — deliberateness of conduct — loss and damage caused — circumstances of contravention — general deterrence —specific deterrence — subjective factors — penalty imposed

EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — power and jurisdiction — industrial disputes — industrial action — conciliation and arbitration — dispute orders — public interest — objects of the Industrial Relations Act 1996 (NSW)

EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — power and jurisdiction — appellate jurisdiction — statutory right to seek leave to appeal to Full Bench — principles and relevant considerations for grant of leave — grant of leave where Commissioner fails to give adequate reasons

COURTS AND TRIBUNALS — jurisdiction of Supreme Court — Industrial Relations Act 1996 (NSW) s 139 — collateral challenge, attack or review — discretion to entertain the collateral challenge — discretion to decline to hear and determine collateral challenge — relevant considerations and factors — application to present case

COURTS AND TRIBUNALS — jurisdiction of Supreme Court — privative clause — Industrial Relations Act 1996 (NSW) s 179 — Kirk v Industrial Court (NSW) (2010) 239 CLR 531 — whether s 179 prevents collateral challenge — decision with non-jurisdictional error of law is “final” and not void

ADMINISTRATIVE LAW — failure to give reasons — whether the Commission was under an obligation or duty to give reasons — implied statutory obligation to give reasons — “special circumstances” in Public Service Board (NSW) v Osmond (1986) 159 CLR 656 — Industrial Relations Commission is a quasi-judicial body — required to act judicially — required to afford procedural fairness — statutory right of appeal — dispute orders affect rights of persons — discussion of content and adequacy of reasons

ADMINISTRATIVE LAW — failure to respond to substantial, clearly articulated argument — meaning of “substantial” and “clearly articulated” — whether satisfied by dialogue or questioning between counsel or representative and Commissioner — practical injustice — materiality

ADMINISTRATIVE LAW — jurisdictional error or error of law — whether failure to give reasons amounts to jurisdictional error — constructive failure to exercise jurisdiction — denial of procedural fairness — February dispute orders void — March dispute orders not void

Legislation Cited:

Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth), s 10

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Australian Courts Act 1828 (Imp), s 3

Bail Act 2013 (NSW), s 71

Commonwealth Conciliation and Arbitration Act 1904 (Cth), ss 6, 6A, 19

Commonwealth Constitution, Ch III; s 51(xxxv)

Constitution Act 1902 (NSW), Pt 9

Crimes (Appeal and Review) Act 2001 (NSW), Pt 7; ss 78, 79

Criminal Justice Act 1967 (UK), s 61

Environmental Planning and Assessment Act 1979 (NSW), s 109H

Evidence Act 1995 (NSW), ss 140, 144

Fair Work Act 2009 (NSW), ss 12, 19, 349, 363, 417, 546

Fines Act 1996 (NSW), s 4

Fire and Rescue NSW Act 1989 (NSW), ss 69, 70

Government and Related Employees' Tribunal Act 1980 (NSW), s 43

Government Sector Audit Act 1983 (NSW), s 33E

Government Sector Employment Act 2013 (NSW), s 50

Health Services Act 1997 (NSW), ss 115, 116, 116H

Home Building Act 1989 (NSW), ss 3C, 18E, 48K

Independent Commission Against Corruption Act 1988 (NSW), s 104

Industrial Arbitration (Special Provisions) Act 1984 (NSW)

Industrial Arbitration Act 1940 (NSW), ss 84, 100

Industrial Relations (Public Sector Conditions of Employment) Regulation 2014 (NSW), cls 6, 6A

Industrial Relations Act 1991 (NSW), s 195

Industrial Relations Act 1996 (NSW), Ch 2 Pt 6, Ch 3, Ch 4, Ch 6A; ss 3, 10, 13, 17, 19, 38, 84, 106, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 146, 147, 148, 152, 155, 156, 162, 163, 167, 169, 177, 179, 181A, 187, 188, 191, 355A, 355C, 355E, 357; Sch 4 cl 70(1)

Industrial Relations Act 2016 (Qld), s 531

Industrial Relations Amendment (Industrial Court) Act 2016 (NSW), Sch 1 cl 16

Industrial Relations Amendment Act 2005 (NSW)

Industrial Relations Commission Rules 2009 (NSW), r 13.2

Interpretation Act 1987 (NSW), ss 34, 35

Legal Profession Act 1987 (NSW), Pt 11 Div 6; ss 208L, 208M

Legal Profession Reform Act 1993 (NSW)

Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW), r 4

Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 (NSW), Pt 2 r 3.1

Police Act 1990 (NSW), s 85

Public Service Act 1979 (NSW), ss 65A, 116

Supreme Court Act 1970 (NSW), ss 23, 69, 75, 124

Supreme Court Rules 1970 (NSW), Pt 72; Sch J Pt 1 cls 1, 2 (under the heading “Industrial Relations Act 1996”)

Teaching Service Act 1980 (NSW), s 12

Transport Administration Act 1988 (NSW), ss 59, 68K

Uniform Civil Procedure Rules 2005 (NSW), rr 6.3, 59.3, 59.10

Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 327, 328

Workplace Relations Act 1996 (Cth), s 170CG

Workplace Relations Amendment (Work Choices) Act 2005 (Cth)

Cases Cited:

A v New South Wales (2007) 230 CLR 500; [2007] HCA 10

AAI Ltd trading as GIO as agent for the Nominal Defendant v McGiffen (2016) 77 MVR 348; [2016] NSWCA 229

Aboud v State of New South Wales (Department of School Education) (1999) 92 IR 32

Ace Business Brokers Pty Ltd v Phillips-Treby (2000) 100 IR 420

Ahmad v R [2022] NSWCCA 144

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10

Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479; [2020] NSWCA 165

Ali v AAI Limited (2016) 75 MVR 502; [2016] NSWCA 110

Allianz Australia Insurance Ltd v Cervantes (2012) 61 MVR 443; [2012] NSWCA 244

Allplastics Engineering Pty Ltd v Dornoch Ltd [2006] NSWCA 33

Amalgamated Metal Workers Union v Electricity Commission (NSW) (1989) 28 IR 155

Ambulance Service of New South Wales v Buchtmann (2007) 160 IR 57; [2007] NSWIRComm 18

Ambulance Victoria v United Voice (2014) 245 IR 375; [2014] FCA 1119

Anderson Stuart v Treleavan (2000) 49 NSWLR 88

Antonakopoulos v State Bank of NSW (1999) 91 IR 385

Attorney-General (NSW) v Kennedy Miller Television Pty Ltd (1998) 43 NSWLR 729

Attorney-General (SA) v Tichy (1982) 30 SASR 84

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Bay Street Case) (2018) 260 FCR 564; [2018] FCA 83

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (No 3) [2017] FCA 10

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Nine Brisbane Sites Appeal) (2019) 269 FCR 262; [2019] FCAFC 59

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68; [2017] FCAFC 113

Australian Building and Construction Commissioner v Hall (2018) 261 FCR 347; [2018] FCAFC 83

Australian Building and Construction Commissioner v Huddy [2017] FCA 739

Australian Building and Construction Commissioner v Pattinson (2022) 314 IR 301; [2022] HCA 13

Australian Building and Construction Commissioner v Pattinson (2019) 291 IR 286; [2019] FCA 1654

Australian Commonwealth Shipping Board v Federated Seamen's Union of A/asia (1925) 35 CLR 462

Australian Competition and Consumer Commission v Hillside (Australia New Media) Pty Ltd (t/as Bet365) (No 2) [2016] FCA 698

Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd (2016) 340 ALR 25; [2016] FCAFC 181

Australian Crime Commission v Marrapodi (2012) 42 WAR 351; [2012] WASCA 103

Australian Iron & Steel Ltd v Amalgamated Engineering Union [1959] AR (NSW) 329

Australian Iron & Steel Ltd v Federated Ironworkers Association [1950] AR (NSW) 629

Australian Iron & Steel Ltd v Federated Ironworkers Association [1961] AR (NSW) 304

Australian Liquor, Hospitality and Miscellaneous Workers Union, New South Wales Branch v Murawina Mt Druitt Co-op Ltd [2005] NSWIRComm 1017

Australian Manufacturing Workers’ Union v McCain Foods (Aust) Pty Ltd (2021) 310 IR 1; [2021] FWCFB 4808

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

Australian Tramway Employees' Association v Prahran & Malvern Tramway Trust (Union Badge Case) (1913) 17 CLR 680

Australian Workers' Union, New South Wales v Bluescope Steel (AIS) Pty Limited (2006) 151 IR 153; [2006] NSWIRComm 71

Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353

Baker v Australian Workers Union [2006] NSWIRComm 1225

Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279

Barnier v Secretary, Department of Education [2021] NSWIRComm 1045

BHP Steel (AIS) Pty Ltd (now known as BlueScope Steel (AIS) Pty Ltd) and The Australian Workers' Union, NSW [2006] NSWIRComm 263

BHP Steel Ltd v The Australian Workers' Union, New South Wales [2003] NSWIRComm 151

Big WDiscount Stores v Donato (1995) 58 IR 239

Blacktown Workers Club Ltd v Harris (1999) 93 IR 226

Bluescope Steel (AIS) Ltd v Australian Workers' Union (NSW) (2005) 138 IR 324; [2005] NSWIRComm 99

Bluescope Steel (AIS) Ltd v AWU and Anor (No 2) [2005] NSWIRComm 210

Bluescope Steel (AIS) Pty Ltd v Australian Workers' Union, New South Wales [2005] NSWIRComm 260

Bluescope Steel (AIS) Pty Ltd v Australian Workers' Union, New South Wales [2006] NSWIRComm 274

BlueScope Steel Limited v Australian Workers’ Union [2018] FCA 1574

Bluescope Steel Ltd v Australian Workers’ Union, NSW (2004) 137 IR 176; [2004] NSWIRComm 222

Bluescope Steel Ltd v The Australian Workers’ Union, New South Wales [2006] NSWIRComm 338

Boddington v British Transport Police [1999] 2 AC 143

Box Valley Pty Ltd v Price (2000) 97 IR 484

Briginshaw v Briginshaw (1938) 60 CLR 336

Britton and Riverstone Public School [1999] NSWIRComm 181

Brodie v Singleton Shire Council (2001) 206 CLR 512; [2001] HCA 29

Brooks v Upper Hunter County Council [1973] AR (NSW) 90

Building Construction Employees & Builders' Labourers Federation of New South Wales v Minister for Industrial Relations (1985) 1 NSWLR 197

Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325; [2001] NSWIRComm 117

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

Byrne v Rail Corporation of NSW [2012] NSWIRComm 117

Cahill v Construction, Forestry, Mining and Energy Union (No 2) (2008) 170 FCR 357; [2008] FCA 1292

Caltex Petroleum Pty Ltd v Harmer (1999) 92 IR 264

Campbelltown City Council v Vegan (2006) 67 NSWLR 372

Canberra Cleaners Pty Ltd v Commissioner of ACT Revenue (2008) 336 FLR 1; [2018] ACTSC 208

Carlson v King (1947) 64 WN (NSW) 65

Cepus v Industrial Court of New South Wales and Anor (1995) 60 IR 113

CGEA Transport Ltd t/a Southtrans v Transport Workers Union of Australia (2001) 110 IR 211; [2001] NSWIRComm 287

City of Botany Bay v Federated Municipal and Shire Council Employees' Union of Australia, New South Wales Division [2000] NSWIRComm 85

City of Sydney Wages/Salary Award 2014 (2014) 247 IR 386; [2014] NSWIRComm 49

Coles Supermarket (Australia) Pty Ltd v National Union of Workers (NSW Branch) [1997] NSWIRComm 24

Collins v Urban [2014] NSWCATAP 17

Commins v Massam (1642) 82 ER 473

Commonwealth Steamship Owners' Association v Federated Seamen's Union of A/asia (1923) 33 CLR 297

Commonwealth v Director, 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 (NSW) v Newcrest Mining Ltd (2005) 139 IR 50; [2005] NSWIRComm 23

Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (1998) 89 FCR 200

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298; [2015] FCAFC 25

Construction, Forestry, Mining and Energy Union v Cahill (2010) 194 IR 461; [2010] FCAFC 39

Construction, Forestry, Mining and Energy Union v Clarke (2006) 149 IR 224; [2006] FCA 245

Construction, Forestry, Mining and Energy Union v Williams (2009) 191 IR 445; [2009] FCAFC 171

Craig v South Australia (1995) 184 CLR 163

Crown Employees (Police Officers – 2009) Award (No 2) (2012) 220 IR 192; [2012] NSWIRComm 104

Dare v Pulham (1982) 148 CLR 658

Davis v Amalgamated Television Services Pty Ltd (1998) 81 IR 364

Day v SAS Trustee Corporation [2021] NSWCA 71

Decottignies v NSW Department of Education and Training [2010] NSWIRComm 1014

Dignan v Australian Steamships Pty Ltd (1931) 45 CLR 188

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

Director General, NSW Department of Health and New South Wales Nurses Association (No 3) [2010] NSWIRComm 190

Director General, NSW Department of Health v New South Wales Nurses Association (No 2) [2010] NSWIRComm 163

Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194

Director, Fair Work Building Industry Inspectorate v Robinson (2016) 241 FCR 338; [2016] FCA 525

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

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

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

DNA17 v Minister for Immigration and Border Protection [2019] FCAFC 146

Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 321; [2003] HCA 26

Dyldam Developments Pty Ltd v The Owners – Strata Plan No 85305 [2019] NSWCATAP 229

East Melbourne Group Inc v Minister for Planning (2008) 23 VR 605; [2008] VSCA 217

Edwards v Justice Giudice (1999) 94 FCR 561

Electrical Trades Union of Australia v. BlueScope Steel (AIS) Pty Limited [2005] NSWIRComm 1065

Electricity Commission v Crump (1993) 48 IR 296

Entertainment Distributors Co Pty Ltd v Burnard (1993) 49 IR 446

Fair Work Ombudsman v Maritime Union of Australia [2017] FCA 1363

Fakhouri v Secretary for the NSW Ministry of Health [2022] NSWSC 233

Federal Airports Corporation v Aerolineas Argentinas (1997) 76 FCR 582

Federated Ironmakers Association v Commonwealth (1951) 84 CLR 265

Federated Miscellaneous Workers Union of Australia, WA Branch v Nappy Happy Hire Pty Ltd t/as Nappy Happy Service (1994) 56 IR 62

Federation Insurance Ltd v Wasson (1987) 163 CLR 303

Fire & Rescue NSW on behalf of the Department of Premier and Cabinet v Fire Brigade Employees' Union of New South Wales (2013) 235 IR 261; [2013] NSWIRComm 63

Fire and Rescue NSW on behalf of Department of Premier and Cabinet v New South Wales Fire Brigade Employees' Union [2012] NSWIRComm 76

Fire Brigade Employees' Union of New South Wales v Fire and Rescue NSW [2014] NSWIRComm 16

Flannery v Halifax Estate Agencies Limited [2000] 1 WLR 377; [1999] EWCA Civ 811

Forster v Jododex (1972) 127 CLR 421

Franklins Ltd v National Union of Workers (NSW Branch) (1997) 78 IR 289

Frugtniet v Attorney-General (NSW) (1997) 41 NSWLR 588

Garcia v National Australia Bank Ltd (1998) 194 CLR 395; [1998] HCA 48

General Pants (Trading) Co Pty Ltd v Shonny (unreported, Full Commission of New South Wales, IRC 3123 of 1993, 8 September 1994)

Gett v Tabet (2009) 254 ALR 504; [2009] NSWCA 76

Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628; [2018] FCAFC 225

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

Health Secretary v New South Wales Nurses and Midwives’ Association [2022] NSWIRComm 1047

Health Secretary v New South Wales Nurses and Midwives’ Association [2022] NSWIRComm 1071

Health Services Union NSW v Health Secretary [2017] NSWSC 1661

Hill v Director-General, Department of Education & Training (NSW) (1998) 85 IR 201

Hill v King (1993) 31 NSWLR 654

Hinton Demolitions Pty Ltd v Lower (No 2) (1971) 1 SASR 512

Hollingsworth v Commissioner of Police (1998) 47 NSWLR 104

Holmes a Court v Papaconstuntinos [2011] Aust Torts Reports 82-081; [2011] NSWCA 59

Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34

Humphries v Cootamundra Ex Services and Citizens Memorial Club Ltd (2003) 128 IR 37; [2003] NSWIRComm 211

Hussmann Australia Pty Ltd v Walker (1993) 31 NSWLR 189

In the matter of Ming Tian Real Property Pty Ltd (2020) 145 ACSR 329; [2020] NSWSC 212

Industrial Relations Secretary v Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales [2022] NSWIRComm 1042

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) 303 IR 322; [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

Inghams Enterprises v Iogha [2006] NSWSC 456

Insurance Australia Ltd (t/as NRMA Insurance) v Milton (2016) 77 MVR 78; [2016] NSWCA 156

John Fairfax & Sons Pty Ltd v Printing Industry Employees Union [1963] AR (NSW) 97

John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508

King v State Bank of New South Wales (No 2) (2002) 126 IR 407; [2002] NSWIRComm 353

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

Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380

Kostas v HIA Insurance Services Pty Ltd [2007] NSWSC 315

Krulow v Glamorgan Spring Bay Council (2013) 23 Tas R 264; [2013] TASFC 11

Latham v Singleton [1981] 2 NSWLR 843

Lee v Energy Australia (No 4) [2011] NSWIRComm 120

Li v Attorney General for New South Wales (2019) 99 NSWLR 630; [2019] NSWCA 95

Lord v Flight Centre Ltd (No 2) (2006) 156 IR 420; [2006] NSWIRComm 282

Lord v Flight Centre Ltd [2006] NSWIRComm 188

Mahenthirarasa v State Rail Authority (NSW) (No 2) (2008) 72 NSWLR 273; [2008] NSWCA 201

Margaritte Joanne Colefax v Secretary, Department of Education (No 3) [2019] NSWIRComm 1000

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

Marroun v State Transit Authority [2016] NSWSC 1830

McKernan v Fraser (1931) 46 CLR 343

Melbourne Steamship Company Ltd v Moorehead (1912) 15 CLR 333

Metropolitan Coal Co of Sydney Ltd v Australian Coal & Shale Employees' Federation (1917) 24 CLR 85

Metropolitan Gas Co v Federated Gas Employees' Industrial Union (1925) 35 CLR 449

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

Monier PGH (Holdings) Ltd v Horsey ( 1998) 86 IR 63

Monk v Dow Corning Australia Pty Ltd [1984] 2 NSWLR 485

Moore v Doyle (1969) 15 FLR 59

Moray v Federated Engine Drivers & Firemen’s Union [1963] AR (NSW) 830

Morrison v Milner (2009) 181 IR 443; [2009] NSWIRComm 57

Moylan v Nutrasweet [2000] NSWCA 337

Murphy v The Queen (1989) 167 CLR 94

MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590; [2021] HCA 17

New South Wales Department of Education v New South Wales Teachers Federation (2010) 194 IR 340; [2010] NSWIRComm 55

New South Wales Fire Brigade Employees Union and Fire and Rescue NSW on behalf of the Director Public Employment [2012] NSWIRComm 1002

New South Wales Independent Teachers' Association v St Aloysius College [1976] AR (NSW) 91

New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231

Nguyen v Nguyen (1990) 169 CLR 245

NH v Director of Public Prosecutions (SA) (2016) 260 CLR 546; [2016] HCA 33

Notification under section 130 by the NSW Department of Community Services of a dispute with the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales; Re Workbans [2000] NSWIRComm 66

NSW Department of Education and Training v NSW Teachers Federation; Re Student Reports Bans (2006) 157 IR 329; [2006] NSWIRComm 346

NSW Teachers’ Federation v NSW Department of Education and Training (2000) 100 IR 441; [2000] NSWIRComm 169

Osmond v Public Service Board (NSW) [1983] 1 NSWLR 691

Osmond v Public Service Board (NSW) [1984] 3 NSWLR 447

Outboard World Pty Ltd v Muir (1993) 51 IR 167

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

PDS Rural Products v Corthorn (1987) 19 IR 153

Perrott v XcelleNet Australia Ltd (1998) 84 IR 255

Pettitt v Dunkley [1971] 1 NSWLR 376

Pirrie v McFarlane (1925) 36 CLR 170

Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship (2013) 251 CLR 322; [2013] HCA 53

Police Association of New South Wales v Commissioner of Police [2019] NSWIRComm 1076

Police v Stacy (2016) 125 SASR 50; [2016] SASC 54

Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

PT Bayan ResourcesTBK v BCBC Singapore Pte Ltd (2015) 258 CLR 1; [2015] HCA 36

Public Employment Office v The NSW Fire Brigade Employees Union [1999] NSWIRComm 556

Public Service Association and Professional Officers Association Amalgamated Union of New South Wales v Roads and Maritime Services (2015) 250 IR 412; [2015] NSWIRComm 16

Public Service Association and Professional Officers Association Amalgamated Union of New South Wales on behalf of Pearcey, Barnett and Woelfl v Department of Attorney General and Justice - Corrective Services NSW [2012] NSWIRComm 33

Public Service Association and Professional Officers' Association Amalgamated Union (NSW) v Secretary of the Treasury (2014) 242 IR 318; [2014] NSWCA 112

Public Service Association and Professional Officers' Association Amalgamated Union (NSW) (on behalf of Rosanna Ganino) v Roads and Maritime Services [2013] NSWIRComm 106

Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales v Industrial Relations Secretary of New South Wales (2021) 306 IR 89; [2021] NSWCA 64

Public Service Association and Professional Officers’ Association Amalgamated Union of NSW South Wales v Secretary for Industrial Relations [2018] NSWIRComm 1061

Public Service Association of South Australia Inc v Industrial Relations Commission (SA) (2012) 249 CLR 398; [2012] HCA 25

Public Service Board (NSW) v Osmond (1986) 159 CLR 656; [1986] HCA 7

Public Service Board v NSW Teachers Federation [1969] AR (NSW) 21

Question of Law Reserved on Acquittal (No 5 of 1999) (2000) 76 SASR 356; [2000] SASC 51

Quinn v Commonwealth Director of Public Prosecutions (2021) 106 NSWLR 154; [2021] NSWCA 294

Qureshi v De Haas (No 2) [2009] NSWIRComm 139

R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13

R v Bowen; Ex parte Amalgamated Metal Workers' and Shipwrights' Union (1980) 144 CLR 462

R v Cawthorne; Ex parte Federated Clerks Union of Australia (South Australia Branch) (1979) 22 SASR 433

R v Civil Service Appeal Board, Ex parte Cunningham [1992] ICR 816

R v De Simoni (1981) 147 CLR 383

R v Gamble [1983] 3 NSWLR 356

R v Industrial Appeals Court; Ex parte Maher [1978] VR 126

R v Mosely (1992) 28 NSWLR 735

R v Pham (2015) 256 CLR 550; [2015] HCA 39

R v Rayment (2010) 200 A Crim R 48; [2010] NSWCCA 85

R v Scott [2005] NSWCCA 152

R v Secretary of State for the Home Department; Ex parte Doody [1994] 1 AC 531

Re Australian Bank Employees Union; Ex parte Citicorp Australia Ltd (1989) 167 CLR 513

Re Australian Railways Union; Ex parte Public Transport Corporation (1993) 51 IR 22; [1993] HCA 28

Re Club Employees (State) Award (2002) 122 IR 272; [2002] NSWIRComm 362

Re Crown Employees (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award (2004) 133 IR 254; [2004] NSWIRComm 114

Re Ferguson; Public Service Association (NSW) v Public Service Board (NSW) (1988) 25 IR 148

Re Health and Community Employees Psychologists (State) Award (2001) 109 IR 458; [2001] NSWIRComm 302

Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212; [2003] HCA 56

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6

Re Operational Ambulance Officers (State) Award (2001) 113 IR 384; [2001] NSWIRComm 331

Re Operational Ambulance Officers (State) Award (No 4) (2016) 255 IR 193; [2016] NSWIRComm 2

Re Optimisation Australia Pty Limited [2018] NSWSC 31

Re Pastoral Industry (State) Award; Application by Australian Business Industrial for a new award and another matter (2001) 104 IR 168; [2001] NSWIRComm 27

Re Printing and Allied Trades Employers Association of New South Wales [2014] NSWIC 6

Re Storeworkers - IGA Distribution Pty Ltd New South Wales Distribution Centres Award 2002 (2002) 124 IR 1; [2002] NSWIRComm 156

Redmond v Director General, NSW Department of Health, on behalf of the Ambulance Service of New South Wales [2012] NSWIRComm 147

Reich v Client Server Professionals of Australia Pty Ltd (2000) 49 NSWLR 551; [2000] NSWIRComm 143

Resarta Pty Ltd v Finemore (2002) 55 NSWLR 320; [2002] NSWCA 250

Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33

Richens v Tresilian & Dun (1993) 32 NSWLR 301

Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission of NSW & Ors [2007] NSWCA 149

Rodger v De Gelder (2015) 71 MVR 514; [2015] NSWCA 211

Rookes v Barnard [1964] AC 1129

Rowe v Transport Workers' Union of Australia (1998) 90 FCR 95

Royer v Western Australia (2009) 197 A Crim R 319; [2009] WASCA 139

Sasterawan v Morris [2008] NSWCA 70

Secretary Department of Education v Australian Education Union of New South Wales Teachers Federation Branch [2022] NSWIRComm 1051

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

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

Secretary of the Department of Education v Australian Education Union of New South Wales Teachers Federation Branch [2022] NSWIRComm 1049

Secretary, Ministry of Health in respect of Hunter New England Local Health District and New South Wales Nurses and Midwives’ Association [2021] NSWIRComm 1046

Seiffert v Prisoners Review Board [2011] WASCA 148

Shaw v Deputy Registrar Buljan [2016] FCA 829

Skilled Engineering Limited v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2001) 108 IR 116; [2001] FCA 1397

