In these circumstances, I have no hesitation in making the following direction:
1. That the Teachers Federation, its officers, employees and members take all steps available to them to bring about an immediate cessation of all industrial action.
2. That there be no further industrial action taken while the proceedings before the Full Bench in matter number IRC 6099 of 1999 continues.
3. That the Executive of the Federation which is meeting today, take all steps reasonably available to it to disseminate this direction to its members, including the immediate posting of this direction on its internet web page. To that end a copy of the direction is provided to the parties in disk form.
4. That the Department take similar steps available to it, to disseminate this direction.
5. That the meeting between the parties, scheduled for tomorrow at 9 am, proceed in accordance with the Full Bench's direction and that the parties there consider what each other advances, in accordance with the requirements of s 134(4) of the Act. This includes that the parties bargain with each other in good faith. That approach requires that both parties attend agreed meetings, that they comply with agreed or reasonable negotiating procedures and that they disclose relevant information to each other for the purposes of the negotiations.
5 Later, on the same day, 16 November 1999, the appellant filed an application for leave to appeal and an appeal against the decision and direction of Schmidt J. The application for leave to appeal and the notice of appeal was accompanied by an affidavit of urgency and also by an application for stay. Subsequently, appropriate directions were given and the matter was heard and decided.
6 In its amended notice of appeal the appellant specified the questions raised by the appeal as:
1. Whether her Honour was correct in finding that the appellant was in breach of any commitments given by the Commission.
2. Whether a right to strike is precluded by the Industrial Relations Act 1996.
3. Whether the appellant was afforded natural justice in the making of the direction.
7 The reasons given as to why leave to appeal should be granted were:
1. The appeal concerns findings that a registered organisation has breached commitments given to the Commission.
2. The extent to which there is a right to strike and the extent to which it is curtailed by the Industrial Relations Act 1996 have not been the subject of any authoritative or substantive decision of the Commission.
3. The natural justice arguments on appeal raise questions of jurisdiction.
8 The appellant argued its case on the appeal and application for leave to appeal on the following bases. As to the alleged breach of commitments, it was argued that when a large registered organisation such as the appellant is wrongly found to be in breach of commitments given to the Commission, it is a matter of considerable importance which should not be left on the record through the decision at first instance being sustained as a result of leave to appeal not being given.
9 The appellant submitted that although her Honour found that the taking of industrial action was inconsistent with a commitment given to the Full Bench, the appellant had made it clear to the Full Bench that there was going to be a recommendation for industrial action. It linked the collective bargaining process with the industrial action and the Full Bench never sought and was not given a commitment to the contrary. Further, her Honour found that a demand to withdraw the respondent's claim was inconsistent with the commitment given to the Full Bench to negotiate. Various meanings can be given to the word "negotiate". On its broad meaning it can require the making of concessions: Asahi Diamond Industrial Australia Pty Limited v Automotive Food Metals and Engineering Union (1995) 59 IR 385 at 421. This was not the meaning to be given to the word "negotiate", given the context in which the commitment was made to the Full Bench.
10 It was also submitted that the appellant had been wary of giving a commitment to negotiate because that might have been seen as agreeing to make concessions. It was in the context that it did not involve any concession to the employer's claim that the commitment to negotiate was given. While this seems to have been accepted by her Honour at p 5 of the decision, her Honour found that the demand that the claim be withdrawn amounted to a breach of the commitment to negotiate.
11 Further, that even if her Honour thought that it was an unreasonable position, this did not warrant a finding that there was a breach of the commitment to negotiate. The relevant finding was made despite the appellant making the unchallenged assertion from the bar table that it had negotiated with the employer in the intervening period and intended to continue negotiations on the next day. The fact that at such negotiations a withdrawal of the claim was put forward does not constitute a breach of the commitment to negotiate. It was in fact a position taken in the context of negotiations that continued despite that position being taken.
12 There were also submissions as to whether a right to strike was precluded by the Industrial Relations Act 1996 ("the Act") and whether the appellant was denied natural justice in the making of the direction. It was also submitted that a stay of her Honour's orders should be granted to the appellant. As to the stay sought, it was accepted that should be appeal be unsuccessful there was no basis for a stay to be granted.
13 The orders made by her Honour were made under s 134(2) of the Act. It is convenient here to set out the terms of that provision:
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.
14 The key to whether leave to appeal in this matter should be granted is whether it was open to her Honour to make the challenged direction under s 134(2) having regard to the limited consequences of such a direction.
15 Failure to comply with a direction made under s 134(2) has very limited consequences. A failure may not be penalised although it may be taken into account by the Commission in exercising its functions under the Act. Without being exhaustive, this could occur, for example, when the Commission was considering whether to make recommendations or directions as to good faith bargaining under s 134(4) or when the Commission considers whether to issue a certificate of attempted conciliation under s 135. In those situations the Commission would be required to give the relevant party to the dispute the right to be heard (to a reasonable but not unlimited extent) as to whether a s 134(2) direction should be taken into account at the relevant time as to the further issue or step in the dispute proceedings. It would be open to the affected party to submit that circumstances which may have been material to the earlier finding should be reconsidered or considered in a different perspective.
16 The other important consideration in the exercise of the power under s 134(2) is that it arises in the context of the conciliation phase of the dispute which may occur, as it did in this matter, in circumstances of significant industrial disputation and dislocation of an essential public service. The Commission may not be able to engage in extensive fact-finding, or may only receive factual information by uncontested or contested statements made from the bar table. It may be impracticable to undertake any substantial proceeding to determine the facts in dispute and the proceedings are thereby akin to proceedings for interlocutory relief.
17 The making of a s 134(2) direction is manifestly one of the matters available to the Commission in fulfilling the mandate upon it under s 134(1) "to do everything that seems proper to assist the parties to agree on terms for the resolution of the dispute" which, in turn, is to be construed by reference to the object in s 3(g) of the Act, which reads as follows: