BHP Steel Ltd v The Australian Workers' Union, New South Wales - [2003] NSWIRComm 151 - NSWIRComm 2003 case summary — Zoe

NSWNSWIRComm

BHP Steel Ltd v The Australian Workers' Union, New South Wales

[2003] NSWIRComm 151

Industrial Relations Commission (NSW)|2003-07-01|Before: Haylen J

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Source facts

Court

Industrial Relations Commission (NSW)

Decision date

2003-07-01

Before

Haylen J

Source

Original judgment source is linked above.

Judgment (100 paragraphs)

[1]

Industrial Relations Commission of New South Wales in Court Session

[2]

CITATION : BHP Steel Ltd v The Australian Workers' Union, New South Wales [2003] NSWIRComm 151 APPLICANT: BHP Steel Ltd PARTIES : DEFENDANT: The Australian Workers' Union, New South Wales FILE NUMBER: IRC No 4899 of 2002 CORAM: Haylen J CATCHWORDS : Industrial Relations Act, 1996 - s 139 - proceedings for alleged breach of dispute orders - preliminary issue regarding civil or criminal nature of proceedings - issue of nature of proceedings dealt with as a question of construction - consideration given to decisions made under 1991 Act and 1996 Act in similar proceedings - s 139 proceedings not treated as a contempt of court by legislature - s 180 deals with contempt - injunctive nature of s 137 orders not decisive -approach in Witham v Holloway relevant only to contempt proceedings - s 139 proceedings held to be civil in nature - by operation of s 141, Evidence Act, civil onus applies in matters arising under s 139 subject to Bringinshaw considerations. Industrial Arbitration Act 1940 s 8 s 8A s 93(1) 100 Industrial Relations Act 1996 s 137(1)(a) s 139 s 139(3) s 139(5) s 180 Chapter 7 Part 1 s 357 s 357(7) s 359 Chapter 7 Part 6 s 397 s 398 s 399 LEGISLATION CITED : Industrial Relations Act 1991 s 194 s 195 s 167 Evidence Act s 140 s 141 Conciliation and Arbitration Act 1904 s 119 Fines Act 1996 s 3(1) s 4(1) s 87(1) s 139(3)(f) Justices Act 1902 s 82(2) Attorney-General v Radloff (10Ex 84) Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 Board of Fire Commissioners of NSW v NSW Fire Brigade Employees' Union (1953) AR 622 In re Building Workers' Industrial Union of Australia, NSW Branch (1957) AR 655 Briginshaw v Briginshaw (1938) 60 CLR 336 Coles Supermarket (Australia) Pty Ltd v National Union of Workers (NSW Branch) [1997] NSWIRComm 24 Commissioner for Motor Transport v Train (1972) 127 CLR 396 De Voss v Daly (1947) 73 CLR 509 Director-General, Department of Education and Training v Teachers' Federation [2000] NSWIRComm 17 Ex parte Australian Timberworkers' Union v Veneer Co Ltd (1936) 37 SR(NSW) 52 Ex parte McLean (1930) 43 CLR 472 Ex parte Walsh (1912) 12 SR (NSW) 306 CASES CITED : Gapes v Commercial Bank of Australia Ltd (1979) 38 FLR 431 Meat and Allied Trades Federation of Australia (NSW Division) v The Australasian Meat Industry Employees' Union, NSW Branch (1976) AR 818 Houghton v Oakley 21 NSWR 26 National Australian Bank Ltd v Rusu (199) 47 NSWLR 309 Newstead Wharves & Stevedoring Co (Pty) Ltd v Chamberlain Ex parte Chamberlain [1954] QSR 331 Platt v Treweneck, Green Cab Services Pty Ltd v Platt (1953) 52 AR (NSW) 642 R v Whitchurch 7 QBD 534 Railway Commissioners of New South Wales v Hunt: re Steel (1931) AR( NSW) 155 In re Quarrymen's Union of NSW (1944) AR 186 In re The Federated Engine Drivers and Firemen's Association of Australasia, Coast District (1955) AR 171 Seaman v Burley [1896] 2 QB 344 Transport Workers Union of Australia, New South Wales Branch v Australian Document Exchange Pty Ltd t/as Grace Couriers (2000) NSWIRComm 74 Vehicle Builders Employees Federation of Australia v General Motors-Holden Pty Ltd (1977) 32 FLR 100 Witham v Holloway (1995) 183 CLR 525 HEARING DATES: 03/24/2003 DATE OF JUDGMENT: 05/15/2003

