A. Manson v St. Vincent's Hospital Sydney(No1) 963 AR(NSW) 627

LEGISLATION CITED: Industrial Relations Act 1996 s139 s179

A. Manson v St. Vincent's Hospital Sydney(No1) 963 AR(NSW) 627 Australian Paper Manufacturers Limited Building Tradesmen Annual Leave Awd 1960 AR (NSW) 188 Australian Railways Union v Victorian Railways Commissioners (1930) 44 CLR 319, 37 ALR 37, 4 ALJR 338 CGEA Transport Ltd t/as Southtrans v Transport Workers' Union of Australia (2001) 110 IR 211 Dispute-Depart of Main Roads v PSA 1973 AR 48 Electricity Commission of NSW and PSA (unreported decision of Hill J, 30 March 1992, No IRC313 of 1991) CASES CITED: Persian Art Gallery Pty v Lorang & Anor [2005] NSWSC 913 Solution 6 Holdings & Ors v Industrial Commission of New South Wales & Ors (2004) 208 ALR 328 South East Asia Fire Bricks Sdn Bhd v Non-Metallic Mineral Products Manufacturing Employees Union [1981] AC 363 Suzanne Frugtniet v Administrative Decisions Tribunal (Appeal Panel) & Anor, Brian Frugtniet v Administrative Decisions Tribunal (Appeal Panel) & Anor [2005] NSWCA 257 Tempo Services Limited v Strezouski [2005] NSWIRComm 329

HEARING DATES: 05/23/2005; 05/24/2005; 05/25/2005; 10/17/2005; 10/26/2005

Applicant: Mr R.S. Warren of counsel Solicitors: Mr D.A. Lloyd Blake Dawson Waldron LEGAL REPRESENTATIVES:

Respondent: Mr A. Searle of counsel Solicitors: Ms M.S. Cassidy Maurice May & Co

• 46 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

BHP STEEL (AIS) PTY LIMITED (now known as BLUE SCOPE STEEL PTY LTD) v THE AUSTRALIAN WORKERS' UNION, NEW SOUTH WALES Application by BHP Steel (AIS) Pty Limited (now known as Blue Scope Steel Pty Ltd) for summons pursuant to s139 of the Industrial Relations Act 1996 as to alleged contravention of Dispute Orders made by Deputy President Grayson on 28 February 2003 in matter Nos 4413 of 2002 and 722 of 2003

JUDGMENT [2005] NSWIRComm 261 1 BHP Steel (AIS) Pty Limited ("BHP") applied for the issue of a Summons to Show Cause against the Australian Workers' Union, New South Wales ("AWU") pursuant to the provisions of s139 of the Industrial Relations Act 1996. In the application, BHP alleged Dispute Orders made on 28 February 2003 by Deputy President Grayson had been contravened by the AWU through the activities of the Port Kembla, South Coast and Southern Highlands Branch of the Australian Workers Union, NSW Branch on 28 February, 1, 2 and 3 March 2003 in Matter Nos IRC4413 of 2002 and IRC722 of 2003. The application requires the AWU to show cause why the Commission in Court Session should not take action in respect of the contravention.

2 BHP at the hearing of the application revealed it would seek, pursuant to s139(3) of the Industrial Relations Act 1996, the imposition of a penalty on the AWU and such other orders against the respondent as the Commission in Court Session considerer appropriate. Relevantly s139 states:

139 Contravention of dispute order (1) The Commission, on application, must deal expeditiously with an alleged contravention of a dispute order. The application may be made by the person who applied for the order or any other person who was authorised to apply for the order. (2) Before dealing with an alleged contravention of the order, the Commission is required to summon the person alleged to have contravened the order to show cause why the Commission should not take action for the contravention. (3) The Commission may, after hearing any person who answered the summons to show cause and considering any other relevant matter, do any one or more of the following: (a) dismiss the matter if it finds that the dispute order was not contravened or if it finds that the circumstances were such that the Commission should take no action on the contravention, (b) cancel the approval of an enterprise agreement, (c) suspend or modify for any period all or any of the entitlements under an industrial instrument, (d) cancel the registration of an industrial organisation or take any other action authorised by Division 2 of Part 3 of Chapter 5, (e) impose a penalty on an industrial organisation or an employer as provided by subsection (4), (f) make any other determination that the Commission considers would help in resolving the industrial dispute. (4) The maximum penalty that may be imposed on an industrial organisation or employer is: (a) except as provided by paragraph (b) - a penalty not exceeding in total $10,000 for the first day the contravention occurs and an additional $5,000 for each subsequent day on which the contravention continues, or (b) if a penalty has previously been imposed on the industrial organisation or employer for a contravention of an earlier dispute order - a penalty not exceeding in total $20,000 for the first day the contravention occurs and an additional $10,000 for each subsequent day on which the contravention continues. (5) Any such penalty may be recovered in the same way as a penalty imposed by the Commission for an offence against this Act. Note. The jurisdiction of the Commission under this section is exercisable only by the Commission in Court Session.

3 The relevant particulars relied upon in the s139 application were pleaded in the Summons as follows: 3. Members of the respondent employed by the applicant at the Rail Operations Department of the applicant's Port Kembla Steelworks in New South Wales have engaged in a strike since at or about 5.30 pm on 28 February 2003 and have not been available to perform work in accordance with their normal work requirements and their contracts of employment. 4. Members of the respondent employed by the applicant at the Rail Operations Department held a meeting at or about 11.30 pm on 28 February 2003 and resolved to continue the strike (which had commenced at or about 5.30 pm on 28 February 2003.) 5. Members of the respondent employed by the applicant at the Rail Operations Department had a meeting at or about 7.00am on 1 March 2003 and resolved to continue the strike until at least 3 March 2003. 6. Members of the respondent employed by the applicant at the Rail Operations Department held a meeting at or about 7.00 am on 3 March 2003. The meeting was attended by an official of the respondent, Andy Gillespie. Arising from the meeting, the strike is continuing. 7. The respondent and its officers and employees did not immediately cease and refrain from organising, encouraging or inciting any industrial action contrary to the dispute orders. 8. The respondent and its officers and employees did not take all necessary steps to ensure compliance with the dispute orders. 9. The respondent and its officers and employees have acted in contravention of the dispute orders. 4 Attached to the Summons was the affidavit of Oscar Gregory sworn 3 March 2003 verifying the allegations made in, and in support of, the application.

The evidence 5 Mr R.S. Warren, of counsel, appeared for BHP and Mr A. Searle, of counsel, appeared for AWU. BHP called Oscar Gregory, Paul Daniel Downing, Kenneth James Richard Jenkin, Keith Garnet Hillier, all officers of BHP and Kenneth John Brotherson, the solicitor acting for BHP. Mr Searle called Andrew Gillespie and Darryl Anderson, two officials of the AWU and Caner Karasu, a delegate/representative of the AWU. 6 After judgment was reserved in this matter, the parties were recalled for further argument as to the effect of the natural justice principles through the rules for procedural fairness on an order of the Commission in Court Session. The Commission in Court Session drew to the attention of the parties a judgment of the Full Bench (published after the matter was reserved) of Tempo Services Limited v Strezouski [2005] NSWIRComm 329 (22 September 2005).

Proceedings before the Industrial Relations Commission of NSW 7 It is necessary to address the industrial history, including proceedings before the Industrial Relations Commission of New South Wales, between the Rail Operations Department of BHP and the Port Kembla, South Coast and Southern Highlands Branch of the AWU. 8 On 11 July 2002, the BHP Steel Port Kembla Operations Enterprise Agreement 2002 was approved by Walton J, Vice-President. 9 On 31 July 2002, BHP notified a dispute with the AWU under s130 of the Industrial Relations Act 1996 regarding the operation of clause 9 of the certified Enterprise Agreement. The dispute was given matter No. IRC4413 of 2002. A Certificate of Attempted Conciliation was issued by Walton J Vice-President on 6 September 2002.

10 On 13 February 2003, BHP notified a further dispute with the AWU under s130 of the Industrial Relations Act 1996 regarding a stop work meeting of employees in the Rail Operations Department over the dismissal of an employee, Mr Kevin Harford. The dispute was given matter No. IRC722 of 2003. The matter was listed before Grayson DP for a compulsory conference. On the same date, matter No. IRC4413 of 2002 was listed by Grayson DP for directions.

11 On 14 February 2003, both matter Nos IRC4413 of 2002 and IRC722 of 2003, went before the Full Bench of the Industrial Relations Commission constituted by Wright J, President, Walton J, Vice-President, Grayson DP, and Connor C. One of the matters listed, matter No IRC 4413 of 2002, already had been issued with a Certificate of Attempted Conciliation. On that date, the employees in the Rail Operations Department were on strike which was related to another issue. Transcript reveals the Full Bench expressed its serious concern as to the industrial climate in the Rail Operations Department of BHP. The following occurred: President : Isn't something worthwhile going to come out of this if there is a clear understanding, if there be a dispute, be it an individual matter, a matter affecting a number of people, the way to resolve it is to notify the matter - and you can notify disputes by telephone - and point out it is an area linked with Full Bench proceedings and ask a member of the Commission, preferably one who has some background in the industry? I know that seems naïve but isn't it the way we should be going in this area?

Later the following occurred: Gillespie : I believe the current dispute settlement procedure is useless and I have always said it needs to be reviewed. The employer will not review it, simply refuse to do it because it allows them to do what they like. If we have a procedure where we could mix and match we would be happy ...

President : You may be right or not but surely, I just don't know enough about the current dispute settlement procedure, but if you are right and it should be reviewed, isn't the first step forward your trying to convince the company of the fact, if necessary, that that should happen?

To give you some assurance of the kind I have just raised with you, this area, it is an area of industrial sensitivity. Any matters of this kind will be dealt with in the first instance.