Soliman v University of Technology Sydney (2012) 207 FCR 277; [2012] FCAFC 146

Solution 6 Holdings Ltd v Industrial Relations Commission (NSW) (2004) 60 NSWLR 558; [2004] NSWCA 200

Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247

Sparks v Hobson; Gray v Hobson (2018) 361 ALR 115; [2018] NSWCA 29

Stanley v Director of Public Prosecutions (NSW) [2021] NSWCA 337

State Super SAS Trustee Corporation v Cornes [2013] NSWCA 257

State Wage Case 1983 (1983) 5 IR 1

State Wage Case 1999 (1999) 88 IR 363

State Wage Case 2022 [2022] NSWIRComm 1081

Stegbar Pty Ltd v Transport Workers' Union of New South Wales (2008) 173 IR 350; [2008] NSWIRComm 104

Stemp v Australian Glass Manufacturers Co Ltd (1917) 23 CLR 226

Strathfield Group Ltd v Hall (2002) 121 IR 158; [2002] NSWIRComm 373

Sun Alliance Insurance Ltd v Massoud [1989] VR 8

Sutton v BE Australia WD Pty Ltd (No 3) [2017] NSWSC 689

Sydney Water Corporation v Australian Services Union (NSW and ACT Branch) (2005) 146 IR 388; [2005] NSWIRComm 305

Taudevin v Egis Consulting Australia Pty Ltd (No 1) (2001) 131 IR 124; [2001] NSWIRComm 340

Taylor v Environment Protection Authority (2000) 50 NSWLR 48

TD Preece & Co Pty Ltd v Industrial Court (NSW) (2008) 177 IR 172; [2008] NSWCA 285

Terry v Huntington (1679) 145 ER 557

The Director-General, NSW Department of Health, in respect of the Hunter New England Area Health Service and Australian Medical Association (NSW) Limited (2008) 182 IR 353; [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

The Waterside Workers’ Federation of Australia v Burgess Brothers Ltd (1916) 21 CLR 129

Tickner v Chapman (1995) 57 FCR 451

TKWY v The Queen (2002) 212 CLR 124; [2002] HCA 46

Tonab Investments Pty Ltd v Optima Developments Pty Ltd (2015) 90 NSWLR 268; [2015] NSWCA 287

Totalisator Agency Board of New South Wales v Casey (1994) 54 IR 354

Transport for NSW v Chapoterera [2022] NSWSC 976

Transport Industry – General Carriers Contract Determination (2016) 257 IR 294; [2016] NSWIRComm 3

Transport Secretary v The Australian Workers’ Union, New South Wales [2022] NSWIRComm 1053

Transport Workers Union of NSW v Australian Industrial Relations Commission (2008) 166 FCR 108; [2008] FCAFC 26

Transport Workers’ Union of New South Wales v TNT Australia Pty Ltd (2006) 154 IR 256

Twohill v Mental As Anything Touring Pty Ltd & Ors [2008] NSWIRComm 17

Van Huisstede v Commissioner of Police (2000) 98 IR 57; [2000] NSWIRComm 97

Veen v The Queen(No 2) (1988) 164 CLR 465

viagogo AG v Australian Competition and Consumer Commission [2022] FCAFC 87

Waddell v Australian Workers' Union (1922) 30 CLR 570

WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593

Walker v Industrial Court of New South Wales (1994) 53 IR 121

Walsh v Sainsbury (1926) 36 CLR 464

Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (No 2) [2018] NSWCA 124

Webb v Goulburn Masonic Village (2004) 136 IR 309; [2004] NSWIRComm 258

Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273

Wheatley v Federated Ironworkers Association (1959) 60 SR (NSW) 161 at 180; (1959) 76 WN (NSW) 727

Widgee Shire Council v Bonney (1907) 4 CLR 977

Williams v Hursey (1959) 103 CLR 30

Wingecarribee Shire Council v Uri Turgeman trading as Uri T Design [2018] NSWLEC 146

Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43

Witthahn v Chief Executive of Hospital and Health Services (2021) 312 IR 314; [2021] QCA 282

Wood v Boral Resources (NSW) Pty Ltd (unreported, Supreme Court of New South Wales, No 4980 of 1992, 28 October 1993)

Xian v Rail Corporation New South Wales [2009] NSWIRComm 1083

Xuereb v Viola (1989) 18 NSWLR 453

XX v Attorney General of New South Wales [2011] NSWSC 658

Zweck v Town of Gawler (2015) 124 SASR 319; [2015] SASCFC 172

Texts Cited:

Amnon Rubinstein, Jurisdiction and Illegality (Clarendon Press, 1965)

Convention relating to the Status of Refugees (opened for signature 28 July 1951, 189 UNTS 150, entered into force 22 April 1954), art 1A

Edward I Sykes, ‘The Hursey Case: Part 1; The Trade Union Aspect’ (1960) 33 Australian Law Journal at page 432

Enid Campbell, ‘Collateral Challenge of the Validity of Governmental Action’ (1998) 24 Monash University Law Review 272

Harold Weintraub, “English Origins of Judicial Review by Prerogative Writ: Certiorari and Mandamus” (1963) 9 New York Law Forum 478

HB Higgins, A New Province for Law and Order (Constable, 1922)

Industrial Relations Commission, “Contact Us” < (accessed 4 August 2022)

Justice Margaret J Beazley (as Her Excellency then was), Paul T Vout and Sally E Fitzgerald, Appeals and Appellate Courts in Australia and New Zealand (LexisNexis Butterworths, 2014)

Justice Mark Leeming, Authority to Decide: The Law of Jurisdiction in Australia (Federation Press, 2nd ed, 2020)

Mark Aronson, ‘Criteria for Restricting Collateral Challenge’ (1998) 9 Public Law Review 237

Mark Aronson, Matthew Groves and Greg Weeks, Judicial Review of Administrative Action and Government Liability (Lawbook, 6th ed, 2017)

Michael Gillooly and Nii Lante Wallace-Bruce, “Civil Penalties in Australian Legislation” (1994) 13(2) University of Tasmania Law Review 269

New South Wales, Parliamentary Debates, Legislative Council, on 17 April 1996, 21 September 2016 and 11 October 2016

Public Health System Nurses’ and Midwives’ (State) Award 2021 (NSW), cl 53

Shorter Oxford English Dictionary

Supreme Court Practice Note SC CL 3

William Paley, The Law and Practice of Summary Convictions on Penal Statutes by Justices of the Peace (S. Sweet, 2nd ed, 1827)

William Wade, Administrative Law (Oxford University Press, 5th ed, 1982)

Category:

Principal judgment

Parties:

Secretary of the Ministry of Health (Prosecutor)
The New South Wales Nurses and Midwives' Association (Defendant)

Representation:

Counsel:
V Bulut (Prosecutor)
P Boncardo (Defendant)

Solicitors:
NSW Crown Solicitor’s Office (Prosecutor)
NEW Law Pty Ltd (Defendant)

File Number(s):

2022/00097277

Headnote

[This headnote is not to be read as part of the judgment.]

The defendant, The New South Wales Nurses and Midwives’ Association, represents nurses and midwives employed in the NSW Health Service. The defendant organised strikes that occurred on 15 February and 31 March 2022. On those days, members of the Association and employees of the Health Service took industrial action by stopping work.

In the lead up to both those strikes, the prosecutor, the Secretary of the Ministry of Health, notified the Industrial Relations Commission (“the Commission”) of an industrial dispute and then sought dispute orders that the defendant, its officers, employees and members cease and refrain from taking industrial action. On 14 February and 25 March 2022, the Commission made dispute orders that, amongst other things, ordered the Association the cease organising and taking industrial action (“the February Orders” and “the March Orders”, respectively). On both occasions, evidence was put and submissions were made by both the prosecutor and defendant to the Commission but the Commissioner did not give any reasons.

The prosecutor initiated proceedings in the Supreme Court and alleged that the defendant committed ten contraventions of the Commission’s dispute orders and sought penalties under s 139 of the Industrial Relations Act 1996 (“the Act”). The defendant challenged the legal validity of the February and March Orders on the grounds that the orders were vitiated by jurisdictional error because no reasons were given and the Commissioner failed to respond to a substantial, clearly articulated argument made by the defendant. The defendant also challenged some of the pleaded contraventions on the ground that the particulars could not establish breaches of the orders or that the defendant could not lawfully take industrial action.

The Court (Walton J) held:

Collateral Attack

1. An attack on the validity of an order, certificate or decision is not to be characterised as a collateral attack if determining the attack is necessary for the court or tribunal to determine whether it has jurisdiction to decide the broader claim brought before it. Where an attack on the validity of an order, certificate or decision does not go to the jurisdiction of the court or tribunal, it can be properly characterised as a collateral attack: at [178].

Director of Housing v Sudi (2011) 33 VR 559; [2011] VSCA 266; Dyldam Developments Pty Ltd v The Owners—Strata Plan 83505 [2020] NSWCA 327, considered.

Attorney-General (Cth) v Breckler (1999) 197 CLR 83; [1999] HCA 28; Ousley v The Queen (1997) 192 CLR 69; [1997] HCA 49;, referred to.

2. The attacks by the defendant on the validity of the dispute orders are properly to be characterised as a collateral attack because the existence of legally valid dispute orders is not a precondition to the jurisdiction of the Supreme Court under s 139 of the Act: at [180].

Franklins Ltd v National Union of Workers (NSW Branch) (1997) 78 IR 289; Secretary, NSW Department of Education v The Australian Education Union New South Wales Teachers Federation (NSWTF) Branch [2021] NSWSC 1628, followed.

Dyldam Developments Pty Ltd v The Owners—Strata Plan 83505 [2020] NSWCA 327, considered and distinguished

The Validity of the Dispute Orders

3. Although there is no free-standing common law duty to give reasons for making a statutory decision, “special circumstances” existed such that the Commission was under an implied statutory obligation to give reasons in arbitration when making dispute orders: at [366].

Public Service Board (NSW) v Osmond (1986) 159 CLR 656; [1986] HCA 7, considered and distinguished.

New South Wales Fire Brigade Employees Union and Fire and Rescue NSW on behalf of the Director Public Employment [2012] NSWIRComm 1002, considered and affirmed.

Anderson Stuart v Treleavan (2000) 49 NSWLR 88; Attorney-General (NSW) v Kennedy Miller Television Pty Ltd (1998) 43 NSWLR 729; Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284; Entertainment Distributors Co Pty Ltd v Burnard (1993) 49 IR 446; Lord v Flight Centre Ltd (No 2) (2006) 156 IR 420; [2006] NSWIRComm 282; Pettitt v Dunkley [1971] 1 NSWLR 376; Xuereb v Viola (1989) 18 NSWLR 453; Webb v Goulburn Masonic Village (2004) 136 IR 309; [2004] NSWIRComm 258, referred to.

Inghams Enterprises v Iogha [2006] NSWSC 456, distinguished.

R v Secretary of State for the Home Department; Ex parte Doody [1994] 1 AC 531; R v Civil Service Appeal Board, Ex parte Cunningham [1992] ICR 816, not followed.

4. The failure of the Commission to give reasons was an error of law within jurisdiction. The provision of reasons is not a precondition to the valid exercise of the Commission's power to make dispute orders. The failure of the Commission to provide reasons is an error of law but, without more, does not amount to jurisdictional error: at [431], [433].

Li v Attorney General for New South Wales (2019) 99 NSWLR 630; [2019] NSWCA 95, considered.

Public Service Association and Professional Officers' Association Amalgamated Union (NSW) v Secretary of the Treasury (2014) 242 IR 318; [2014] NSWCA 112; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212; [2003] HCA 56; Seiffert v Prisoners Review Board [2011] WASCA 148; Soliman v University of Technology Sydney (2012) 207 FCR 277; [2012] FCAFC 146, referred to.

5. A dialogue between the Bench and parties in the course of argument will usually not amount to consideration or response to a substantial, clearly articulated argument. This will usually depend on the formality of proceedings and regard may be had to the practice of the Commission: at [458]-[459].

Allianz Australia Insurance Ltd v Cervantes (2012) 61 MVR 443; [2012] NSWCA 244; Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 321; [2003] HCA 26; PDS Rural Products v Corthorn (1987) 19 IR 153; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22; Re Pastoral Industry Award (2001) 104 IR 168; [2001] NSWIRComm 27; Transport Industry – General Carriers Contract Determination (2016) 257 IR 294; [2016] NSWIRComm 3, referred to.

6. In the First Dispute, the defendant made two substantial, clearly articulated arguments against the making of dispute orders. The Commission’s failure to respond to these contentions amounted to a constructive failure to exercise jurisdiction and thus jurisdictional error. Therefore, the February Orders are void. Pleaded contraventions A and B, which alleged contraventions of the February Orders, must be dismissed: at [490]-[492].

7. In the Second Dispute, the defendant’s arguments were not substantial and there is not a real possibility that the Commission could have reached a different outcome if the arguments were fully considered. There was no jurisdictional error made out with the March Orders: at [519], [522].

Contraventions

8. The particulars under pleaded contraventions C to I established that the defendant contravened the March Orders by organising industrial action and inducing, advising, authorising, supporting, encouraging, directing, aiding or abetting members to take or organise industrial action: at [573], [583], [589].

9. The particulars under pleaded contravention J were not capable of establishing that the defendant contravened the March Orders by failing to refrain from taking industrial action. Pleaded contravention J must be dismissed: at [605].

Australian Building and Construction Commissioner v Hall (2018) 261 FCR 347; [2018] FCAFC 83; Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279; Taylor v Environment Protection Authority (2000) 50 NSWLR 48, referred to.

10. Discussion of whether a union is legally capable of “taking” industrial action: at [606]-[669].

Australian Commonwealth Shipping Board v Federated Seamen's Union of A/asia (1925) 35 CLR 46; Australian Tramway Employees' Association v Prahran & Malvern Tramway Trust (Union Badge Case) (1913) 17 CLR 680; Bluescope Steel Ltd v Australian Workers’ Union, NSW (2004) 137 IR 176; [2004] NSWIRComm 222; Burwood Cinema Limited and Others v The Australian Theatrical and Amusement Employees’ Association (1925) 35 CLR 528; Construction, Forestry, Mining and Energy Union v Clarke (2006) 149 IR 224; [2006] FCA 245; Federated Engine Drivers' and Firemen's Association of A/asia v Broken Hill Pty Co Ltd (1911) 12 CLR 398; Federated Ironmakers Association v Commonwealth (1951) 84 CLR 265; Moore v Doyle (1969) 15 FLR 59; Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales v Industrial Relations Secretary (2018) 96 NSWLR 762; [2018] NSWCA 39; R v Bowen; Ex parte Amalgamated Metal Workers' and Shipwrights' Union (1980) 144 CLR 462; Rowe v Transport Workers' Union of Australia (1998) 90 FCR 95; Secretary NSW Department of Education v The Australian Education Union New South Wales Teachers Federation Branch [2022] NSWSC 263; Stemp v Australian Glass Manufacturers Co Ltd (1917) 23 CLR 226; Wheatley v Federated Ironworkers Association (1959) 60 SR (NSW) 161; Williams v Hursey (1959) 103 CLR 30, referred to.

Appropriate Penalty

11. There are some differences between the statutory context of the Fair Work Act 2009 (Cth) and the Act such that the principles in Australian Building and Construction Commissioner v Pattinson (2022) 314 IR 301; [2022] HCA 13 are not entirely applicable. Nevertheless, deterrence is a strong and significant factor in determining the appropriate penalty: at [727]-[739].

Australian Building and Construction Commissioner v Pattinson (2022) 314 IR 301; [2022] HCA 13, considered.

12. The defendant made a conscious decision to flagrantly defy the orders of the Commission. However, the evidence shows that the defendant took steps to minimise the impact of their strike action on patients. The disruption caused to the public health system was substantial and some patients and employees were put at risk. The defendant is a good industrial citizen with no prior contraventions: at [811]-[854].

Table of Contents

Item	Starting Paragraph
INTRODUCTION	[1]
THE INDUSTRIAL RELATIONS ACT	[6]
The Industrial Relations Commission	[7]
Conciliation and Arbitration of Industrial Disputes	[23]
Dispute Orders	[36]
Alleged Contraventions of Dispute Orders	[60]
FACTUAL BACKGROUND	[88]
The Events Before the February Orders	[88]
The First Dispute and February Orders	[99]
The Events Following the February Orders	[105]
The Second Dispute and March Orders	[111]
The Events Following the March Orders	[119]
THE PRESENT PROCEEDINGS	[126]
Procedural History	[126]
Issues	[135]
Obligation to Act Expeditiously	[141]
COLLATERAL ATTACK	[150]
Submissions of the Prosecutor	[150]
Submissions of the Defendant	[153]
The Defendant’s Attack on the Validity of the Commission’s Orders were a Collateral Attack	[155]
Director of Housing v Sudi	[161]
Dyldam Developments	[167]
Consideration	[178]
Section 179 of the Act Does Not Prevent Collateral Attack for Decisions that Involve Jurisdictional Error	[196]
This Court has Discretion to Consider and Determine a Collateral Attack	[206]
The Historical Approach	[207]
Subsequent Developments in Australia	[212]
Consideration	[221]
On Balance, this Court should Collaterally Review the Commission’s Orders	[239]
THE VALIDITY OF THE DISPUTE ORDERS	[255]
Submissions of the Defendant	[255]
Failure to Give Reasons	[256]
Failure to Respond to a Substantial and Clearly Articulated Argument	[258]
Submissions of the Prosecutor	[260]
Failure to Give Reasons	[261]
Failure to Respond to a Substantial and Clearly Articulated Argument	[267]
There is an Implied Statutory Obligation on the Commission to Give Reasons	[270]
Public Service Board v Osmond	[273]
The Approach of the English Courts	[284]
The Approach of the Court of Appeal and this Court	[291]
Authorities Concerning the Obligation of the Commission to Give Reasons	[313]
NSW FBEU v Fire and Rescue NSW	[323]
Consideration	[339]
The Failure to Give Reasons Does Not Amount to Jurisdictional Error	[388]
Relevant Authorities	[397]
Li v Attorney General	[406]
Consideration	[426]
Failure to Respond to a Substantial and Clearly Articulated Argument	[440]
Relevant Authorities	[441]
Dialogue or Exchange with the Bench	[455]
Jurisdictional Error	[471]
The February Orders are Infected with Jurisdictional Error	[484]
The March Orders are Not Infected with Jurisdictional Error	[505]
CONTRAVENTIONS	[526]
Overview	[526]
Submissions of the Prosecutor	[530]
Pleaded Contraventions C to F	[531]
Pleaded Contraventions B and J	[536]
Number of Contraventions	[542]
Submissions of the Defendant	[548]
Pleaded Contraventions C to F	[548]
Pleaded Contraventions B and J	[554]
Number of Contraventions	[559]
The First Group of Contested Particulars Establish Breaches of the March Orders	[563]
The Second Group of Contested Particulars Establish Breaches of the March Orders	[576]
The Third Group of Contested Particulars Establish Breaches of the March Orders	[584]
The Particulars of Pleaded Contravention J do not Establish that the Defendant Failed to Refrain from Taking Industrial Action	[590]
The Deficient Particulars	[590]
Whether a Union can “Take” Industrial Action and be in breach of an Order to “Refrain from Taking Industrial Action”	[606]
Pleaded Contraventions C to I were in the Same Course of Conduct	[670]
Relevant Authorities on the “Course of Conduct” Principle	[671]
Consideration	[681]
Note on Pleaded Contraventions A and B	[689]
THE APPROPRIATE PENALTY	[693]
Submissions of the Prosecutor	[693]
Submissions of the Defendant	[702]
The Deliberateness of the Defendant’s Conduct is a Relevant Factor in Determining the Appropriate Penalty	[709]
The Application of ABCC v Pattinson	[715]
The Defendant’s Lack of Prior Contraventions can be Considered as a Mitigating Factor	[740]
This Court can take Judicial Notice of Matters of Common Knowledge in the Industrial Context	[743]
Penalties Imposed in Past Decisions can be Considered	[772]
Assessment of Penalty	[811]
Maximum Penalty	[811]
Nature and Extent of the Contravening Conduct and Deliberateness of the Contravention	[816]
Loss and Damage Caused	[828]
General Deterrence	[834]
Specific Deterrence	[838]
Subjective Factors	[842]
Conclusion	[848]
CONCLUSION	[855]

Judgment

INTRODUCTION

1. On 15 February and 31 March 2022, employees of NSW Health entities (which includes the Local Health Districts and Specially Networks) who were members of The New South Wales Nurses and Midwives’ Association (referred to as the defendant or “the Association”) went on strike. They did so based on serious concerns about pay and workplace conditions. The defendant, which has existed as an industrial association registered under New South Wales law since 1931, has never previously been found to have contravened a dispute order.

2. In the lead up to both those strikes, the prosecutor, the Secretary of the Ministry of Health (referred to as the prosecutor or “the Secretary”), notified the Industrial Relations Commission (“the Commission”) of an industrial dispute and then sought dispute orders. On 14 February and 25 March 2022, the Commission made dispute orders (“the February Orders” and “the March Orders”, respectively) under ss 136(1)(c) and 137(1) of the Industrial Relations Act 1996 (NSW) (“the Act” or “the NSW Act”). The Commission ordered the defendant, its officers, employees, agents and members employed in NSW Health entities to, amongst other things, “immediately cease organising and refrain from taking any form of industrial action”.

3. When those orders were made, the Commission gave no reasons for its decision. In this judgment, I have concluded that the February Orders were a nullity because the Commission did not address a substantial component of the defendant’s case against the making of those orders. Although I have found that the Commission committed an error of law in the making of the March Orders, those orders were not infected by jurisdictional error.

4. By an Amended Summons filed in Court on 12 July 2022, the prosecutor sought the imposition of monetary penalties against the defendant under ss 139(3)(e) and (4) of the Act. As the February Orders were infected by jurisdictional error, they were only purported orders in fact, not valid orders in law. Accordingly, there can be no contravention by the defendant. The Amended Summons must be dismissed with respect to the alleged contraventions of the February Orders.

5. I am satisfied that the defendant deliberately and flagrantly contravened the March Orders, which I have found to be legally valid, by organising industrial action over seven consecutive days,. In all the circumstances, it is appropriate to impose a penalty that reflects this serious contravention.

THE INDUSTRIAL RELATIONS ACT

6. It is helpful to begin by considering the Act, which provides a legal framework for the conduct of industrial relations in New South Wales. I will elaborate about the broader powers and functions of the Commission, including its award-making functions, because reference will be made to those powers and functions throughout this judgment.

The Industrial Relations Commission

7. Chapter 4 of the Act establishes the Industrial Relations Commission and sets out its functions, membership, organisation, procedure and powers, including appeals from the Commission’s decisions.

8. The general functions of the Commission are set out in s 146 of the Act as follows:

(1) The Commission has the following functions—

(a) setting remuneration and other conditions of employment,

(b) resolving industrial disputes,

(c) hearing and determining other industrial matters,

(d) inquiring into, and reporting on, any industrial or other matter referred to it by the Minister,

(e) functions conferred on it by this or any other Act or law.

(2) The Commission must take into account the public interest in the exercise of its functions and, for that purpose, must have regard to—

(a) the objects of this Act, and

(b) the state of the economy of New South Wales and the likely effect of its decisions on that economy.

9. The Commission may determine its own procedure subject to the Act: s 162(1). Some of the powers of the Commission are set out in s 162(2) of the Act as follows:

(2) The Commission—

(a) is to act as quickly as is practicable, and

(b) is to conduct its proceedings publicly or, if it considers it necessary, privately, and

(c) may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases, and

(d) may require evidence or argument to be presented in writing and decide on the matters on which it will hear oral evidence or argument, and

(e) may sit at any place, and

(f) may require a document to be served outside the State, and

(g) may adjourn proceedings to any time and place (including for the purpose of enabling the parties to negotiate a settlement), and

(h) may dismiss at any stage any proceedings before it if it considers the proceedings are frivolous or vexatious, and

(i) may exercise, on its own initiative, any function exercisable by it on application, and

(j) may, on its own initiative, inquire into any industrial matter.

10. As presently constituted, the members of the Commission are the Chief Commissioner and Commissioners appointed by the Governor: ss 147, 148. The Commission is usually constituted by a single member: s 155(1)(a).

11. The Act provides a wide range of mechanisms to address issues contained within awards and industrial instruments. The Commission may make an award in accordance with the Act setting out fair and reasonable conditions of employment for employees: s 10. Awards may be varied or rescinded in certain circumstances: s 17. Awards must also be reviewed “to modernise awards, to consolidate awards relating to the same industry and to rescind obsolete awards”: s 19.

12. The meaning of “setting fair and reasonable conditions of employment for employees” in s 10 of the Act was explained by the Full Bench (Walton J, President, Commissioners Stanton and Newall) in City of Sydney Wages/Salary Award 2014 (2014) 247 IR 386; [2014] NSWIRComm 49 (“City of Sydney Award”) at 390-391 [19]-[22]:

[19] The terms ‘fair’ and ‘reasonable’ in s 10 of the Act import a requirement that the conditions of employment set represent a proper and proportionate balance between the entitlements afforded employees and the interests of those employing them.

[20] Consideration of what is fair and reasonable for an employee will necessarily involve a consideration of what is fair and reasonable having regard to the nature and circumstances of the employment afforded to the employee by an employer. That inquiry cannot be made in a vacuum. It must also extend to the broader context in which the employment occurs and ultimately, by effect of s 146 of the Act, the state of the economy in New South Wales.

[21] The assessment required by s 10 will often involve consideration of collective relations between unions and employers or employer associations and, in appropriate cases, consideration of the history of terms and conditions that the parties chose to apply, formally and informally, to employees who will now be covered by the proposed award.

