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

A. Manson v St. Vincent's Hospital Sydney(No1) 963 AR(NSW) 627 - [2005] NSWIRComm 261 - NSWIRComm 1992 case summary — Zoe

[14]

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.

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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.

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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 ... ..

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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.

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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.

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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. …

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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."....

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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).

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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.

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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.

[97]

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.

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Judgment (101 paragraphs)

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Cases Cited (14)

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