This is contrary to the disputes settlement procedure but it will be dealt with by an urgent notification to the Commission pointing out the connection with the rail operations are and requesting a member of the Commission to hear the matter and deal with the matter.

BHP relied upon the last paragraph of his Honour the President's comment to assert that it only had to notify generally of a dispute in the Rail Operations Department to meet the scheme of the Act.

Later: President : We note that private conference has been held with representatives of the parties by a delegate of the Full Bench. In light of those discussions, in which there was no agreement reached, we enquire of Mr Gillespie on behalf of the Australian Worker's Union and Mr Phillips of the Manufacturer's Workers' Union whether you would be prepared to recommend to this afternoon's meeting the following: The members of the unions in rail operations shall return to work immediately after the meeting and continue normal operations without industrial action until a decision is given by the Commission in Matter No 02/4413. Further, the Full Bench also wished to ascertain whether you will undertake on behalf of your unions to adhere to that recommendation for its duration if it is accepted by the members of your unions. 12 The recommendation of the Full Bench of the Commission was voted on by the members and they returned to work. Mr Gillespie, the Branch Secretary of the AWU, issued the following correspondence to the Commission: 14 February 2003

The Industrial Registrar, Industrial Relations Commission 50 Phillip Street Sydney NSW 2500

In proceedings before the Full Bench today, 14 February 2003,the Full Bench made a recommendation to the Unions and Rail Operations employees.

At a meeting of Rail Operations employees at 3.30pm today, 14 February 2003, the Commission's recommendation was accepted by Rail Operations members, with one caveat: That this condition does not apply to Rail Operations during general stoppages in the industry.

A resumption of work took place at 4.20pm 14 February 2003 in compliance with the above recommendation.

Yours faithfully A Gillespie Branch Secretary 13 Mr Gillespie therein confirmed in writing to the Industrial Registrar that the members of the AWU in the Rail Operations Department had accepted the Commission's recommendation that there be no industrial action until the Full Bench dealt with matter Nos IRC4413 of 2002 and IRC722 of 2003 with one caveat - that the members were free for any industry wide activity.

14 On 26 February 2003, at about 5.30am, there was a collision between a locomotive and a hot metal torpedo ladle in the Rail Operations Department. As a result of the incident, pursuant to BHP's alcohol and other drugs procedure, four employees were requested to undergo drug and alcohol tests. Mr (S) refused to undergo the drug test but had undertaken an alcohol test. 15 On 28 February 2003, at 3.20pm, Mr (S) was due to commence his next shift. When he reported for the afternoon shift, he was advised by BHP that he would need to return a negative drug test result before he could resume work. At the start of the shift on 28 February 2003, at about 4.00pm, Mr (S) again refused to take the test. He was told he could not resume work. He was therefore "stood down". 16 A stop work meeting was held by the afternoon shift at about 5:30pm and BHP was informed of the following: A resolution is proposed by the members, we are in dispute for 24 hours in support of Mr (S) and in relation to the Company's drug and alcohol policy. 17 After the afternoon shift decided to strike, contact was made with Mr Anderson the relevant AWU organiser. He arrived at the BHP site and hand wrote a draft Resolution which was put to the night shift. It read: Friday 28.2.03 Gate Meeting Rail ops Resolution

Stoppage till 29.2.03 at 3:20 pm in support of ...... (Mr S) & refusal of BHP's Drug Testing Policy and the Application of that Policy. 18 The Resolution indicated the stoppage would be for 24 hours which would, given the afternoon shift walked off the job, have taken the stoppage up until the afternoon shift on Saturday 1 March 2003. Mr Anderson, the AWU organiser, then left the site. 19 On the night shift, the employees gathered at the gate to have a meeting and vote.

20 Mr Karasu, the AWU delegate, was asked to put the Resolution to the gate meeting. The night shift voted on the Resolution and no employee began work. 21 BHP, once informed of the Resolution, determined to notify the Industrial Relations Commission of NSW of a dispute with the relevant union, the AWU, under s130 of the Industrial Relations Act 1996 and requested an urgent listing. The Commission convened a compulsory conference at 8:00pm in Sydney. It was a Friday evening. 22 The notification was made by fax on behalf of BHP by its solicitors in the following terms: IRC 03/722 Fax to Industrial Registrar 7:25pm NSW IRC 28.2.03 (02) 92580088 From Blake Dawson Waldron Adrian Morris/Ken Brotherson 02 92586025 Fax No 02 925 86999

On behalf of BHP Steel (Aus) Pty Ltd we request the making of dispute orders in terms of the attached draft order. Rail operations employees have been on strike since about 5 pm today. The strike is of indefinite duration. The strike is in breach of an undertaking given by the AWU to the Commission Full Bench on 17 February 2003 following proceedings on 14 February 2003 - in matters IRC 722/2003, 4413/2002 and other matters. 23 The notification refers to two previous disputes before the Commission in matter Nos IRC722 of 2003 and IRC4413 of 2002 (and other matters). The notification states BHP sought Dispute Orders. It states the strike is in breach of a prior undertaking given by the AWU to the Full Bench of the Commission. The notification as Mr Brotherson, solicitor, conceded referred to matter Nos IRC722 of 2003 and IRC4413 of 2002 which were disputes already before the Commission. 24 Mr Andrew Gillespie, Secretary of Port Kembla, South Coast and Southern Highlands Branch of the AWU, received a mobile telephone call, at approximately 6.45pm, from Mr Adrian Morris of Blake Dawson Waldron, solicitors acting for BHP. Mr Gillespie was advised "an application" had been listed before Grayson DP for 8.00pm that evening. It was a Friday afternoon. Mr Gillespie informed Mr Morris he was at an airport at the Gold Coast returning to Sydney after attending a National Conference of the AWU. Mr Gillespie tried to telephone Mr Darryl Anderson and Mr Andrew Gorman, AWU organisers in the Port Kembla, South Coast and Southern Highlands area, but failed to contact them. He left messages on their mobile telephones which were diverted to message banks. He arrived by aeroplane in Sydney, then drove to Wollongong, arriving home at about 10.30pm. 25 In the interim, Grayson DP called on the dispute notification. At approximately 8.00pm there was no appearance from the AWU. Grayson DP, after hearing of the industrial action and aware a Certificate of Attempted Conciliation had already issued in matter No IRC4413 of 2002, determined to issue a Certificate of Attempted Conciliation in matter No. IRC722 of 2003. Both those matters under which the dispute had been listed for compulsory conference were then moved to arbitration for the issuing of Dispute Orders. The Commission is empowered to issue orders only following an arbitration procedure.

26 Mr Morris did not give evidence before me but at the hearing of the Commission on 28 February 2003, he submitted to Grayson DP as to the notification of the hearing given to the AWU, as follows: Morris: I have made efforts. Perhaps if I could explain the efforts which have been made. A Miss Di Giorgio who is a HR (Human Resources) Officer at the Port Kembla Steelworks informs me that prior to 6.30 or 7 o'clock she had endeavoured to contact both Mr Darryl Anderson, an organiser of the AWU in Port Kembla, and Mr Gillespie, the secretary of the South Coast Branch of the AWU. Mr Di Giorgio informs me she was unable to speak to either although she left messages on the mobile phone of each. At about twenty minutes to eight I called another number Ms Di Giorgio told me was Mr Anderson's. Mr Anderson's voice answered on a recorded message that I was able to recognise as his voice, to the best of my knowledge. I left a message that the Commission had appointed a hearing for eight o'clock tonight; that the company would be seeking dispute orders to stop industrial action and prevent further industrial action in the rail operations department. I also asked him to call me both on my office number and mobile phone number. I received no response. I also called a number that Mr Anderson's message on his mobile phone gave me - 42293611. It was a number given for urgent calls. I called that number. There was no answer and the line rang out. At about twenty to eight I telephoned a number that I understand is Mr Gillespie's mobile number and Mr Gillespie answered. He asked me how I could help him on a Friday night. I explained I was trying to reach Mr Anderson or him for the purpose of attending a hearing tonight and to advise them of the hearing. Mr Gillespie said to me he was in Brisbane and was unable to help. He then asked me some questions about the proceedings, the reason for the industrial action. I gave him some answer on that. He said he would contact Mr Anderson. I asked if I could have a number for Mr Anderson where I could reach him. He said, "Leave it to me". I said, "Can you call him back?" Initially he said he would not and then he said he would. I have hear (sic) nothing more from Mr Gillespie since that time. 27 Mr Morris from his statement infers he mentioned dispute orders in a message left for Mr Anderson. 28 Ms Anna Di Giorgio, Human Resources Manager of BHP, gave evidence by way of affidavit sworn 5 August 2003. She was not required for cross examination and states the following: 8. At approximately 6.20 pm I telephoned Mr Anderson in relation to the Company's application for dispute orders. The phone went through to a message service which identified the phone as that of Mr Anderson. I left a message on his telephone in words to the following effect: Darryl, its Anna Di Giorgio. Wanted to advise you that we have been in contact with the Industrial Registrar over the Rail Ops dispute and they have listed the matter for hearing tonight in Sydney at 8pm. We will be seeking ex parte orders for an immediate return to work. Can you please give me a call back to discuss this on ... ..

9. I did not receive a return telephone call from Mr Anderson. 29 Ms Di Giorgio's evidence suggests "ex parte orders", however, she could not have known at that time, the union was not to appear before the Commission. 30 Grayson DP, after issuing the Certificate of Attempted Conciliation moved into an arbitration hearing. The AWU was not represented nor is there any evidence that it was informed of the arbitration hearing. There was, after conciliation, no attempt to contact the AWU to inform them the Commission was arbitrating the dispute and considering the application for Dispute Orders. Deputy President Grayson heard the application, then issued the following Dispute Orders in IRC722 of 2003: 1. From the time these orders take effect as specified in Order 2: (a) The Australian Workers' Union, New South Wales (the " Union ") and its respective officers and employees, and its members employed by BHP Steel (AIS) Pty Ltd at the Rail Operations Department of Port Kembla Steelworks in New South Wales must immediately cease and refrain from taking any form of industrial action, including any strike, ban, limitation or restriction on the performance of work;

(b) the Union and its officers and employees must immediately cease and refrain from organising, encouraging or inciting any industrial action (including any strike, ban, limitation or restriction on the performance of work) contrary to Order 1(a); and

(c) The Union its officers and employees must take all necessary steps to ensure that Order 1(a) is complied with, including, but not limited to advising its members of these orders by 11.20 ( handwritten ) /pm on 28 February 2003. 2. This order will take effect on and from 11.20 ( handwritten ) /pm on 28 February 2003 and shall remain in force for a period of three (3) months. or as further ordered by the Commission ( handwritten )

3. For the purposes of service in accordance with the Industrial Relations Commission Rules 1996, without limitation to other means of service, these orders may be served on each of the Union and its officers, employees and members:

(a) by facsimile to the registered office or Wollongong office of the Union; or (b) by handing a copy of these orders to an officer or employee of the Union. 31 Mr Keith Hillier, Rail Transport Manager of BHP, at 9.03pm was faxed a copy of the Dispute Orders issued by the Commission by BHP's solicitors. 32 Between 9.30pm-10.30pm, all night shift employees were telephoned by Mr Shayne Doyle, the Rail Operations Work Allocator and Mr Paul Daniel Downing, the Rail Transport Manager of BHP, to advise them of the Dispute Orders issued by the Commission and the requirement contained therein ordering them to return to work. Twenty of the employees were contacted directly and others had messages left for them. Each of the employees who were contacted directly were told in words to the following effect: The company has obtained Dispute Orders from the Commission and it's expected you return to work on night shift tonight. 33 Messrs Karasu, Bob Krstevski and Lee MacDonald, all AWU delegates, were each spoken to on the telephone some time between 9.30pm and 10.30pm on that Friday night. They were informed on the telephone as to the orders. Messages were also left for Mr Gillespie on his mobile telephone and Mr Gorman, an AWU official, on his mobile telephone as to the issuing of the Dispute Orders by Grayson DP. 34 From about 10.30 pm, as employees who were rostered onto the night shift arrived, copies of the Dispute Orders were also handed to them. Mr Krstevski attended the office of BHP and was handed a copy of the Dispute Orders. I accept Mr Krstevski in the afternoon and the evening was handed the orders. He may not have chosen to read them. Mr Karasu refused to accept a copy.

35 Mr Karasu, as the delegate and having been told by Mr Anderson that he was going away, attended the gate meeting both on the Friday night and the Saturday morning shift. It appears Mr Anderson may have attended the site on the Saturday morning, that was Mr Karasu's recollection but no such evidence was given by Mr Anderson. The Saturday morning shift voted to continue the stoppage. They extended the stoppage for a further 48 hours by which it could be inferred there would be a resumption of work on the morning shift on Monday 3 March 2003. 36 The AWU, through Mr Karasu, then informed BHP, the stoppage would continue until the Monday morning. There is no evidence as to how the resolution was varied to extend the strike. 37 Mr Karasu did not recall attending the afternoon shift gate meeting but I accept he had a conversation with Mr Downing, Rail Transport Manager, after the afternoon shift gate meeting so he was on the site. 38 Therefore, there was no work performed from early on the Friday afternoon shift through the Friday night shift and all the three shifts on the Saturday and Sunday. 39 On Monday 3 March 2003, the morning shift was due to start at 7.20am. Evidence revealed the rail operations employees rostered on shift sat out the shift in the crib room. On the afternoon shift, due to commence at about 3.20pm, the employees reported for work and again sat in the crib room. Work resumed sometime late in the afternoon. 40 Meanwhile, on Monday 3 March 2003, at about 8.10am, Mr Gillespie, the AWU representative and Mr Anderson with other union delegates, Messrs Krstevski, Karasu, Petinga and Packham, met with BHP. Mr Gillespie raised a number of issues as to the testing of Mr (S) and made a complaint to BHP that he was told of the notification while he was at the Gold Coast Airport. 41 Mr Gillespie then asserted at the meeting with BHP the stoppage of the members was because of a "safety issue" arising from the circumstances of the incident on Wednesday 26 February 2003, when the collision in the Rail Operations Department occurred. He asserted BHP had made modifications to the ladle and modification to the locomotive without informing its employees, which modifications, he asserted, affected the operation of the rail operations area and raised serious issues as to safety. BHP submitted this was the first time there was any allegation that the stoppage was connected to a safety issue. 42 Mr Karasu gave evidence that he had raised the safety issue after the collision on Wednesday 26 February 2003. He asserted he raised it with BHP on a number of occasions after the collision and before the stoppage. I accept Mr Karasu may well have raised a safety issue with BHP but not as a reason for the stoppage.

43 Also on 3 March 2003, the same Monday, the Full Bench of the Commission had listed matter Nos IRC722 of 2003 and IRC4413 of 2002 for hearing. Mr Morris, appearing for BHP, sought both matters be adjourned as the union membership were on a stoppage related to the application of the Drug and Alcohol Policy and asked for an urgent hearing for contravention the Dispute Orders of Grayson DP. Mr Gillespie, appeared for AWU, attended the afternoon hearing and raised the circumstances in which the Dispute Orders were issued. He submitted that the Commission in Court Session had to consider how unfair it had been to the union. 44 The Full Bench then heard arguments and issued the following statement in matter No. IRC4413 of 2002: ....... 2. It must be understood that when urgent disputes, including but not limited to those involving industrial action, occur the Commission is obliged to, and will act upon appropriate notification to so deal with the relevant industrial disputation urgently. Officers of registered organisations, whether of employees or employers, and employers, have a duty to ensure that appropriate representation for their organisation is available at short notice in proceedings before the Commission in such circumstances.

3. In any event, the statutory obligations on the Commission require proceedings to occur notwithstanding that parties are not prepared to, or not able to, make themselves available to appear.

4. The industrial action has occurred notwithstanding apparently pertinent undertakings by the AWU to the Full Bench and to his Honour, the Vice President, in various proceedings. The explanation given by Mr Gillespie on behalf of the AWU as to the apparent disregard of the undertakings does not appear satisfactory, even if the safety concerns raised today are given due weight. 45 To complete the industrial history on this site after the Full Bench statement on 3 March 2003, the union requested that matter No. IRC722 of 2003, in which the Dispute Orders were issued, be re-listed before Grayson DP. The AWU requested the following: 5 March 2003

The Industrial Registrar Industrial Relations Commission of NSW 50 Phillip Street Sydney 2000

The AWU requests that Matter No 722 of 2003, Re BHP - Rail Operations, which was last before DP Grayson on Friday 28 February 2003 be re-listed as a matter of urgency for the following reasons:

. No Union representative was available to attend the hearing on Friday 28 February at 8pm.

. The Company withheld vital information that the Commission should have been made aware of, which might have had a bearing on the Commission's decision as to whether or not orders were issued.

. The Unions believe a denial of justice has occurred and seeks the opportunity to put its case to the Commission.

This was part of the discussions before the Full Bench in Matter No 4413 of 2002 on Tuesday 4 March 2003, where the Unions indicated they would seek a re-listing of the matter.

A Gillespie Branch Secretary On Behalf of the Combined Steel Unions. 46 On 6 March 2003, this application for a re-consideration of the Dispute Orders was listed before Grayson DP. Mr Gillespie represented the AWU and made submissions. The matter was stood over to 20 March 2003, and Mr Gillespie agreed to provide to the Commission all the documentation the AWU wished to rely on for its application to have the Dispute Orders set aside. 47 By 20 March 2003, the hearing date for reconsideration of the Dispute Orders, which date had been agreed to by the union, no documentation had been forwarded to the Commission. On that date there was no appearance from the union when the matter was called. The matter was stood over generally. Grayson DP noted he would not be re-listing the application by the union for the revocation of Dispute Orders of 28 February 2003 which orders he noted remained in force until the union made "a satisfactory explanation for the failure to appear at the hearing and compliance with directions." 48 An examination of the various transcripts in other proceedings tendered before the Commission reveals the AWU had chosen not to appear before the Commission on two prior occasions. It is also relevant that BHP had made a prior application against the union for Dispute Orders given industrial action on the Rail Operations Department site. Grayson DP refused that application.

Submissions 49 Mr Warren, for BHP, submitted the Dispute Orders were validly issued and as the union did not proceed as they could under the Industrial Relations Act 1996 to have the orders set aside, they are valid orders. The Orders, he submitted, were issued on both the union, its officials and the relevant members including delegates both by hand and by delivery to the members' homes and through telephone communications. 50 BHP submitted the weight of the evidence should persuade the Commission that BHP complied with the Commission's orders and BHP met its obligation to notify the union organisers and the union members of the Dispute Orders of the Commission. The company's endeavour's included the following: · The orders were faxed to the union offices in Sydney and Wollongong on the Friday evening;

· The orders were handed to members at the site on the Friday night and Saturday;

· The order were also delivered to the homes of the relevant members and union offices;

· The union members were also informed by telephone before the beginning of the shifts; and

· Messages were sent to both Mr Gillespie and Mr Anderson informing them of the content of the Orders. 51 Mr Warren contended the Commission in Court Session would be persuaded the AWU had knowledge of the evidence of the Dispute Orders. He submitted there was sufficient evidence to establish, under s139 of the Industrial Relations Act 1996, a contravention of the Dispute Orders issued by Grayson DP by the AWU, given there was no return to work. He noted BHP sought only an order against the AWU. 52 BHP submitted that in the circumstances where there was a breach of the undertaking given by Mr Gillespie to the Commission, the undertaking should be considered in the historical context in which the orders were issued. It was conceded there was no application before the Commission in Court Session as to a breach of the undertaking given by Mr Gillespie, on behalf of the union, to the Full Bench of the Commission. 53 BHP challenged the evidence of the union officials and proposed the Commission in Court Session would be persuaded that Mr Anderson abandoned his responsibility with respect to the stoppage leaving all responsibility to the AWU representatives by purportedly leaving his mobile telephone turned off.

54 Further, BHP asserted given the AWU filed for a variation of the Dispute Orders and chose not to proceed with the application for variation, it has lost the opportunity to challenge the validity of the Dispute Orders.

55 BHP submitted the evidence establishes the union officials made no effort to organise a return to work even when it is conceded they had full knowledge of the Commission's orders. The evidence establishes, while the employees reported for work on the Monday, there was no resumption of duties until the afternoon. Such a delay was itself a contravention of the orders. Even on the best case put forward by the AWU, BHP submitted the AWU was in contravention of the orders from Sunday afternoon and throughout Monday.

56 BHP contended it is a matter of law the union representatives were acting on behalf of the union at the meeting on Saturday morning and before the afternoon shift in extending the strike at gate meetings. BHP contended the AWU abandoned its responsibility for the stoppage and, by the activity of Messrs Gillespie and Anderson, the strike action to continue to run and be extended.

57 Mr Searle, for the AWU, submitted generally the Dispute Orders issued were not valid. He submitted the Industrial Relations Commission of NSW is a statutory Tribunal and there must be compliance with the statutory provisions of the Act. The Commission has powers expressly conferred upon it for the issue of Dispute Orders under s137. There must have been compliance with the statutory requirements for the orders to have effect, the AWU submitted.

58 The AWU submitted a dispute is a dispute about a particular matter and under the scheme of the Act, under s130, there must be notification. Matters can be joined by consent or by an express order of the Commission. This did not occur in the way the Commission dealt with this matter. The two matters listed before Grayson DP on the relevant evening were two prior notifications of other disputes. One had a Certificate of Attempted Conciliation already issued. The matters had not been joined by Grayson DP. Had the Deputy President joined them before, he would then not have had to issue the further Certificate in matter No IRC722 of 2003 as he did. 59 The AWU submitted nothing in what the President said on 14 February 2003, when both matters were listed before the Full Bench should be taken as a determination that any new notification of any new dispute suddenly and inexorably becomes part of the whole. 60 The AWU asserted the conduct of the proceedings before Grayson DP reveals an assumption was made by BHP that following the understanding given by Mr Gillespie to the Full Bench of the Commission, any new matter is listed and merged into the one matter. 61 The AWU submitted given there was a new and distinct issue in dispute, under the scheme of the Act, there should have been a determination by the Commission it was satisfied there had been all reasonable attempts made to resolve the dispute and, only after the finding, could a Certificate of Attempted Conciliation issue. Further, the move to arbitration can come only after the Certificate of Attempted Conciliation is issued to the parties. Only then are the powers to arbitrate enlivened, the AWU submitted. 62 The AWU asserted further, in the circumstances of the issuing of the orders, there was a breach of natural justice in that as a party, the AWU was not notified of the move to arbitration proceedings before the Commission. The AWU asserted there was a fundamental breach of the scheme of the Act as no Certificate of Attempted Conciliation relating to the dispute before the Commission was issued to it, as a party. Findings of Fact 63 It is first necessary to consider some factual issues which are in dispute. 64 The AWU through Mr Gillespie asserted the relevant stoppage was because of a safety issue. I am satisfied from the evidence, including Mr Anderson's handwritten resolution and the contemporaneous notes kept by BHP officers and noting the conversations that were held between company officers, delegates and/or union members, that the stoppage of the members was solely called over the application of the Drug and Alcohol Policy of BHP and Mr (S). Further, that any meetings with BHP and Mr Anderson and/or delegates over that weekend only addressed concerns as to the application of the Drug and Alcohol Policy. 65 I, however, also accept that Mr Karusa may well have raised with BHP officers, particularly Mr Hillier, concerns as to safety of the modification made to the ladle between the incident on the Wednesday and the strike. I do not accept those concerns were the reason for the general stoppage.

66 A further issue raised by the AWU was a challenge to the integrity of BHP's endeavours to contact the AWU after the issue of the Dispute Orders. Mr Gillespie acknowledged he was contacted by Mr Morris, solicitor for BHP, and informed there was to be a Commission hearing following the notification of a dispute arising from a strike in the rail operations area of BHP. Mr Gillespie told Mr Morris he was at the Gold Coast Airport and would contact Mr Anderson. He then left a message on Mr Anderson's telephone. Mr Gillespie asserted he did not know of the Dispute Orders issued by the Commission until the Sunday morning. 67 Mr Gillespie said after arriving in Wollongong late on Friday night and all day Saturday he left his mobile in the car cradle and did not take any messages. On Saturday he played bowls, had a few drinks at the club and went home. He did not check his mobile telephone for messages until about 11am on the Sunday while mowing the lawn. 68 Mr Anderson also said he did not know of the Dispute Orders until Sunday morning. The members of the AWU were working a seven day continuous shift, three shifts a day and had been on strike from 3:20pm the prior Friday afternoon but the officials of the AWU made no endeavour over the weekend to monitor the stoppage. 69 This evidence as to their lack of knowledge of the Dispute Orders is challenged by BHP. Mr Gillespie asserted BHP should have rung his home telephone.

70 On 3 March 2003, Mr Gillespie told the Full Bench of the Commission he was unable to contact an official until late on the Friday evening. He said to the Commission: ... One official or another would have been here on Saturday morning. Because I eventually contacted an official in the morning; it was 10 to 12 that night. ...

71 Yet, Mr Gillespie in his affidavit evidence tendered in this matter deposed: 6. I advised Andrew (sic) Morris that I would not be able to do anything about the dispute at that time. I asked him to keep me informed of the situation.

12. I was of the opinion that the Applicant would not be able to proceed with the matter on 28 February 2003 in the absence of the Union. I anticipated there might be a hearing on Saturday, 1 March 2003, or a later date.

13. To the best of my recollection I received a telephone call from Darryl Anderson on Saturday, 1 March 2003, during the course of which he advised me that the members employed in the Rail Operations Department of the Applicant had decided to stop work over safety issues and specifically he referred to the size of certain metal ladles used in the operations of the Applicant. He did not make any reference to knowledge of orders made by Deputy President Grayson in this matter. 72 Therefore, in the affidavit filed and tendered before me, Mr Gillespie deposed that he spoke to Mr Anderson on Saturday.

73 Contrary to this sworn affidavit evidence that he contacted an organiser on Saturday, and contrary to what he told the Full Bench of the Commission on 3 March 2003, that he contacted the organiser on the Friday night, Mr Gillespie gave oral evidence before me that he made no contact with an organiser until the Sunday. He said he received a telephone call when he retrieved his mobile telephone messages and there was one from Mr Morris informing him of the Commission's decision to issue Dispute Orders. This information confirmed a call he received from Mr Anderson informing him of the Orders at about the same time. 74 It is the AWU's submission, the secretary of a branch of a reputable union having received information as to a stoppage on a site by his members in circumstances where he had given an undertaking for industrial peace at that site to the Full Bench of the Commission and having been given notice of a Commission hearing, turned off his mobile telephone from the time of the notification on the Friday evening to the Sunday morning and did not make further inquiries as to the industrial circumstances at the site nor what occurred at the Commission hearing. 75 This submission is made in the context of this hearing where Mr Gillespie gave oral evidence before me that he knew of the Commission's orders on the Sunday morning. In his sworn affidavit evidence Mr Gillespie said he contacted Mr Anderson on the Saturday morning and he knew then of the continuing strike and knew then of the Commission hearing. He denied in his oral evidence any contact with any official until the Sunday morning yet he told the Full Bench of the Commission on 3 March 2003, the day the strike was continuing that he contacted an official on the Friday evening. I found Mr Gillespie was evasive and on occasions untruthful in giving his evidence before me.

76 Mr Anderson as the AWU organiser responsible for the industrial activities in the Rail Operations Department of BHP drafted a resolution for a stoppage, gave it to the delegate to give to the members, turned his mobile telephone off and he would ask the Commission to believe he did not have any further contact until the Sunday, in circumstances where there was ongoing industrial action on a site for which he held responsibility. Mr Anderson asserted he made no effort to confirm the members had returned to work on the Saturday night shift or on the Sunday. He asserted he did not know of the Commission's Dispute Orders until he arrived home on Sunday at approximately 10:30am. 77 Mr Morris did not give evidence before me but on 28 February 2003 he submitted to the Commission that he and Ms Di Giorgio, Human Resources Manager of BHP, left a message for Mr Anderson informing him the company would be "seeking Dispute Orders". The delegates and members knew by the Saturday of the Dispute Orders. Mr Karasu, AWU, delegate gave evidence Mr Anderson attended the site on the Saturday morning. Mr Anderson did not give this evidence. I found Mr Anderson's evidence not persuasive where there is conflict between the parties given the number of versions of events placed before me by the AWU. I prefer the evidence of the company officers, whose evidence was supported by contemporaneous notes. Nonetheless I have found it difficult to determine if the union officials knew of the Dispute Orders before the Sunday morning. It is abundantly clear the AWU organisers knew of the Orders by Sunday morning.

78 As to Mr Gillespie's proposition the company was obliged to call him and Mr Anderson at home and not on their mobile telephones, over the weekend, I do not find this proposition in any way persuasive. This is especially so given the evidence before me that on 13 February 2003 before this stoppage the AWU had also chosen not to appear before the Commission and it has since this stoppage, once more, not attended a Commission hearing of which it clearly had notice.

79 A further issue was also argued. BHP asserted in the notification the stoppage was a breach of the undertaking given by Mr Gillespie to the Full Bench of the Commission. Mr Anderson did not recall whether he knew, at the time of the stoppage, of the undertaking. This is difficult to accept as the undertaking was given as to the operation of the Rail Operations Department. While the undertaking is relevant in the historical context nonetheless the Commission in Court Session is not considering a breach of the undertaking. 80 I am satisfied the evidence clearly establishes the union members were handed copies of the Dispute Orders on the Friday evening before night shift and were fully aware of the existence of the Dispute Orders from the time of the gate meeting on the evening on 28 February 2005. By not taking up duties the members from the Friday evening shift through to at least the beginning of the afternoon shift on the Monday were therefore acts in contravention of the Dispute Orders. The fact that some delegates deny taking the orders and/or did not read the orders does not negate the fact the members were told and had copies and full knowledge of the orders by the start of the Friday evening shift. 81 Mr Searle, properly in my view, conceded in this matter the activities of the union members were acts of the union. It is arguable that an organisation can act through its members, officials and employees and, therefore, any contravening act of a member can be a contravention by the AWU. However, the evidence leaves no doubt the members had knowledge of the order and contravened those Orders from the Friday evening. There was, on their own evidence, a breach of the orders by the AWU officials from the Sunday afternoon shift (which begins at 3:20 pm) given the AWU had an opportunity to attempt to organise a return to work after they knew of the Dispute Orders by 11am on the Sunday morning.

82 In a consideration of the merits of the case, the facts satisfy me it could be concluded the acts of the union through its members from the night shift on 28 February and through 1, 2 and 3 March 2003 were in breach of the 28 February 2003 Dispute Orders and the acts of the union, through its secretary and organiser, on 2 and 3 March 2002 were also acts which could be held to be in breach of the Dispute Orders. 83 However, such a view of the circumstances before me does not conclude the matter. Mr Searle, on behalf of the AWU, challenged the validity of the Dispute Orders. 84 Mr Searle mounted a separate challenge. He asserted the Dispute Orders were not valid because they were issued in breach of the scheme of the Act and further were issued in a circumstance contrary to the principle of natural justice through procedural fairness.

Legislation 85 Given the submissions of the AWU, it is relevant to this application to consider the history of the legislative provisions covering conciliation and arbitration of disputes. The Industrial Arbitration Act 1940 ("the 1940 Act") did not contain a specific arbitration power for the settlement of industrial disputation. Section 25(1) of the 1940 Act defining the conciliation of the disputes also contained a power to issue orders.

The 1940 Legislation Section 25 Compulsory conferences (1) A conciliation commissioner may summon any person to a compulsory conference - (a) where any question has arisen which, in his opinion, might lead to a lockout or strike, or where a lockout or strike, or where a lockout or strike has commenced;

(b) where there exists any shop, factory, craft, or industry dispute, or any matter which may be a contributory cause of such a dispute;

(c) where there is an actual, threatened, probable, or contemplated cessation of work or employment; . . . . 86 As to Disputes, the Commission was also empowered under s25A (as to notification to Registrar not relevant), s26 and s27: SEC. 26 Powers of conciliation commissioners A conciliation commissioner shall have and exercise the jurisdiction and powers of the commission in all matters referred to him by the commission, provided that he may remit any question arising in any such matter to the commission for its opinion and direction.

Upon the hearing of any matter so referred the members of the conciliation committee for the industry or calling or of the appropriate apprenticeship committee for any apprenticeships to which the matter relates or, as the case may require, the members of the contract regulation tribunal for the class of contracts to which the matter relates shall, if the commission or the conciliation commissioner so directs, sit with the conciliation commissioner and when so sitting they, together with the conciliation commissioner as chairman, shall constitute a committee or, as the case may be, a tribunal.

An appeal shall lie to the commission against any order or award made by a conciliation commissioner or a committee, and against any contract determination of a tribunal, upon any matter referred under this section and in such appeal the commission may vary any such order, award or contract determination in such manner as it thinks just. . . SEC. 27 Decisions of conciliation commissioners and committees final . . . 87 What followed was considered judicial consideration as to the proper circumstance in which orders should issue from the Commission. These judgments set the parameters for the issuing of Dispute Orders. In Australian Railways Union v Victorian Railways Commissioners (1930) 44 CLR 319; 37 ALR 37; 4 ALJR 338, Isaacs CJ (at 362) examined the history of what industrial arbitration involved before 1900. He commented that whether the arbitration is voluntary or compulsory and whether the arbitrator or arbitrators represent the viewpoints of the disputants, there are always three parties more or less directly interested, the immediate disputants and the public, the latter variously affected, but always in fact affected by the interruption of services. This remains so today. 88 In re Australian Paper Manufacturers Limited Building Tradesmen Annual Leave Award 1960 AR (NSW) 188, Beattie J considered the application of the conciliation provisions in the 1940 legislation. He held that a member of the Commission who conciliated an industrial dispute was not prevented by that legislation from subsequently determining the dispute by arbitration. However, generally as to the proceedings under that Act and the different elements between the conciliation and the arbitration process, Beattie J commented (at 203-204): … the first duty of a conciliation commissioner who has summoned a compulsory conference to deal with an industrial dispute is to endeavour to bring the interested parties to an agreement which will settle the dispute. How the conference is conducted is a matter for the commissioner. He is entitled to make, and, indeed, it is his duty to make, such suggestions to the parties as he thinks proper and likely to contribute to the settlement of the dispute. Whilst it may be that he is not required to abstain altogether from the expression of views as to the merits or demerits of claims involved in the dispute, it is doubtless prudent for him to keep in mind that, if his efforts at conciliation fail, he may have to arbitrate on the dispute. …

If, in the course of attempting to conciliate between parties, an authority vested with the joint powers of conciliation and arbitration, forms and gives expression to a settled view on the merits of an issue in dispute, the authority so doing places itself in a position of embarrassment and makes it impossible later to arbitrate in any real sense. The difficulty which arises from the fact that the combined functions of conciliation and arbitration are imposed on the tribunals under the Industrial Arbitration Act has been minimised in practice in two ways. First, the tribunal, whether it be a member of the Commission or a conciliation commissioner, usually endeavours to refrain during the conciliation stage of proceedings from forming, and certainly from expressing, any concluded view as to the merits of matters in dispute. Second, when the tribunal has seen that its efforts at conciliation have failed to produce agreement, it has as a general rule directed the party making a claim to lodge an application for an award or the variation of an award in accordance with the normal procedures laid down by the Act, and, when that has been done, the tribunal may proceed to arbitrate upon the disputed issues if necessary by taking evidence and hearing argument in the usual way. There are many advantages in such a course: the precise claims made are formulated, all parties directly or indirectly likely to be affected are served with notice of the matter, and a decision may be given on proper material as distinct from the without prejudice statements made in the cross-fire of proceedings by way of compulsory conference. However, these various considerations all touch on matters of the proper practice and procedure of the tribunals under the Industrial Arbitration Act, in so far as they have a discretion as to the practice and procedure they adopt. Nothing in the Industrial Arbitration Act or the regulations made thereunder requires that, as a pre-requisite to the making of an order or award pursuant to s. 25 (4) ( a ), a formal application therefore must have been made, or that evidence on oath or otherwise must have been received."....

And (at 204) Beattie J then noted that: "Arbitration" in its ordinary sense is the reference of a dispute between not less than two parties for determination, after hearing both sides in a judicial manner. 89 In re A. Manson v St Vincent's Hospital Sydney (No 1), 1963 AR (NSW) 627, Sheehy J considered the Commission's jurisdiction to make orders under the 1940 Act (as amended by the Industrial Arbitration Amendment Act 1959). In Manson, the Commission, after hearing the parties, issued an interim order but this was not accepted by the parties. The Commission then issued an order without hearing further from the parties. A number of grounds for the setting aside of the order were argued such as there was no written summons issued in accordance with a regulation in the requirement for the notification of a dispute. Sheehy J considered the submission as to lack of regularity in the notification of the dispute. The parties had been summoned by telephone. His Honour held the regulation had to have the purpose of carrying out the provisions of the Act and not thwarting it and he determined the failure to issue a formal summons (in the circumstances) did not prevent the proper exercise of the Commission's power to summons parties. His Honour then considered a submission as to the failure of the Commission to allow the parties to be heard before the issuing of the order.

90 As to that failure, Sheehy J held (at 633): I consider that here has been a denial of natural justice in this case or, to relate the situation more closely to the Industrial Arbitration Act , that the conciliation commissioner failed to adopt a procedure in accordance with equity and good conscience as required by s.83. There is no doubt that the commissioner held the view that his interim order was fair and equitable, and it may have been, but the point is that it was made contrary to the principles that a party to an arbitration should be entitled to be heard fully in his cause before a tribunal which has not expressed a preconceived view as to the result. In the circumstances of this case the failure to observe these principles justified the acceptance of . . . submissions in this connection. 91 The later words of Hill J are also apposite. In Re Electricity Commission of NSW and Public Service Association (unreported decision, 30 March 1992, Matter No IRC313 of 1991) Hill J commented generally: .... The matter is however one which will depend substantially upon the circumstances and nature of the matters in dispute. It need hardly be observed that where a strike or lock-out is in progress or threatened and the facts are not seriously in issue then questions of niceties or refinements may not loom large; although the line should be drawn between the conciliation and the arbitration stages.....