[22] In particular cases, the Commission may be required to take into account not only differences between employers or industries in which employment is undertaken, but relevant differences between employees or classes of employees in a workplace, enterprise, project or industry. What may represent a fair and reasonable condition for one set of employees may not be for another, even where the employees are engaged by the same employer. That particular assessment may depend on the history as well as consideration of the present circumstances of the work to be performed.

13. The Commission has over the years developed Wage Fixing Principles, which provide guidance as to the making or variation of awards. The most recent set of principles were enunciated in State Wage Case 2022 [2022] NSWIRComm 1081 (Chief Commissioner Constant, Commissioner Sloan and Commissioner Webster). These principles, which have their origin in the State Wage Case 1983 (1983) 5 IR 1, continue to play an important role for the Commission’s work.

14. However, in recent years, the powers of the Commission have been constrained to a considerable extent. The effect of s 146C(7) of the Act is that the award-making powers of the Commission are constrained by that section and any policy 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] (French CJ) and [58] (Hayne, Crennan, Kiefel and Bell JJ, as Kiefel CJ then was). The policy can be found in the Industrial Relations (Public Sector Conditions of Employment) Regulation 2014 (NSW) (“the Regulation”).

15. In relation to public sector employees, they may only be awarded increases in remuneration or other conditions of employment if employee-related costs in respect of those employees are not increased by more than 2.5% per annum (or 3% per annum for the 2022-2023 and 2023-2024 financial years) as a result of the increases awarded: cls 6 and 6A of the Regulation. In doing so, it is necessary for the Commission to take into account increases in superannuation contributions: Secretary for The Treasury v Public Service Association & Professional Officers’ Association Amalgamated Union of NSW (2014) 89 NSWLR 688; [2014] NSWCA 138 at 699 [38] (Bathurst CJ, with whom Beazley P, as Her Excellency then was, and Meagher JA agreed).

16. Increases beyond the prescribed percentage can “only” be made “if sufficient employee-related cost savings have been achieved to fully offset the increased employee-related costs beyond 2.5% per annum”. This is a high bar. It is noted that “whole of government savings” would not constitute “employee-related cost savings” because, to do so, would be contrary to the purpose of s 146C as a “fiscal restraint”: Re Crown Employees (Correctional Officers, Department of Corrective Services) Award 2007 for Kempsey, Dillwynia and Wellington Correctional Centres (2014) 248 IR 145; [2014] NSWIRComm 44 at 166-168 [62]-[63] (Walton J, President, Staff J and Commissioner Tabbaa) (“Re Correctional Officers”).

17. However, it is not an insurmountable hurdle. For example, in Re Operational Ambulance Officers (State) Award (No 4) (2016) 255 IR 193; [2016] NSWIRComm 2 (“Re Ambulance Award”), the Full Bench (Walton J, President, Kite AJ and Commissioner Tabbaa) found that the value of overtime savings generated by new rostering arrangements could offset the increase above 2.5% per annum in employee-related costs that resulted from the creation of a new employment classification of “Critical Care Paramedic (Aeromedical)” with higher pay: at 221-222 [116]-[117]. Nevertheless, as I observed earlier this year, the Commission’s power is “highly circumscribed” by s 146C of the Act and the government’s policy promulgated by the Regulation: Secretary NSW Department of Education v The Australian Education Union New South Wales Teachers Federation Branch [2022] NSWSC 263 at [29] (Walton J) (“Education Secretary v AEU [2022]”).

18. An appeal against a decision of the Commission constituted by a single member lies to the Full Bench, which is to consist of at least three members: ss 155(1)(b), 156(1), 187(1). An appeal brought pursuant to Ch 4 Pt 7 of the Act requires leave of the Full Bench unless made by the Minister: ss 188(1), (4). The Full Bench is to grant leave to appeal “if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted”: s 188(2).

19. The requirement for leave to appeal and the Parliament’s intent can be seen by the very comprehensive second reading speech by the then-Attorney General and Minister for Industrial Relations, the Hon Jeffrey W Shaw QC (later a Judge of this Court), for the Industrial Relations Bill 1995 (NSW) (“the 1995 Bill”). The speech (New South Wales, Parliamentary Debates, Legislative Council, 23 November 1995 at pages 3852-3853) relevantly stated as follows:

The system of appeals under the [Industrial Relations Act 1991 (NSW) (repealed)] has given rise to excessive and, oftentimes, unwarranted litigation. The provisions concerning appeals have been revised in a number of key respects with particular emphasis on avoiding such problems. Under these provisions, appeals may be made against any decision of the commission whether made as a result of contested proceeding or made by consent, and - subject to discretionary extension - are to be made within 21 days. …

Appeals to the full bench may be made only by leave; and the bill ensures that stand-alone "leave to appeal" hearings may be heard separately from the overall merits of any appeal. Likewise, the bill specifically permits the full bench to delegate certain functions to a single member. These provisions have the aims of reducing any backlog in the hearing of appeals, and filtering out insubstantial or unmeritorious appeals.

The nature of an appeal must ultimately depend on the statute under which the appeal is authorised. As the proper construction of the appeal provisions in the 1991 Act has been the subject of differing interpretations, it is the Government's intention to resolve the legislative ambiguity concerning appeal principles. The appeal provisions within the bill have been redrafted to provide clear legislative direction concerning the principles to be applied by full benches when considering appeals against discretionary decisions of single members. The approach adopted by the High Court of Australia in judgments such as Mace v Murray - (1958) 92 CLR 370 - and House v The King - (1936) 55 CLR 499 - commends itself as the appropriate principle to apply in appeals against decisions involving an exercise of discretion, which we would regard as including decisions concerning wages and conditions of employment, and unfair dismissals.

The approach endorsed in the bill is that an appellate bench is not justified in interfering with the decision at first instance, except in limited circumstances where the appellate bench reaches a clear conclusion that, by reason of some error, whether of fact or law, the primary tribunal not only has taken a view different from that which the members of the appeal tribunal would have taken, but has failed to exercise properly the discretion committed to it. These appeal principles are intended to apply even in the comparatively isolated circumstances where additional evidence is received by the appellate bench: there is no intention to have two types of appeals and differing approaches to the nature of the appeal principles depending on whether additional matters are adduced. Last, unless such an approach was otherwise inconsistent with an express statutory provision, it is intended that the general appeal principles I have outlined should also apply to decisions made by the Chief Industrial Magistrate.

20. For completeness, I note that the 1995 Bill lapsed when the Parliament was prorogued and was re-introduced in nearly identical terms as the Industrial Relations Bill 1996 (NSW) (“the 1996 Bill”), which later became the Act: see New South Wales, Parliamentary Debates, Legislative Council, 17 April 1996 at page 82 (The Hon Jeffrey W Shaw QC). Nothing turns on this technicality. The second reading speech of the 1995 Bill, when read with the additional remarks of the second reading speech of the 1996 Bill, may be considered in determining Parliament’s intent and the meaning of statutory provisions: Interpretation Act 1987 (NSW) s 34 (“Interpretation Act”).

21. Generally, the Full Bench is likely to grant leave where the issues in the appeal are of some novelty, raise substantial issues of law and principle, and have implications for the wider jurisprudence of the Commission. The proper principles can be summarised as follows:

1. It must be remembered that s 191 of the Act provides that an appeal to the Full Bench is an appeal in the strict sense: King v State Bank of New South Wales (No 2) (2002) 126 IR 407; [2002] NSWIRComm 353 at 427 [64] (Wright J, President, Walton J, Vice-President, and Kavanagh J); Justice Margaret J Beazley (as Her Excellency then was), Paul T Vout and Sally E Fitzgerald, Appeals and Appellate Courts in Australia and New Zealand (LexisNexis Butterworths, 2014) at 450-452 [10.47]. Therefore, the Full Bench should only intervene to correct error and it is not enough that the appellate tribunal would have come to a different view: Aboud v State of New South Wales (Department of School Education) (1999) 92 IR 32; [1999] NSWIRComm 449 at 42-43 (Wright J, President, Walton J, Vice-President, and Schmidt J); Ace Business Brokers Pty Ltd v Phillips-Treby (2000) 100 IR 420 at 428 (Wright J, President, Glynn and Hungerford JJ); Strathfield Group Ltd v Hall (2002) 121 IR 158; [2002] NSWIRComm 373 at 169 [45] (Wright J, President, Peterson and Kavanagh JJ). The Full Bench should not substitute its own views as to a decision that was reasonably open at first instance: Antonakopoulos v State Bank of NSW (1999) 91 IR 385 at 392 (Wright J, President, Walton J, Vice-President, and Commissioner Redman).

2. Leave will not be lightly or automatically granted: Perrott v XcelleNet Australia Ltd (1998) 84 IR 255 at 265 (Hungerford, Peterson and Schmidt JJ). This is because the statutory scheme makes clear that the legislature intended that the Full Bench would filter appeals by granting leave to only those cases meeting the public interest test stated in s 188(2). The raising of a jurisdictional issue by an appellant does not, of itself, establish a basis for the grant of leave. Each case has to be judged against the statutory criterion. When leave to appeal is sought in relation to a jurisdictional issue, the Commission should have regard to whether there is a demonstrable case that the Commission has exceeded or failed to exercise its jurisdiction: Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 at 381-382 (Walton J, Vice-President, Glynn J and Commissioner Patterson) (“Knowles v Anglican Church”).

3. It must be emphasised that the extent to which errors, whether jurisdictional or not, be ultimately established is not a matter to be finally determined on the question of leave but only on a full hearing of the appeal. Leave to appeal is attracted if the Full Bench is satisfied that the appeal raises “serious issues to be tested, are reasonably arguable and are of a nature proper to attract leave to appeal”: Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325; [2001] NSWIRComm 117 at 326 [4] (Walton J, Vice-President, Hungerford J and Commissioner Bishop).

4. It is relevant to consider whether the appeal raises issues going to the proper administration of justice: Humphries v Cootamundra Ex Services and Citizens Memorial Club Ltd (2003) 128 IR 37; [2003] NSWIRComm 211 at 53 [77] (Walton J, Vice-President, Deputy President Harrison and Commissioner O'Neill).

5. Leave would ordinarily, in the absence of changed circumstances, be refused where an appellant raises arguments or presses issues on the appeal which were not squarely raised at first instance: Caltex Petroleum Pty Ltd v Harmer (1999) 92 IR 264 at 269 (Wright J, President, Walton J, Vice-President, and Hungerford J). This is not to say that the admission of new evidence per se would have this result, but that the bringing of, in substance, a new or materially different case on appeal may constitute a basis for the refusal of an application for leave to appeal.

6. Mere contest as to findings of fact which might otherwise remain open on the evidence will generally, in the absence of other considerations, not attract leave: Box Valley Pty Ltd v Price (2000) 97 IR 484 at 484 [4] (Walton J, Vice-President, Hungerford J and Commissioner Cambridge). It must be kept in mind that the Full Bench should not interfere with findings of fact unless the Full Bench is of the opinion that they were not reasonably open on the evidence: Hussmann Australia Pty Ltd v Walker (1993) 31 NSWLR 189 at 201 (Hill J).

22. Consistent with the second reading speech, in exercising its powers under s 192 of the Act, the Full Bench must identify a “House v The King error” (that is, an error that falls within one of the grounds contained in the oft-cited passage in House v The King (1936) 55 CLR 499; [1936] HCA 40 by Dixon, Evatt and McTiernan JJ at 504-505) at least in relation to discretionary decisions: TD Preece & Co Pty Ltd v Industrial Court (NSW) (2008) 177 IR 172; [2008] NSWCA 285 at 187 [77] (Basten JA); Public Service Association and Professional Officers' Association Amalgamated Union (NSW) v Secretary of the Treasury (2014) 242 IR 318; [2014] NSWCA 112 at 326 [27] (Basten JA with whom Ward JA, as her Honour then was, and Bergin CJ in Eq agreeing) (“PSA v Treasury Secretary [2014]”); Public Service Association and Professional Officers Association Amalgamated Union of New South Wales v Roads and Maritime Services (2015) 250 IR 412; [2015] NSWIRComm 16 at 416 [10] (Walton J, President, Kite AJ and Commissioner Newall).

Conciliation and Arbitration of Industrial Disputes

23. Chapter 3 of the Act is titled “Industrial disputes” and sets out a procedure for the Commission to conciliate and arbitrate industrial disputes that arise within its jurisdiction. The Dictionary to the Act defines “industrial action” and “industrial dispute” in the following terms:

industrial action means a strike by employees or a lock-out by an employer, and includes—

(a) a practice relating to the performance of work, adopted in connection with an industrial dispute, that restricts, limits or delays the performance of work, or

(b) a ban, limitation or restriction affecting the performance of work, or the offering or acceptance of work, that is adopted in connection with an industrial dispute, or

(c) any failure or refusal in connection with an industrial dispute to attend for work or to perform work,

but does not include any action taken by employees with the agreement of their employer or any action taken by employers with the agreement of their employees.

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.

24. Section 130(1) of the Act allows certain bodies, including an employer and industrial organisation, but not individual employees, to notify the Commission of an industrial dispute. Alternatively, the Commission itself may act on its own initiative to resolve an industrial dispute: s 130(2).

25. The Commission has the power to convene a compulsory conference: s 131(1). To facilitate the effective resolution of a dispute, the Commission may require the attendance of any person whose presence the Commission considers would help in its resolution: s 132(1). Alternatively, the Commission may confer with a person without requiring their attendance: s 132(3).

26. Section 133 of the Act requires that the Commission “must first attempt to resolve an industrial dispute by conciliation”. In doing so, the Commission is under a statutory command “to do everything that seems to be proper to assist the parties to agree on terms for the resolution of the dispute”: s 134(1). The Commission may make recommendations or give directions: s 134(2). This includes making recommendations or giving directions to the parties to bargain in good faith: s 134(4). The Commission can make arrangements or give directions to convene and conduct conferences with the parties: s 134(3).

27. Sometimes, conciliation will resolve an industrial dispute. Other times, it may not. Only if an industrial dispute is not resolved by conciliation may the Commission deal with the dispute by arbitration: s 135(1). Before arbitration, the Commission must issue a certificate of attempted conciliation: s 135(2). A certificate is should not be lightly issued because they signal a failure of the primary dispute settling mechanism under the Act. Before a certificate is issued the relevant party must be given a reasonable opportunity to be heard as to whether a direction or recommendation under s 134(2) of the Act should be taken into account: NSW Teachers’ Federation v NSW Department of Education and Training (2000) 100 IR 441; [2000] NSWIRComm 169 at 445 [15] (Wright J, President, Walton J, Vice-President, and Commissioner Connor).

28. Conciliation (or, more aptly, its failure) is, therefore, the “jurisdictional prerequisite” to the exercise of any powers by the Commission in arbitral proceedings: Construction, Forestry, Mining and Energy Union (NSW) v Newcrest Mining Ltd (2005) 139 IR 50; [2005] NSWIRComm 23 at 57 [20] (Walton J, Vice-President, Boland J, as his Honour then was, and Staff J). The Act discusses the interplay between the issuing of a certificate and industrial action in two provisions:

1. The Commission must consider the effect that any industrial action in connection with the industrial dispute is having on the parties and public generally: s 135(4); and

2. The Commission “must…without delay” issue a certificate if the Commission decides that industrial action or duress necessitates the exercise of its arbitral power: s 135(7).

29. In Education Secretary v AEU [2022], I outlined the aspects of s 135 of the Act at [48] as follows:

(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.

30. In arbitration proceedings, the Commission has a broad range of powers under s 136 of the Act. That section states:

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.

31. With respect to a dispute order in s 136(1)(c) of the Act, ss 137 and 138 of the Act 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.

32. The second reading speech of the 1995 Bill (New South Wales, Parliamentary Debates, Legislative Council, 23 November 1995 at pages 3850-3851 (The Hon Jeffrey W Shaw QC)) relevantly stated as follows:

The process is simple: if consultation at the workplace proves futile, employers and unions will be encouraged to use the expertise of the commission in the resolution of their differences, first by conciliation, and with arbitration available as required. At all stages throughout this process the parties will be held accountable for their conduct. To detail this process further, initially the commission must deal with all industrial disputes by conciliation. When attempting conciliation, the commission is empowered to do everything it considers proper to assist the parties to resolve the dispute, including arranging for compulsory conferences. Consistent with addressing concerns raised in the review process, the paper work needed to bring a dispute before the commission will be vastly simplified.

…

[The Commission] may use any or all of the following devices: continue conciliation; make recommendations or directions; make or vary awards; make dispute orders; and make any other kind of order it is authorised to make, including orders on an interim basis. It dispenses with the artificial and academic constraints of the "interests/rights" dichotomy, and truly focuses on ensuring the resolution of disputes in a prompt and fair manner with the minimum of legal technicality. The legislation recognises that an essential part of the powers which should be available to the commission to resolve disputes is the ability to direct the actions of the parties.

33. It is clear that the Act makes the Commission the principal organ to assist with the resolution of industrial disputes. It is also clear that Parliament intended for industrial disputes to be resolved by negotiation between the parties themselves or conciliation with the assistance of the Commission (following notification under s 130). This is evidenced by the fact that the Commission’s arbitral powers are not enlivened unless the Commission is satisfied that “there is no reasonable likelihood that the dispute will be resolved by conciliation”: s 135(6). To facilitate effective conciliation, Parliament conferred broad and significant powers on the Commission to require attendance of people, make recommendations and directions, and to facilitate conferences between the parties. This is so that the Commission is well placed to assist parties in resolving their disputes by conciliation.

34. In Fire & Rescue NSW on behalf of the Department of Premier and Cabinet v Fire Brigade Employees' Union of New South Wales (2013) 235 IR 261; [2013] NSWIRComm 63 (“FRNSW v FBEU [2013]”), the Full Bench (Boland J, President, Walton J, Vice-President, and Staff J) explained at 273-274 [46] that:

The conciliation process is not so much about making judgments about the rights and wrongs of industrial action; rather it is principally designed to focus on the issues in dispute and to bring about a quick, fair and just resolution of those issues by agreement or upon the basis of the Commission’s non-binding recommendation or direction and with a minimum of legal technicality. If successful, it would follow any industrial action would cease.

35. It is in this context that the industrial relations system in New South Wales, the powers of the Commission and, most relevantly, the nature of dispute orders, must be understood.

Dispute Orders

36. It is plain from the above analysis that Parliament intended that the making of dispute orders to be a last resort: Bluescope Steel (AIS) Pty Ltd v Australian Workers' Union, New South Wales [2005] NSWIRComm 260 at [29] (Boland J, as his Honour then was). Accordingly, there is no presumption that, in the face of threatened industrial action, a dispute order will be made: Industrial Relations Secretary v Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales [2022] NSWIRComm 1042 at [23] (Commissioner Sloan) (“Industrial Relations Secretary v PSA [2022]”).

37. The use of the word “may” in ss 136(1) and 137(1) indicate the discretionary nature of the power to make dispute orders: NSW Department of Education and Training v NSW Teachers Federation; Re Student Reports Bans (2006) 157 IR 329; [2006] NSWIRComm 346 at 336 [36] (Deputy President Harrison) (“Education Department v NSWTF [2006]”). In so doing, the Commission must have regard to the public interest, objects of the Act and the likely effect on the economy of New South Wales: ss 3, 146(2).

38. It must be remembered that dispute orders are not lightly made by the Commission: City of Botany Bay v Federated Municipal and Shire Council Employees' Union of Australia, New South Wales Division [2000] NSWIRComm 85 at [8] (Schmidt J) (“Botany Bay v FMSCEU”); BHP Steel Ltd v The Australian Workers' Union, New South Wales (2003) 136 IR 240; [2003] NSWIRComm 423 at 261 [88] (Haylen J) (“BHP v AWU [2003] NSWIRComm 423”).

39. In Sydney Water Corporation v Australian Services Union (NSW and ACT Branch) (2005) 146 IR 388; [2005] NSWIRComm 305 (“Sydney Water v ASU”), the Full Bench (Wright J, President, Walton J, Vice-President and Commissioner Stanton) stated at 403-404 [37] that, in furthering the objects of the Act, “it is vital that the Commission recognise the broad discretion granted by [the Act] to fashion appropriate relief by reference to the merits of the industrial dispute itself and the steps necessary to resolve it”. This involves a variety of considerations, including the “public interest in managing the industrial dispute in a fair and just manner with minimum disruption and disputation”. This passage was cited approvingly in BlueScope Steel (AIS) Pty Ltd v Australian Workers’ Union, New South Wales (2006) 153 IR 176; [2006] NSWIRComm 149 at [24]–[26] (Wright J, President, Walton J, Vice-President, and Marks J) (“BlueScope v AWU [2006] NSWIRComm 149”) and Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales v Industrial Relations Secretary (2018) 96 NSWLR 762; [2018] NSWCA 39 at 791 [128] (Bathurst CJ with whom Gleeson and Simpson JJA agreed) (“PSA v Industrial Relations Secretary [2018]”).

40. This observation is consistent with the view expressed by the Marks J in Director General, NSW Department of Education and Training and the Managing Director of TAFE v NSW Teachers Federation [2010] NSWIRComm 77 (“Education Director-General v NSWTF [2010] NSWIRComm 77”) at [14]-[15]:

[14] However, it is also necessary to make reference to one additional matter, namely the context in which dispute orders are made and the part that dispute orders play in the overall regulation of industrial matters in New South Wales. Chapter 3 of the Industrial Relations Act deals with industrial disputes and provides for mandatory conciliation and then arbitration. There is provision in the Act for the enforcement of awards and determinations made by the industrial tribunal. Furthermore, the tribunal is empowered to make dispute orders (s 136) of a kind described in s 137 and subject to conditions set out in s 138. Section 139 empowers this Court to impose a penalty for breach of a dispute order. Accordingly, the regulation of industrial disputes in New South Wales involves the empowerment of a third party umpire to make binding orders on parties which can be enforced through mechanisms established by the State and which include the creation of civil penalties as part of the armoury of measures that may be taken to ensure compliance with and enforcement of awards, orders and determinations.

[15] The existence of a system such as that established by the Industrial Relations Act 1996 reflects a sophisticated and civilised approach to dealing with industrial disputation, including differences of opinion which do not necessarily manifest themselves in any industrial action.

41. I also respectfully agree with the observations of Boland J (as his Honour then was) in Bluescope Steel (AIS) Ltd v Australian Workers' Union (NSW) (2005) 138 IR 324; [2005] NSWIRComm 99 (“BlueScope v AWU [2005] NSWIRComm 99”) at [106(1)] where his Honour stated:

Dispute orders are rarely made by members of the Commission. Long experience has demonstrated that most matters can be resolved by conciliation and/or arbitration without resorting to the prospect of sanctions. The making of a dispute order is a serious step given the consequences for contravention. Persons against whom a dispute order is made are bound to take it seriously, especially members, officials and employees of organisations who may be putting in jeopardy the very existence of their organisation.

42. The relevant principles to the exercise of discretion can be seen in the Commission’s past decisions.

43. First, the ability of a union or employer to use the Commission’s powers, and whether conciliation and arbitration has been used, is a significant factor that informs the discretionary considerations of the Commission when deciding whether to make dispute orders. In Director General, NSW Department of Health v New South Wales Nurses Association (No 2) [2010] NSWIRComm 163 (“Health Director v NSWNA [2010]”), the President, Boland J, stated at [17]:

Nevertheless, it was always open to either party, or the Association in particular, given its frustration in not being able to make progress with the Department, to approach the Commission for assistance, but no approach was made. It is a weak excuse to say that the Department would only maintain its opposition in Commission's proceedings and that is why no application to the Commission was made. It completely overlooks the Commission's extensive conciliation and arbitration powers. It was submitted by counsel for the Association that the Association wanted the nurse/patient ratio dealt with quickly and it seemed to be suggested an arbitration on such a complex issue would be interminably long, citing the Department's alleged penchant for drawn out arbitration proceedings.

44. In BlueScope v AWU [2006] NSWIRComm 149, the Full Bench (Wright J, President, Walton J, Vice-President, and Marks J) held at 187-188 [26] that:

Many industrial disputes have the potential to conflagrate and the Commission’s broad discretionary powers — including the power to make orders under s 137(1)(a) — are vital to prevent such a conflagration. The ability, in arbitration, to order industrial action to cease — to enable the parties to resolve the dispute efficiently and fairly under the auspices of the Commission rather than leaving the matter to be determined by the economic and industrial power of the participants without reference to the public interest — is one of the most important features of the system created by the Act.

45. Secondly, the conduct of the parties in industrial disputes, including whether there has been any good faith bargaining, meaning negotiations and participation in conciliation, is a relevant factor. It is relevant to consider whether there has been compliance of the Commission’s previous orders and recommendations: Botany Bay v FMSCEU at [6]-[7] (Schmidt J); Industrial Relations Secretary v PSA [2022] at [34]-[35] (Commissioner Sloan).

46. Thirdly, the effect on the economy of New South Wales is a mandatory relevant consideration under s 146(2) of the Act. In FRNSW v FBEU [2013], it was identified that there is a “need to protect the public interest from the damaging effects of industrial action”: at 272 [41] (Boland J, President, Walton J, Vice-President, and Staff J). In this respect, any negative effect on the economy, disruption to the provision of essential services, health and safety risks, and the broader implications for the public should be considered.

47. Those factors are also relevant in the Commission’s award-making context and guidance can be derived from those cases, which also rely on s 146(2) of the Act: see generally Application for Crown Employees (Public Sector – Salaries 2020) Award and Other Matters (No 2) (2020) 301 IR 321; [2020] NSWIRComm 1066 (Chief Commissioner Constant, Commissioners Murphy and Sloan); Crown Employees (Police Officers – 2009) Award (No 2) (2012) 220 IR 192; [2012] NSWIRComm 104 (Walton J, Vice-President, Staff J and Commissioner Tabbaa); Re Health and Community Employees Psychologists (State) Award (2001) 109 IR 458; [2001] NSWIRComm 302 at 479 [52] (Wright J, President, Hungerford J, Deputy President Sams and Commissioner McKenna).