[37]

33 On any analysis, penalties of a severe nature can be imposed upon industrial organisations under s 139. The maximum financial penalties available were of a significant order, and higher than the maximum penalties applicable to a number of offences under the 1996 Act. Other of the available penalties for industrial organisations were no less serious in nature: they included deregistration, which for an industrial organisation involved the removal of all its status, rights and privileges under the Act and may well, in a practical sense, lead to the end of its existence. It was not correct to say that these were "general discretionary remedies directed to the resolution of tangible industrial situations" as submitted by BHP. The provisions were primarily punitive rather than remedial in nature. This was demonstrated by the fact that proceedings under s 139 may be determined and a penalty imposed long after the resolution of the industrial dispute, which led to the dispute orders being made. Even where a penalty under s 139 was sought and obtained by an employer in order to coerce compliance with a dispute order which had not yet been complied with (which seemed in a practical sense to be an unlikely eventuality), that did not diminish the punitive nature of the proceedings - this was the approach in Witham v Holloway. 34 Consideration had been given to the standard of proof applying in proceedings under ss 8, 8A and 100 of the Industrial Arbitration Act 1940 but none was revealed in which the question in this matter appeared to have been directly considered. In cases involving s 100 (which permitted the imposition of a financial penalty upon an industrial union whose executive or members took part in or aided or abetted an a illegal strike), there were a number of decisions in which the Industrial Commission used language which was suggestive of proceedings of a criminal nature. For example, in Commonwealth Steel Co Ltd v FEDFA (1956) AR 29, Cockle v FWU (1957) AR 602 and Humble v TWU (1961) AR 446, statements were to be found such as: "We find the offence charged proved"; "The union has already been convicted … and cannot, in my opinion, be subjected to a further penalty for what is substantially the same offence"; "The union pleaded not guilty"; "Our conclusion is that the offence has been proved"; and, "The union has had no conviction during the past ten years for an offence under s 100". It was submitted that such statements were very difficult to reconcile with s 100 proceedings being civil proceedings in the ordinary sense. While s 100 of the 1940 Act was different to s 139 of the 1996 Act, in that it did not concern breaches of orders of the Commission, the important parallel was that, like s 139 of the 1996 Act, s 100 was punitive in nature and treated as such by the Commission.

[55]

52 Marks J was assisted in reaching his conclusion in the Department of Education case by the decision in Mudginberri. The decision of the High Court in the Mudginberri case raised as the principal issue, whether the Federal Court had power to impose a fine in respect of a contempt consisting of wilful disobedience to an injunction and future acts of disobedience. There were subsidiary issues relating to the Federal Court's power to issue subsequently a writ of sequestration in respect of the appellant's non-payment of the fines and compliance with the proper procedures applicable to proceedings for contempt. Injunctions had been granted against the union pursuant to s 45D(1) of the Trade Practices Act 1974 (Cth) in circumstances where the union had imposed and supported a picket line at an abattoir. Again, the High Court was involved in a consideration of the distinction between "civil contempt" and "criminal contempt". In dealing with the power of the court to fine for breach of a court order and continued disobedience to that order, the majority (Gibbs CJ, Mason, Wilson and Deane JJ) stated: These are considerable powers, resort to which imposed a heavy responsibility upon a court confronted with a determined challenge to its authority. The propriety of their exercise cannot be measured solely by reference to the established procedures attending the prosecution of ordinary breaches of the law. Contempt of court is a distinctive offence attracting remedies which are sui generis: Morris v Crown Office [1970] 2 QB 114 at 129. It is required of the chosen remedy that it be effective, though no more but no less. For, if it is not effective, serious and lasting damage to the fabric of the law may result (at 115). While it was of interest that the proceedings arose out of an injunction restraining the maintenance of a picket line during the course of an industrial dispute, the case nevertheless turned on the width of the power of the Federal Court to impose penalties where contempt of the court's orders had been established.