Mr Warren submitted the authorities referred to above "rounded out" the legislative process and the effect was when the Commission made an order arising from a dispute it was required to first embark upon a fair arbitral process. 92 New legislation provisions were proclaimed in 1991 and 1996 which Acts incorporated these stated principles requiring procedural fairness. In the Industrial Relations Act 1991 (which replaced the 1940 Act (as amended)), ss207 and 208 of the 1991 Act (amongst other things) required that a Certificate of Attempted Conciliation be given by the Commission before the arbitration. 93 It is now relevant to consider the separate conciliation and arbitration powers under the scheme of the 1996 Act: Chapter 3 Industrial disputes Part 1 Conciliation and Arbitration of industrial disputes 130 Notification of industrial dispute to Commission (1) Any of the following may notify the Commission of an industrial dispute for the purpose of resolving the dispute: (a) an industrial organisation of employees or employers (b) an employer who is or is likely to be affected by the dispute, (c) a person who is or is likely to be the subject of a secondary boycott in connection with the dispute, (d) a State peak council. (2) The Commission may act on its own initiative to resolve an industrial dispute. 131 Mandatory dispute resolution procedures to be followed first The Commission may refuse to deal with an industrial dispute until it is satisfied that any relevant dispute resolution procedures in an industrial instrument have been followed as far as is reasonably practicable in the circumstances. Note. Sections 14 and 39 require the inclusion of dispute resolution procedures in awards and enterprise agreements. 132 Compulsory conference (1) For the purpose of resolving an industrial dispute, the Commission may convene a compulsory conference and require the attendance of any person whose presence the Commission considers would help in the resolution of the dispute. (2) A compulsory conference is to be presided over by a member of the Commission. (3) The Commission may confer with any person on any matter that may affect the resolution of an industrial dispute, without requiring the person to attend a compulsory conference. Note. Section 165 provides that the Industrial Registrar may issue a summons for the purpose of any compulsory conference. Section 380 enables the Commission in the course of a compulsory conference to make an order for a small claim under Part 2 of Chapter 7 (Recovery of remuneration and other amounts) arising out of the industrial dispute. 133 Conciliation before Arbitration The Commission must first attempt to resolve an industrial dispute by Conciliation. 134 Conciliation of dispute (1) Commission to assist parties. The Commission, when attempting the Conciliation of an industrial dispute, is to do everything that seems to be proper to assist the parties to agree on terms for the resolution of the dispute. (2) Recommendations or directions During Conciliation proceedings, the Commission may make a recommendation or give a direction to the parties to the industrial dispute. Failure to comply with any such recommendation or direction may not be penalised but may be taken into account by the Commission in exercising its functions under this Act. (3) Conferences The action that may be taken by the Commission to assist the parties includes making arrangements or giving directions for the convening and conduct of conferences of the parties or their representatives (whether or not compulsory conferences and whether or not presided over by a member of the Commission). (4) Good faith bargaining The Commission, when dealing with an industrial dispute, must consider whether the parties have bargained in good faith and, in particular, whether the parties have: (a) attended meetings they have agreed to attend, and (b) complied with agreed or reasonable negotiating procedures, and (c) disclosed relevant information for the purposes of negotiation. The Commission may make recommendations or give directions to the parties to bargain in good faith. 135 Arbitration after attempted Conciliation (1) The Commission is to deal with an industrial dispute by Arbitration only if it is not resolved by Conciliation. (2) Arbitration by the Commission is not to proceed until the Commission has issued a certificate that reasonable attempts have been made to resolve the industrial dispute by Conciliation ( certificate of attempted Conciliation ). (3) A certificate of attempted Conciliation is to be provided to the President of the Commission unless the Commission is constituted by the President. (4) When determining whether to issue a certificate of attempted Conciliation, the Commission must consider the effect that any industrial action in connection with the industrial dispute is having on the parties and the public generally. In particular, the Commission must give urgent consideration to the effect of industrial action in connection with a demarcation dispute. (5) A certificate of attempted Conciliation may be issued on the Commission's own initiative or on application by any person authorised to notify the Commission of the industrial dispute. (6) The Commission must, without delay, issue a certificate of attempted Conciliation on the application of any such person if the person satisfies the Commission that there is no reasonable likelihood that the dispute will be resolved by Conciliation. (7) The Commission must, without delay, issue a certificate of attempted Conciliation if the Commission decides that industrial action or duress necessitates the exercise of its arbitral powers. (8) The parties to the proceedings are to be provided with a copy of any certificate of attempted Conciliation. (9) Nothing in this Act prevents the exercise of Conciliation powers merely because Arbitration powers have been exercised under this Act. 136 Arbitration of dispute (1) The Commission may, in Arbitration proceedings, do any one or more of the following: (a) make a recommendation or give a direction to the parties to the industrial dispute, (b) make or vary an award under Part 1 of Chapter 2, (c) make a dispute order under Part 2, (d) make any other kind of order it is authorised to make (including an order made on an interim basis). (2) Any such action may be taken by the Commission on its own initiative or on application by any person authorised to notify the Commission of the industrial dispute. Note. Examples of other kinds of orders the Commission may make are orders for secret ballots (section 172), a demarcation order under Part 6 of Chapter 5 and stand-down orders (section 126). 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. Note. See also claim for remedy under Part 6 of Chapter 2 (Unfair dismissals).

94 Under the scheme of the 1996 Act, the powers of the Commission in conducting conciliation and arbitration are separately defined. It is incumbent upon the Commission, before dealing with a dispute, to ensure reasonable dispute resolution procedures as outlined in the relevant industrial agreement have, as far as is practicable, been followed (s131). The Commission may convene a compulsory conference (s132), by notification or on its own initiative (s130(1)&(2)). Conciliation must be held before arbitration (s133), the Commission is to assist the parties to agree or may give recommendations or directions to the parties (s134(2)). Arbitration is not to proceed until the Commission determines all reasonable attempts have been made to resolve the dispute (s135(2)). The Commission must then without delay, issue the Certificate of Attempted Conciliation in the circumstance of an industrial dispute when it determines that the industrial action necessitates the exercise of its arbitral powers (s135(7)). The President is to be provided with copies of the certificate (s135(3)) and so must the parties (s135(9)). 95 It is the 1996 legislation which relevantly guides this consideration. Under the 1996 Act, parties and the President have to be provided with "copies" of the Certificate of Attempted Conciliation after it has been issued. These provisions have the effect on ensuring parties are notified the Commission is moving from conciliation to arbitration. Such procedures ensure both parties' right to be heard in an arbitration. The rules of natural justice reflected in procedurally fair practices require that the parties to proceedings have a right to be heard. 96 The application at a hearing to the principle of nature justice through the conduct of fair proceedings was considered in Suzanne Frugtniet v Administrative Decisions Tribunal (Appeal Panel) & Anor; Brian Frugtniet v Administrative Decisions Tribunal (Appeal Panel) & Anor [2005] NSWCA 257. Handley JA summarised the law thus: 18 ... In Commissioner of Police v Tanos (1958) 98 CLR 383, 395 Dixon CJ and Webb J said: "… it is a deep-rooted principle of the law that before any one can be punished or prejudiced in his person or property by any judicial or quasi-judicial proceeding he must be afforded an adequate opportunity of being heard. In Cooper v Wandsworth Board of Works (1863) 14 CBNS 180, 194 Byles J said that a long course of authority established 'that, although there are no positive words in a statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature'." 19 In Kioa v West (1985) 159 CLR 550, 584 Mason J said: "The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention." 20 In the same case at 613 Brennan J referred with approval to the judgment of Tucker LJ in Russell v Duke of Norfolk [1949] 1 All ER 109, 188 where the latter said: "… whatever standard is adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his case." 97 Harrison AJ in Persian Art Gallery Pty v Lorang & Anor [2005] NSWSC 913 stated under the heading of natural justice and procedural fairness: 11 In Kioa v West (1985) 159 CLR 550 the High Court held that the duty to accord natural justice is a duty to act fairly. In the normal course, a party to judicial proceedings (as are those in a tribunal) could expect to be apprised of the nature of the case sought to be made against it, and of the date and time fixed for hearing so as to give it a reasonable opportunity to meet that case and to advance its own. 12 In relation to procedural fairness, Mason J stated in Kioa at 584-585 that the law had now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention. Procedural fairness is a notion of a flexible obligation to adopt fair procedures, which are appropriate and adapted to the circumstances of the particular case. Whether there is a denial of procedural fairness depends on the circumstances in each case. 13 In the CTTT the Tribunal Member must act in accordance with the provisions. 98 The effect of s163 of the 1996 Act was also relied upon which, addresses the application of the rules of evidence and legal formality. Both parties claimed the protection of this section: 163 Rules of evidence and legal formality (1) The Commission: (a) is not bound to act in a formal manner, and (b) is not bound by the rules of evidence and may inform itself on any matter in any way that it considers to be just, and (c) is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. (2) However, the rules of evidence and other formal procedures of a superior court of record apply to the Commission in Court Session. 99 A Full Bench of the Commission recently referred to the obligation to observe procedural fairness in relation to proceedings before the Commission and addressed also the effect of the above recital of s163 of the 1996 Act in CGEA Transport Ltd t/as Southtrans v Transport Workers' Union of Australia (2001) 110 IR 211, as follows: 33. The Commission, when not sitting in Court Session, is not bound to act in a formal manner, is not bound by the rules of evidence and may inform itself in any way that it considers to be just: s163(1)(a) and (b) of the Act. However, the Commission is required to act according to equity, good conscience and the substantial merits of the case: s163(1)(c) of the Act. This requirement clearly encompasses an obligation to observe procedural fairness in relation to proceedings before the Commission: see General Pants (Trading) Co Pty Ltd v Shonny (unreported, Fisher P, Schmidt J and Murphy CC, Matter No IRC 3123 of 1993, 8 September 1994, at p12). 34. Numerous decisions have affirmed the principle that arbitral tribunals, although not bound by the rules of evidence or obliged to adopt the strict procedures characteristic of the courtroom, are nonetheless required to adhere to the dictates of procedural fairness. In Re Australian Railways Union; Ex parte Public Transport Corporation (1993) 117 ALR 17, the High Court observed that broad powers were conferred on the Federal Commission to make an award and was not restricted to the specific relief claimed by the parties. However, the Court stated (at 23-24): But the wide scope given to the Commission in determining the relief which it will give does not absolve it from an obligation to observe the rules of procedural fairness in exercising its arbitral function. In Re Australian Bank Employees Union; Ex p Citicorp Australia Ltd ((1989) 167 CLR 513 at p519 this Court pointed out that it was well settled that the Conciliation and Arbitration Commission was bound to act judicially and that the Commission, as its successor, is bound to do likewise. The Court went on to point out that one aspect of the duty to act judicially is the duty to hear a party and to allow him or her a reasonable opportunity to present his or her case and, coupled with that duty, is the duty to consider the case put. And in Re Media, Entertainment and Arts Alliance; Ex p Hoyts Corporation Pty Ltd ((1993) 67 ALJR 389, at p390; 112 ALR 193 at p194) the Court said that the Commission has a duty in considering an application to afford a party a reasonable opportunity to allow his or her case to be put. 100 The "dictates of procedural fairness" therefore binds the Commission. Mr Warren further submitted under s136(2), Grayson DP was empowered to arbitrate a dispute without notifying the party concerned. He submitted the Commission was moving from conciliation to arbitration of its own accord under s136(2)). 101 Mr Warren asserted the legislature clearly came to the view there may be circumstances that will, in the public interest, require a member of the Commission to take action speedily, if the Commission came to a decision that any delay was unacceptable. 102 As I later determine this case will not be decided on this proposition. The effect of s136(2) has not been given judicial consideration. Even if the effect of s136(2), in the scheme of the Act, is to empower the Commission to move, without notice, from conciliation to arbitration it would only, in my view, empower the Commission to issue interim orders (s136(1)(d), which could provide relief in the public interest while ensuring the missing party be notified to attend upon the Commission to allow a fair opportunity for all parties to be heard before final orders. Such a procedure was not followed by the Deputy President. The principle of natural justice through the dictates of procedural fairness were not applied. 103 Nonetheless, in deciding this matter I do not rely on the possible effect of s136(2) and the assertion it empowers the Commission to move from conciliation to arbitration without notice to one of the parties when the public interest is affected.

Consideration 104 If the ground of defence by the union was solely that no formal Certificate of Attempted Conciliation in matter No IRC722 of 2003 was given to the AWU and, therefore, the scheme of the Act was breached, I would dismiss such a submission as one simply of form over manner especially since transcript reveals Deputy President Grayson ordered the Certificate of Attempted Conciliation be issued. In this determination, I adopt the reasoning of Sheehy J in Mason as to questions of form and procedure. 105 Further, if the AWU relied only upon how the notification was listed before the Commission on the evening of a Friday night, I would also find that submission, given the circumstances of a stoppage, is a submission of form over manner. If either submission was accepted it would "thwart" the power of the Commission to conciliate and arbitrate where there is industrial action. While generally a party would expect a new dispute be listed with a separate Commission notification number, in this circumstance, where the Registrar, the Deputy President and BHP accepted the notification for short listing and given the circumstances where there had been similar industrial action and where the relevant industrial action was taken late on a Friday afternoon, taking into account what fell from the Full Bench on 14 February 2003, regarding this industrial site and noting that the Deputy President was on that Full Bench and both BHP and the AWU were parties before the Full Bench hearing, I reject the proposition that given the notification was listed under other matter numbers this could be a ground to challenge the validity of the Dispute Orders.

106 The notification was issued and I accept it was not given a listing in the usual manner. However, in accordance with the reasoning of Sheehy J in Mason and noting the provisions of the Industrial Relations Act 1996 requiring the Commission to act without delay, I find the compulsory conference properly proceeded before Grayson DP. 107 The Deputy President in accordance with his statutory obligation convened a compulsory conference. The AWU was notified through at least Mr Gillespie of the compulsory conference. The AWU chose not to attend and made no contact with the Commission to explain any difficulty in attending. There was in such a circumstance a proper exercise of the conciliation powers. 108 Transcript reveals the Deputy President considered the effect the industrial action was having on BHP and it also revealed he discussed its effect on the public (if there was no movement of the production of molten steel). There was a public interest in the notification of the dispute and after conciliation failed the arbitration of the dispute without delay was necessary in accordance with the scheme of the Industrial Relations Act 1996. 109 However, I cannot be persuaded the evidence of a submission of Mr Morris from the bar table in another hearing that a telephone call was made, before conciliation, saying we are "seeking Dispute Orders" is a notification which would properly inform as to the movement of a Commission matter from conciliation to arbitration. 110 Accordingly, the Deputy President having persuaded himself the AWU had been notified of the listing and without the AWU present was obliged under the Industrial Relations Act 1996, once he determined that was no reasonable chance that the dispute could be resolved by conciliation, to issue the Certificate of Attempted Conciliation. It was mandatory upon the Deputy President to without delay issue the certificate once he determined the industrial action necessitated the use of the Commission's arbitral powers. Again there was rigorous compliance with the scheme of the Industrial Relations Act 1996. 111 However, once the learned Deputy President so determined to move to arbitration, it was also necessary under the scheme of the 1996 Act to inform the union the proceedings were moving from conciliation to arbitration (see also Sheldon J in re Dispute-Department of Main Roads v Public Service Association 1973 AR 48 (at 49) and Beattie J in re Australian Paper Manufacturers). It was necessary to give the AWU the opportunity to make submissions and call evidence. It is relevant to note that both parties under the scheme of the 1996 Act have a right to object to the member of the Commission, who has conducted the conciliation proceeding, from conducting the arbitration (s173 (1)). 112 The circumstances reveal a dilemma. Transcript reveals the AWU had, on a prior occasion, not attended upon the Commission and have, since this dispute, further failed to so do. The responsible officers of the AWU by turning off their mobile telephones from Friday night through to Sunday morning in the full knowledge there was before the Commission a notification of a dispute; and the continuance of the stoppage until the Monday afternoon in the full knowledge, by the Sunday morning that the Dispute Orders had issued from the Commission - could well have been attempting to thwart the powers of the Commission with such a tactic. 113 The notification by BHP directly requested the Commission issue "Dispute Orders". However, the evidence does not go so far as to ensure the AWU Secretary was told over the telephone that it was BHP's intention to make an application to proceed to arbitration for Dispute Orders. The evidence of Mr Morris is only related to a message sent to Mr Anderson who asserted he did not receive it on the Friday. Mr Anderson suggested he did not listen to his telephone messages until, coincidentally, the Sunday morning. Coincidental because at the same time Mr Gillespie attended to his mobile messages 114 However, whatever the notification, it was made in an industrial climate where there had been many disputes between the parties and industrial action taken by the union. BHP had, on a previous occasion, sought dispute orders where it notified a dispute. 115 The industrial climate on the site was of such concern the parties had been before the Full Bench of the Commission. The President had expressed his concern as to the industrial activity on site. The Deputy President had re-iterated to the parties the services of the Commission were available to assist resolution where there was disputation. The AWU had given an undertaking to the Commission through the Full Bench on which sat both the President of the Commission and the Deputy President of the Commission for industrial peace to allow the Commission to consider the challenge the AWU mounted as to dispute procedures outlined in the recently agreed industrial agreement. There was a breach of that undertaking. The AWU, therefore, was in serious jeopardy to attract dispute orders on the night of 28 February 2003.

116 The union did not proceed to have the dispute orders set aside, a procedure available under s138(2)(c). The union, on the date set down for the hearing of its application to set aside the dispute orders, did not attend. This is but another reflection of the union's expressed attitude to the Commission. 117 In the circumstance, notwithstanding the unacceptable industrial behaviour of the AWU through its activities of its Port Kembla, South Coast and Southern Highland Branch officials and members and their contemptuous attitude to this Commission expressed generally through a lack of respect for the Commission's procedures and orders as Hill J in Re Electricity Commission of NSW so clearly said "the line should be drawn between the conciliation and the arbitration stages" and that is what the scheme of the 1996 Act effectively does. The union was not given the opportunity to be heard at the arbitration of the dispute. It was not notified of the arbitration hearing. The purpose in the scheme of the Act, with the insertion of s135(8), is to ensure an opportunity was given to the relevant parties to a dispute to be heard before arbitration orders are issued.

118 I do not accept that because a formal certificate may not have been formally served on the parties following the Deputy President's orders in matter No IRC722 of 2003, there is ground for a dismissal of the application. The Commission, however, must acknowledge the statutory obligations which, when complied with, provide an assurance the parties to proceedings are provided with an opportunity to be heard at the arbitral stage.

119 While the scheme of the 1996 Act requires the Commission to not delay in moving from conciliation to arbitration when there is industrial action, it also requires the issuing of a Certificate of Attempted Conciliation (s135(7)) and the parties to be provided with a copy of that Certificate of Attempted Conciliation (s135(8)). The scheme of the 1996 Act thereby ensures notification to the parties before the arbitral procedure. This is a statutory requirement inserted in the 1996 Act in order to ensure the parties to the dispute are given an opportunity to be heard. The principle of natural justice through procedural fairness requires parties be given that opportunity.

120 It is not necessary for me to determine in circumstances where a party to an industrial dispute has chosen not to attend a compulsory conference and in circumstances where that party was fully aware of the Commission's hearing of the conciliation when such a party is to be given a copy of the Certificate of Attempted Conciliation and how that is to be achieved.