48. In Re Crown Employees (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award (2004) 133 IR 254; [2004] NSWIRComm 114, an enlarged Full Bench (Wright J, President, Walton J, Vice-President, Boland J, as his Honour then was, Deputy President Grayson and Commissioner McLeay) explained at 365-366 [432] the treatment of economic considerations in the award-making process as follows:

The economic and financial position of the State and the effects of our decision on the New South Wales economy have played a significant role in our decision, but not a determinative one. It is our statutory duty to fix fair and reasonable rates of pay and conditions. In a matter, such as this one, where a compelling basis for increases in rates of pay has been demonstrated, then the Commission must give recognition to that conclusion even though it may temper the final result in recognition of economic considerations. The terms of s 146 of the Act require no more than this, particularly in the light of the paramount requirements of s 10 of the Act.

49. In the same way, economic factors are not determinative in an application for dispute orders, but they may properly sway or temper whether dispute orders are made and, if made, the extent or reach of those orders.

50. Fourthly, when considering the consequences of industrial action, the Commission is not limited to only considering economic impacts. The “public interest” is very broad. For example, the public interest can include the effect on primary and secondary school children and their education: see New South Wales Department of Education v New South Wales Teachers Federation (2010) 194 IR 340; [2010] NSWIRComm 55 at 349 [41] (Staff J) (“Education Department v NSWTF [2010]”).

51. Fifthly, any provisions contained in awards about dispute resolution processes are also relevant because it would be inconsistent with the objects of the Act to “turn a blind eye” or disregard terms or obligations under an industrial instrument made under the Act: see, eg, Bluescope Steel Limited (formerly BHP Steel Limited) v The Australian Workers' Union, New South Wales (No 2) (2005) 141 IR 329; [2005] NSWIRComm 36 at 330 [4(2)] (Wright J, President, Walton J, Vice-President, and Marks J) (“BlueScope (No 2) [2005]”); Transport Secretary v The Australian Workers’ Union, New South Wales [2022] NSWIRComm 1053 at [9]-[10], [12] (Commissioner Sloan) (“Transport Secretary v AWU”); Health Secretary v New South Wales Nurses and Midwives’ Association [2022] NSWIRComm 1047 at [13]-[14] (Commissioner Sloan) (“Health Secretary v NSWMNA [2022] NSWIRComm 1047”). Legislative and regulatory provisions can also be relevant: Education Department v NSWTF [2010] at 350 [44] (Staff J).

52. Sixthly, the Commission has discretion to refuse to make dispute orders that are oppressive or would lack any utility. In Education Department v NSWTF [2006], Deputy President Harrison declined to make dispute orders because he was not satisfied that there existed in schools, a capacity to produce certain school reports, or that it was reasonable that they be produced. The Commission found that a dispute order ordering a person to cease or refrain from taking industrial action in those circumstances had an “unacceptable potential to create harsh, onerous and unreasonable working conditions”: at 339 [63]. The Commission also stated that it is “reluctant to make orders that cannot be complied with”: at 339 [64].

[157] I agree with the primary judge that general deterrence is an important consideration. If the industrial relations system embodied in the IR Act is to achieve its objects, any penalty needs to incorporate a significant level of general deterrence. I agree with the remarks of the primary judge that there was little need for specific deterrence in the circumstances of the present case. I also agree with his comments on the issues of remorse and contrition.

[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.

806. His Honour considered that the appropriate penalty is a “fine” of $25,000: at 795 [161]. It is noteworthy that, in that case, the maximum penalty was $150,000 under s 139(4)(b) of the Act because the union had penalties previously imposed for a contravention of an earlier dispute orders and the contravention had lasted 14 days.

807. In Education Secretary v AEU [2022], which has been discussed throughout this judgment, the defendant union admitted to organising and taking industrial action. The dispute orders in that case had required the defendant union to issue a public statement to retract and revoke its direction to members to strike, remove any references to a strike on its websites and documents, and inform its members of the orders and direct they comply with the order: see [12]. The contraventions by the defendant union were blatant and deliberate in their defiance of the orders: at [361]. The impact of the strike was widespread and resulted in the cessation of a great number of schools across NSW, as well as inconvenience to the community and working parents: at [374]-[381].

808. The defendant union had previously contravened earlier dispute orders (at [388]) but there had been a nearly decade long abstinence by the Federation from industrial action (at [392]). General deterrence was given substantial weight: at [397]. The penalty also reflected an element of specific deterrence: at [401]. The defendant union did not make any expressions of remorse or contrition: at [410].

809. In that matter, I imposed a penalty of $25,000 for the contravention concerning the organisation of the strike by a single course of conduct which occurred over 8 days where the maximum penalty was $45,000: at [415]. I imposed a penalty of $8,000 for engaging in the strike itself where the maximum penalty was $10,000: at [416]. Applying the principle of totality, an enforcement order was made for a penalty of $30,000 under s 139(3)(e) of the Act: at [417]-[418].

810. Education Secretary v AEU [2022] thus represents the highest penalty previously imposed by this Court or the former Industrial Court for contraventions of a dispute order. This is not to say that the highest previous penalty sets some kind of “maximum”. The maximum penalty remains that set by Parliament in s 139(4) of the Act. Nevertheless, this survey of past decisions demonstrates the range of penalties that have been applied to various circumstances.

Assessment of Penalty

Maximum Penalty

811. I turn first to the issues raised by the parties in relation to the maximum penalty. In criminal sentencing, the maximum penalty is relevant in the sense described by Gleeson CJ, Gummow, Hayne and Callinan JJ in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 (“Markarian”) at 372 [31] as follows:

[C]areful 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.

812. The well known statement of principle in Markarian has been applied in a civil penalty context: Education Secretary v AEU [2022] at [402]-[403] (Walton J); FBEU v FRNSW [2014] at [50] (Walton J, President); Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd (2016) 340 ALR 25; [2016] FCAFC 181 at 63 [154]-[155] (Jagot, Yates and Bromwich JJ) and the authorities cited therein.

813. The defendant has not previously been penalised for a breach of dispute orders. Accordingly, s 139(4)(b) of the Act has no application. The maximum penalty is to be worked out under the terms of s 139(4)(a) of the Act.

814. The contravention under pleaded contraventions C to I for failing to cease organising and continuing to induce, advise, authorise, support, encourage, direct, aid or abet members of the defendant to take or organise industrial action lasted for seven days from 25 to 31 March 2022. Accordingly, the maximum penalty is $40,000.

815. Regard should be had to the fact that the Parliament has provided for a higher maximum penalty for the first day of the contravention and a lower penalty for each subsequent day the contravention occurs: Education Director-General v NSWTF [2010] NSWIRComm 44 at [36] (Staff J).

Nature and Extent of the Contravening Conduct and Deliberateness of the Contravention

816. The March Orders made by the Commissioner were expressed in clear terms, well recognisable by industrial participants within the NSW industrial system. I accept the submission of the prosecutor that the contravention by the defendant were undertaken in blatant and deliberate defiance of the March Orders.

817. On 30 March 2022, Mr Holmes sent a letter to Mr Minns confirming that the Association’s Council had "considered the issue and the numbers made available to it of nurses and midwives on furlough in the Public Health System and continues the commitment to providing life preserving care, but further resolves to continue the industrial action voted on by the NSWNMA COD and Branches for Thursday 31 March."

818. The Executive and Council of the Association, who are responsible for management of the Association, took a conscious decision in the face of the March Orders to proceed with the 24-hour strike. The defendant’s conduct in its Council resolving to continue organising the industrial action; sending an email to its members that “[i]t’s time to hold strong, continue the fight and attend your rally as planned”; issuing of a directive to the effect that the strike will go ahead in defiance of the orders; and publishing a post on Facebook that “[n]urses and midwives will be taking strike action tomorrow … Will you join us?" was in deliberate defiance of the Commission’s order made on 25 March 2022. This conduct was not “passive” conduct or a “contravention by omission”. They were wanton acts by the defendant in disobedience of the order and sanctioned by the Executive of the Association.

819. There are some factors, however, which ameliorates the objective seriousness of this contravention. The industrial action was for a short duration of one day and was envisioned to be of that duration.

820. The defendant had given advance notice to the prosecutor that it intended to take industrial action and this allowed the prosecutor to notify the industrial dispute to the Commission. After the March Orders were made, the defendant, through its Branch representatives, gave notice as to strike action in the days leading up to the strike. I accept the evidence in the First Fitzsimons Affidavit that this placed significant pressure on hospitals. However, it is also clear that it did enable hospital nursing management, albeit under great pressure, to organise meetings, collect information about the number of striking nurses and midwives, and reorganise surgeries and procedures.

821. The defendant had kept the prosecutor updated on meetings and votes undertaken by the relevant Branches and promptly replied to inquiries by officers or employees of the prosecutor about the extent and scope of its industrial action. In some Branches, the evidence shows that the Branch Executive and Association were encouraging individual members to advise their Nursing Unit Manager, Midwifery Unit Manager or direct line manager as to whether they are taking industrial action.

822. The evidence also shows that the defendant and its officers or members within its Branches made an effort to ensure that life-preserving care could continue and sought to prevent extreme disruption to patient services. This was reflected in some of the correspondence to the fact that members of the defendant felt bound by the International Council of Nurses Code of Ethics and the need to provide safe care in health practices, services and settings.

823. An example of this can be seen in the Tullamore Multi Purpose Service Branch (“Tullamore Branch”). A letter sent by Branch President, Ms Emma Schubert, and Branch Secretary, Ms Julie Strudwick, to the Health Service Manager of Tullamore Multi Purpose Service, Ms Katrina Mulligan, dated 28 March 2022, which stated that the Branch is committed to “ensure that life preserving staffing is maintained during this 24 hour [strike] period”. The authors of that letter recognised that “due to the already existing critical staff shortages at Tullamore and a daily inability to fill the roster, the members will not have capacity to strike for any length of time”. Members of the Tullamore Branch imposed work bans and would prioritise and attend to “only direct essential patient care”; the members on shift on 31 March 2022 would wear a red t-shirt to work; and, those members would “[t]ake “turns” in a 30 minute “walk out””. This is a departure from how other Branches had decided to take strike action, which was predominantly to have their members to stop work for a number of hours.

824. However, there were some places where the executive management and Branch members were not in agreement. At 5:00pm on 30 March 2022 (the day before the strike), an organiser employed by the defendant, Mr Mark Murphy, emailed a member of Nursing management, Ms Marie Baxter, to indicate that the Branch members did not agree to the Blacktown Mount Druitt Hospital executive’s position of Emergency Department staffing on the next day. This email was sent very late and, as the First Fitzsimons Affidavit demonstrates, this resulted in time consuming negotiations with staff to adjust the nursing roster. It does not appear from that email that Mr Murphy proposed another alternative staffing arrangement to the hospital executive.

825. The evidence also shows that Ms Johnson had emailed representatives of the Association, Mr John Paul Marx and Mr Holmes, on 30 March 2022 with a detailed request for staff because John Hunter Hospital was “significantly compromised in ICU, ED and Surgery for LIFE SAVING CARE”. Ms Johnson recounts in her affidavit that, later that day, in a meeting between two representatives of hospital management and two representatives of the Association, the Association agreed to the suggested level of staffing but gave “no guarantee that the members would agree to return” and that “if on strike day there were further deficits then it was not the responsibility of the NSWMNA and that we, hospital management, would need to manage this”. Ms Johnson stated “[w]hat we argued for at that meeting and in my previous email correspondence was the absolute minimum staffing in our most critical care areas”.

826. When viewing the evidence as a whole, I am of the view that most Branches of the defendant made a real effort to minimise the impact of its strike on the patients that nurses and midwives care for. It appears that, at least at some Branches like the Tullamore Branch, the nature of the industrial action was tailored or adjusted to meet patient needs and work demands. There was a recognition by most Branches and members of the defendant that some patients were vulnerable. In those Branches, the defendant, its officers and members acted with care to take steps to avoid impacting essential and life-preserving care. However, it can be observed that this sentiment was not shared by all members and Branch representatives. There were strong pleas from “on-the-ground” management in some areas and the response by the defendant was not as responsive or compassionate as those in in other areas.

827. Overall, the evidence shows that the industrial action was not taken in a fashion which may be described as precipitous and designed to inflict maximum damage on or disruption to the operations of the Ministry of Health. This is not to say that the prosecutor did not need to take very significant logistical steps to ameliorate the impact of the strike. But it is an acknowledgement that a real effort was made to reduce the impact on patients by most Branches and members of the defendant. This is in contrast to the attitude of other public sector unions in the past that had merely left it to individual employees on the day to decide whether or not to take strike action and there would be chaos in essential public services with no ability to advise those affected of the facilities available or whether there would be closures: see Education Director-General v NSWTF [2012] NSWIRComm 58 at [38] (Haylen J).

Loss and Damage Caused

828. The First Fitzsimons Affidavit showed that at Westmead Hospital and WSLHD:

1. The hospital was only able to notify patients of cancelled surgery/procedure with approximately 2 days’ notice, which particularly inconvenienced patients travelling form Greater NSW who are required to book accommodation and travel arrangements. Certain patients were required to commence preoperative preparations, which if done without a resulting surgery (and delay in surgical procedure) can have significant adverse effects on their care;

2. The Senior Nursing Managers utilised casual staff members, the payment of overtime and reprioritised workloads in theatre for the day of the strike. Hospital indirect nursing staff had to undertake front line nursing duties. As a result of redirecting staff because of the shortages caused by the strike, a Clinical Nurse Educator (whose role is to support and educate less experienced nursing staff) was not available. Several Nurse Managers from the District office had to undertake front line nursing duties across different facilities; and

3. 19 patients had their surgeries cancelled and all elective surgeries were cancelled. Westmead Hospital was only able to run four theatres during the strike, instead of the normal 16.

829. The Johnson Affidavit demonstrates that approximately 278 nurses and midwives (approximately 34% of the average 823 staff rostered on to work in a 24 hour period) from John Hunter Hospital participated in a 24 hour strike. The salient features from the Johnson Affidavit show that, on 31 March 2022, the impact of the strike at that hospital was as follows:

1. In relation to midwifery services, there were no high-risk psychological midwife services provided in maternity and gynaecology; the antenatal clinical high risk midwife list was cancelled and rescheduled; two Newcastle community antenatal clinic midwife lists were cancelled and rescheduled; there was no maternal foetal medicine referral midwife available; the induction of labour was limited to 2 (usually 4); caesarean sections were limited to 1 (usually 3); and, clinical services were limited to urgent only in the maternity and gynaecology day unit;

2. A number of wards/units/services worked below their normal nursing allocation, including ward F3, where the morning and night shift were not able to be filled;

3. Two planned cardiothoracic surgeries cancelled.

4. 5 out of the 15 surgical theatres were operational, which meant that only urgent surgeries were prioritised. As a result, 31 theatre cases were cancelled;

5. 2 Transcatheter Aortic Valve Implantations (which is a procedure that aims to improve a damaged aortic valve in the heart) were cancelled; and

6. 37.5 hours of acute work, which is surgery that is required to stabilise a patient before they can leave the hospital, delayed a day or more increasing hospital length of stay and potentially patient outcomes.

830. The defendant did not refute this evidence but rather noted that a statement made by the prosecutor indicated that the disruption caused minor disruptions and delays to health services and that hospitals maintained life preserving staff.

831. Overall, I am satisfied that the disruption caused to the public health system was substantial and not insignificant, notwithstanding the effort made by the defendant and some of its members to reduce or mitigate that impact. I am satisfied that some patients were inconvenienced to a considerable extent by the shortage of staff. It is clear that some patients had important medical procedures cancelled and delayed. I am also satisfied that the provision of the use of casual staff members and payment of overtime would likely have come at a cost to the prosecutor although this amount was not quantified. I accept that the evidence of the impact on Westmead Hospital, WSLHD and the John Hunter Hospital is representative of the impact on other LHDs in the State.

832. I am also concerned that some employees who worked on the day of the strike may have been placed at in a health and safety risk given the significant amount of time worked and the demands associated with a shortage of staff. The Johnson Affidavit describes that the Nurse Manager in the Emergency Department in the John Hunter Hospital managed that department from 7:00am to 1:30pm and then again from 9:15pm to 7:15am the next day, totalling 16 hours.

833. I am satisfied that the strike placed some patients and other employees in the Health Service at risk but I am not satisfied from the evidence that any patient was placed in life-threatening risk.

General Deterrence

834. In PSA v Industrial Relations Secretary, Bathurst CJ (with whom Gleeson and Simpson JJA agreed) stated at 795 [157]:

I agree with the primary judge that general deterrence is an important consideration. If the industrial relations system embodied in the IR Act is to achieve its objects, any penalty needs to incorporate a significant level of general deterrence.

835. This can be contrasted with the remarks of Boland J, President, in Treasury Secretary v PSA [2013] at 359 [48]-[49] as follows:

[48] As it was observed in Fire and Rescue NSW (on behalf of Department of Premier and Cabinet) v New South Wales Fire Brigade Employees’ Union [[2012] NSWIRComm 76] at [41], one of the objectives of imposing a penalty under s 139 is to deter the offender from contravening the Act in future as well as others that might contemplate similar offences.

[49] It has previously been observed by the Court in other proceedings that the incidence of contraventions of dispute orders is rare or almost non-existent. In those circumstances, any element for general deterrence must be small at most: Bluescope Steel (AIS) Ltd v Australian Workers’ Union (NSW) (No 2) [2005] NSWIRComm 210 at [53]; Bluescope Steel Ltd (formerly known as BHP Steel Ltd) v Australian Workers’ Union (NSW) [2006] NSWIRComm 338 at [34]; Director-General, NSW Department of Education and Training v NSW Teachers Federation [2010] NSWIRComm 44 at [47].

836. In Education Secretary v AEU [2022], I reconciled these statements of general deterrence at [397] as follows:

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.

837. I agree with the prosecutor that, if the Commission’s authority is to be upheld, then participants in the industrial relations system who gain the benefits of that system must face a sufficient deterrent against flouting lawfully made dispute orders. There is a continuing need to deter potential contraveners from disregarding and disobeying the orders of the Commission. But where there has been a flagrant and deliberate defiance, there is a heightened need to give substantial weight to general deterrence, as observed in PSA v Industrial Relations Secretary [2018] at 795 [157] (Bathurst CJ) and Education Secretary v AEU [2022] at [397]. I believe that this is consistent with observations above where I discussed Pattinson. In this case, general deterrence should be given full force in the penalty.

Specific Deterrence

838. The imposition of a penalty may reflect the need to specifically deter a union from committing similar offences in the future: Australian Iron & Steel Ltd v Federated Ironworkers Association [1961] AR (NSW) 304 at 311 (Cook, Beattie and Kelleher JJ). In that case, however, the Commission found that the executive of the union was already sufficiently aware of the need to prevent further errors of omission by its officers so the Commission gave no weight on this factor.

839. The defendant has not been found to have contravened dispute orders before these proceedings. This is the first occasion since the organisation was established in 1931. This demonstrates that the defendant has had good industrial behaviour over a very long period of time.

840. On the other hand, as I have noted above, the defendant’s defiance of the Commission’s order was brazen and serious. The evidence shows that the Association is ready and willing to press ahead with industrial action despite dispute orders, on their face, being made in order to achieve their purposes.

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

Subjective Factors

842. It is common knowledge in the context of industrial relations in this State that the defendant has a long history of not engaging in industrial action in support of demands made on behalf of its members. (I note that I had put this matter to the parties on the second hearing day and indicated that this was based on my knowledge of the Association, its history and, more generally, industrial relations in this State.)

843. Although there have been a number of dispute orders made against the defendant in the course of industrial disputation (see, eg, Health Director v NSWNA [2010] at [25] (Boland J, President); Secretary, Ministry of Health in respect of Hunter New England Local Health District and New South Wales Nurses and Midwives’ Association [2021] NSWIRComm 1046 at [20] (Commissioner Webster); Health Secretary v NSWMNA [2022] NSWIRComm 1047 at [26] (Commissioner Sloan); Health Secretary v NSWNMA [2022] NSWIRComm 1071 at [38] (Commissioner Sloan)), it can nonetheless be concluded that the defendant has generally had a good record in terms of industrial behaviour over a long period of time, including by complying with orders, directions and recommendations of the Commission, and actively participating in conciliation (see, eg, Director General, NSW Department of Health and New South Wales Nurses Association (No 3) [2010] NSWIRComm 190 (Boland J, President)).

844. In any event, and largely to the same outcome, I consider that, contrary to the submission of the prosecutor, the defendant’s industrial record can, to a large extent, be established on the evidence before the Court that the defendant has not been found to have contravened a dispute order in the past or committed a criminal offence.

845. I conclude that the defendant has historically been a good industrial citizen, which is deserving of some leniency: see FRNSW v FBEU [2012] at [42].

846. Where there is an admission to contravening a dispute order, the Court should discount the penalty that would otherwise have been imposed to reflect the utilitarian value for the saving of costs and expenses, and the time of the Court in dealing with this matter: Education Secretary v AEU [2022] at [409] (Walton J); Education Director-General v NSWTF [2010] NSWIRComm 44 at [49] (Staff J). Here, the defendant admitted to pleaded contraventions H and I (subject to a question of validity) but put the prosecutor to proof on pleaded contraventions C to G. It is appropriate that a small discount be given in these circumstances.

847. There is no evidence of contrition or regret of the conduct in breach of the defendant’s obligations under the dispute order.

Conclusion

848. In determining the appropriate penalty, all of the relevant factors must be taken into account by way of an instinctive synthesis that identifies all the relevant factors, discusses their significance and then arrives at a single appropriate result which takes due account of them all: Markarian at 375 [39] (Gleeson CJ, Gummow, Hayne and Callinan JJ).

849. Having regard to the above factors, I am satisfied that it is not appropriate to dismiss the matter under s 139(3)(a) of the Act. The past decisions where contravention proceedings were dismissed – including Education Director-General v NSWTF [2000] NSWIRComm 103, BlueScope (No 3) [2006] and BlueScope (No 2) [2005] – involved an apology, statement of regret or a commitment to rectify or remedy the breach by the contravener. Nothing of that kind is present in this case. Furthermore, the defendant’s brazen defiance of the Commission’s orders must attract a significant penalty to both generally and specifically deter such future conduct.

850. The contravention of the March Orders by organising the strike and inducing, advising, authorising, supporting, encouraging, directing, aiding or abetting members of the defendant to organise or take industrial action over 7 days is, in my view, objectively serious.

851. 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.

852. I have concluded that the contravention concerning the organisation of the strike by a single course of conduct which occurred over seven days (pleaded contraventions C to I on the Amended Summons) should attract a penalty of $25,000.

853. If I am wrong on the validity of the February Orders and they are valid, I would have imposed a penalty of $11,500 for pleaded contravention A on the Amended Summons (which attracts a maximum penalty of $15,000). In addition to the above factors, regard would be had to the evidence in the First Fitzsimons Affidavit and Johnson Affidavit as to the particular disruption, inconvenience and impact caused by the strike on 15 February 2022.

854. I note that a penalty imposed under s 139(3)(e) of the Act may be recovered in the same way as a penalty imposed by this Court for an offence against the Act: s 139(5) of the Act. A monetary penalty imposed by this Court for an offence is a “fine” under s 4(1) of the Fines Act 1996 (NSW) (“Fines Act”) and thus the Fines Act applies: see BHP v AWU [2003] NSWIRComm 151 at [92] (Haylen J). Accordingly, the penalty is payable within 28 days: Fines Act s 7(1).

CONCLUSION

855. In conclusion, the attacks by the defendant on the validity of the February and March Orders are properly characterised as collateral attacks. The Court has a discretion to decline to hear and determine a collateral attack. However, having regard to all the circumstances of this case, it should not exercise that discretion.

856. The Commission, when making dispute orders in arbitration proceedings, is under an implied statutory obligation to give reasons. That obligation is a flexible one and, in circumstances where the Commission is constrained by the need to act quickly, the reasons need not be lengthy or complex. A failure to give reasons is an error of law but does not amount to jurisdictional error.

857. In making the February Orders, the Commissioner failed to consider and respond to two clearly articulated, substantial arguments about the Secretary’s delay in notifying the dispute to the Commission and the extent of the potential loss, damage and economic impact. As there was a real possibility that the Commission could have reached a different outcome, its failure amounted to jurisdictional error. The Amended Summons, insofar that it relates to the February Orders, must be dismissed.

858. The Commissioner did not err in failing to consider and respond to any of the arguments put by the Association when he made the March Orders. There was no proper basis advanced for concluding that those orders are vitiated by jurisdictional error.

859. The defendant breached the March Orders for seven days by organising the strike and inducing, advising, authorising, supporting, encouraging, directing, aiding or abetting members of the defendant to organise or take industrial action. The prosecutor has not satisfied the Court that the defendant breached the March Orders by failing to refrain from taking industrial action.

860. The defendant’s defiance of the March Orders was brazen and deliberate. The penalty should reflect the need to both specifically deter the defendant from future breaches of dispute orders and generally deter industrial organisations from such breaches. Having regard to the objective and subjective factors, an order should be made under s 139(3)(e) for a penalty of $25,000. For completeness, no order is made for costs: s 355E(3) of the Act.

861. For these reasons, the Court makes the following orders:

1. The Amended Summons, insofar that it pertains to pleaded contraventions A, B and J, is dismissed.

2. The Court declares that The New South Wales Nurses and Midwives’ Association has contravened the dispute orders made by the Industrial Relations Commission on 15 March 2022 in the respects alleged by the prosecutor in pleaded contraventions C to I of the Amended Summons.

3. The Court imposes a penalty of $25,000 on The New South Wales Nurses and Midwives’ Association.

4. Grant liberty to the parties to apply within seven days of the publication of this judgment.

Annexure

Amended Summons

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Amendments

28 September 2022 - Correction of minor errata