121 In this matter, the evidence does not satisfy that there was compliance with the scheme of the 1996 Act which requires parties be notified the Commission moves to arbitration. The Commission has power to move quickly to arbitrate an industrial dispute. Any endeavour to notify may well achieve compliance with the obligation to notify under the 1996 Act. There was no evidence any such endeavour was made. The commonsense application of the scheme of the Act may well have given the Deputy President powers to make interim orders in the public interest pending an opportunity being given to the union to attend an arbitration.

122 The provisions of s137 of the 1996 Act set up a particular regime which places obligations upon parties in industrial disputes to comply with orders of the Commission. The circumstances before me reveal the industrial behaviour on the part of the union could be held to be an attempt to thwart the powers of this Commission. There cannot be any condonation of such industrial activity or attitude. Nonetheless, the principle of natural justice and ensuring procedural fairness and the non-compliance with the regime outlined in the 1996 Act as to notification to the parties of the move by the Commission from conciliation to arbitration to facilitate a party's right to be heard would generally require the Commission in Court Session to reject this application.

123 However, the effect of s179 of the 1996 Act must now be given consideration. Section 179 states: 179 Finality of decisions (1) Subject to the exercise of a right of appeal to a Full Bench of the Commission conferred by this or any other Act or law, a decision or purported decision of the Commission (however constituted): (a) is final, and (b) may not be appealed against, reviewed, quashed or called in question by any court or tribunal (whether on an issue of fact, law, jurisdiction or otherwise). (2) A judgment or order that, but for this section, might be given or made in order to grant a relief or remedy (whether by order in the nature of prohibition, certiorari or mandamus, by injunction or declaration or otherwise) may not be given or made in relation to a decision or purported decision of the Commission, however constituted. (3) To avoid doubt, this section extends to any decision or purported decision of the Commission, including an award or order of the Commission.

124 In Tempo Services, the Full Bench in considering an appeal against the granting of declaratory relief by a member of the Commission in Court Session from a term of an award held: 53 In 1927 the High Court decided Morgan v Rylands Brothers (Australia) Limited (1927) 39 CLR 517. In that case the Full High Court held, on appeal from the Full Court of the Supreme Court of New South Wales, that the Supreme Court had no jurisdiction to entertain a suit for a declaration that an award was a nullity, even if there had been some procedural irregularity on the face of the proceedings before the Conciliation Committee which had purported to make the award. Although there were three separate judgments delivered it is sufficient to note that all of the judgments relied upon the terms and effect of s 8(14) of the 1926 Act earlier referred to, which provided that "the validity of any proceedings or decision of a committee or a chairman of a committee shall not be challenged except as provided by this Act".

54 It is also relevant that s 9(5) of the same statute provided that an appeal from an order or award of a conciliation committee lay to the Industrial Commission constituted under the statute. Our researches indicate that the judgment of the High Court in Morgan v Ryland Brothers was consistently applied by the Industrial Commission over the next 30 years although the statutory provisions referred to were different and the particular cases usually arose in consideration of appeals from the Chief Industrial Magistrate. The cases include Railway Commissioners for New South Wales v Langshaw [1928] AR (NSW) 557; Grossy v Lynch [1934] AR (NSW) 155; Reo Motors Pty Limited v Bagnall [1947] AR (NSW) 753; and Long v Fishers Food Pty Limited [1955] AR (NSW) 501. They indicate a continuous and consistent line of authority that awards of the former Industrial Commission and of the Conciliation Committees established under the relevant industrial legislation should not be permitted to be the subject of collateral attack either in the Supreme Court or in other proceedings, for example in proceedings to enforce the award. The absence of cases after 1955 would seem to indicate that, by then, the principle was well settled.

55 The only material change that has occurred by the enactment of s 179 is that the stringency of the provision which denies the ability of a litigant to collaterally attack an award of the Commission is even more stringent than it was. There are sound policy reasons for following the line of authority stretching back now over three quarters of a century. It is regrettable that these authorities were not drawn to the attention of the trial judge but the importance of those authorities and the policy evidenced by them makes plain the appropriateness of his Honour's decision being reconsidered and overturned in the light of the authorities.

56 There is a further and additional ground for the orders made by his Honour to be set aside. There is clear power in the Commission, in its arbitral jurisdiction to deal with the issue raised by the respondent, and for the Commission to do so on its own motion: see s 11(1)(a) and s 17(3)(c) of the Industrial Relations Act. The existence of that power provided a strong discretionary basis not to make the orders which were made at first instance.

57 The power gives the Commission a broad discretion to review the provisions of an award or, if necessary, the previous decision which led to their making, unaffected by the operation of s 179: Re Storeworkers - IGA Distribution Pty Limited New South Wales Distribution Centres Award 2002 (2002) 124 IR 1 at 9. There are sound and compelling policy reasons for the validity of the terms of awards to be dealt with by the Commission since it will do so after hearing from the parties to the award and, where necessary, adjust appropriately the interests of the employees or employers affected by it. Further, the power of the Commission to do so of its own motion has the practical effect of removing, in appropriate cases, any issues as to the standing of individual employees or employers to raise issues of validity.

58 Before making orders in this appeal we should refer to one other consideration. Although not dealt with in the submissions of the parties it is clear that the provision which was the subject of the proceedings before Marks J was inserted in the relevant award in 1994 prior to s 22 of the Industrial Relations Act 1996 coming into force. 125 Section 179 therefore is a formal process directed in a formal and legal sense to protect against the setting aside or a declaration of invalidity at law of a previous decision of the Commission. 126 Mr Searle submitted the statutory protection applied to an order of the Commission under s179 does not apply to this matter and the reasoning of the Full Bench in Tempo Services is not applicable to this circumstance. He submitted s179 is directed to the intervention of other courts into the proceedings of the Industrial Relations Commission of NSW and s179 is essentially designed to protect decisions or orders of the Commission from attack by outside courts. 127 He submitted secondly although the protection of s179 was provided by the Full Bench in Tempo Services to a decision of the Commission, s179 only deals with formal processes that have as their legal consequence the setting aside or invalidation of an earlier decision. Section 179, he submitted, does not deem decisions to be valid and that is the issue now before the Commission. The question before the Commission, he submitted, was whether the orders of the learned Deputy President were validly made. He submitted the invalidity of an order is the first consideration. If an order is invalid there is no order in which s179 can be applied. In support of this proposition he relied upon s163(1)(c) which states: 163 Rules of evidence and legal formality (1) The Commission: ..... (c) is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. 128 Mr Searle further submitted a reading of s179 with s163(1)(c) does not remove the burden on the Commission in Court Session to be satisfied that there were valid dispute orders. He submitted the orders of Grayson DP were invalid in the circumstances. Reliance was placed by the union on Houssein & Anor v Under Secretary, Department of Industrial Relations and Technology New South Wales & Anor (1982) 148 CLR 88 where the words of the judicial committee of the Privy Council in South East Asia Fire Bricks Sdn Bhd v Non-Metallic Mineral Products Manufacturing Employees Union [1981] AC 363 were considered appropriate, by Lord Fraser of Tullybelton who said, on behalf of their Lordships in South East Asia Fire Bricks (at 370) in considering a similar question: ... the final words 'quashed or called into question in any Court of law' seem to their Lordships to be clearly directed to certiorari. 'Quashed' is the word ordinarily used to describe the result of an order of certiorari and it is not commonly used in connection with other forms of procedure (except in a quite different sense of quashing a sentence after conviction on a criminal charge). If 'quashed' were for some reason not enough, the expression 'called in question, in any Court of law' is in their Lordships' opinion amply wide enough to include the certiorari procedure. Accordingly, they are of opinion that para (a) does oust certiorari, at least to some extent. 129 In the result, their Lordships concluded the words in question ousted the jurisdiction of the High Court to grant certiorari in respect of errors of law not going to the jurisdiction of the Industrial Court. Mr Searle submitted the terms of s179 are clearly directed to the formal procedures of courts to set aside in some way a decision of the Commission in Court Session. That he submitted is not the question before the Commission in Court Session. Rather, the issue is the validity of the orders issued by the learned Deputy President. If the order is invalid, s179 does not apply he asserted. 130 I am persuaded that s179 does protect the orders of the learned Deputy President. This protection as was said by the Full Bench in Tempo Services ensures orders of the Commission are protected from "collateral attack." Section 179 protects as final (s179(1)(a)) a decision or a purported decision of the Commission (however constituted) (s179(1)). Such a decision or even a purported decision may not be appealed against, reviewed, quashed or called into question by any court (whether on an issue of fact, law, jurisdiction or otherwise) (s179(1)(b)). Therefore relief, whether it be one of the usual formal relief orders or otherwise, is not available. This privative clause extends to any order of the Commission (s179(3)) and no form of relief to the order is available no matter whether the challenge mounted is on fact, law, jurisdiction or otherwise. If a decision is out of jurisdiction there may be argument but that is not the challenge here (see Solution 6 Holdings & Ors v Industrial Commission of New South Wales & Ors (2004) 208 ALR 328). 131 I reject the submission the intent of the legislature in proclaiming s179 of the 1996 Act was to protect the Commission solely from outside intervention. The Full Bench of the Commission applied the protection of s179 to an order of the Commission in Tempo Services. The union asserted the orders were invalid. Even "purported" decisions of the Commission are protected if the decision is an "alleged" or "intended" or "proposed" decision (see Oxford English Dictionary 2005 and Macquarie English Dictionary 2nd edition). The challenge to the orders of the learned Deputy President is a challenge at law and/or of form. I find the Dispute Orders are protected by the terms of s179 of the 1996 Act.

132 I therefore find: (1) in the application of s179 of the Act, there exists dispute orders as issued by the Deputy President on 28 February 2003.

(2) There was a breach of the said orders by the Australian Workers' Union, NSW Branch.

(3) The matter is stood over for relisting as to penalty.

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