[58]

55 Street J spoke of the test laid down by Platt B and the reasoning of Owen J: while commending themselves, however, they were thought not to be in accord with other decisions which the court thought should be followed. Under the legislation being considered, a justice was not bound to order imprisonment in default of non-payment, but if a justice did so, a term of imprisonment was to be specified and there was to be no release from imprisonment when the sum was paid. The proceedings therefore may end in imprisonment. A number of English cases had followed this approach where statutes allowed a penalty to be imposed and if necessary recovered under Jervis' Act. These cases operated on the basis that, because a person became liable to a "penalty", that was sufficient to constitute a criminal matter. Other cases held that, even if the justice was not bound to impose a penalty, and there were alternative remedies, the matter was criminal in nature (eg. R v Whitchurch 7 QBD 534). On these approaches, the imposition of a penalty was sufficient to have the proceedings regarded as criminal in nature. Street J went on to deal with this line of cases, stating that all proceedings to recover penalties were criminal proceedings. In these cases, much turned on the fact that justices exercised a largely criminal jurisdiction although exercising some civil jurisdiction and, further, the justices mostly ordered payment of money in police matters. In such cases, if the amount of money was not paid, an alternative order of imprisonment was made. There were other cases which turned on the procedure of the court: thus, an assault could be civil or criminal depending on how and where it was commenced (per Lord Esher MR in Seaman v Burley [1896] 2 QB 344). It was important in this approach that, depending on where the case started, whether there would be an appeal - a criminal proceeding did not permit of an appeal. Lord Esher was able to decide that case on the basis that the proceedings were before magistrates and "may end in imprisonment", and thus were to be treated as criminal proceedings within the meaning of s 47 of the Judicature Act 1873 and therefore no appeal lay. Street J was of the view that nothing in the cases turned upon the particular words "criminal cause or matter" used in s 47 of the Judicature Act. In each case, the question considered was whether the order sought to be appealed from was made in a criminal proceeding applying the test laid down for distinguishing criminal proceedings from civil proceedings. Street J concluded that the approach of Platt B and Owen J, holding that the answer to the question depended on the nature of the matter complained of was not to be preferred, as later authorities established that, whether the matter complained of was in its nature criminal or not, if the proceedings were before justices and may end in imprisonment, then the proceedings were criminal.

[74]

73 The first observation I wish to make is that I see an abundance of sense in the caution expressed by Sweeney J in Gapes case regarding the use which can be made of decisions where the point itself was not being considered by the court. Thus, the various phrases used by members of the Commission in relation to proceedings under the 1940 Act do not, ultimately, assist in resolving the issue before the Court. Secondly, many of the earlier decisions turned upon the nature of the court which was allocated the task of enforcing the pecuniary penalty which had been imposed. Many of those cases were decided at a time when courts of Petty Session administered a predominantly, if not exclusive, criminal jurisdiction under the Justices Act. The width of jurisdiction now exercised by local courts effectively neutralises such an approach. Thirdly, the cases which adopt as definitive a test of the ultimate possible sanction of imprisonment following the non-payment of a pecuniary penalty, suffer from the same difficulty as those cases which focus on the nature of the jurisdiction exercised by courts of Petty Session. For example, in Train, it was clear that the High Court not only had regard to the "test" of imprisonment being the ultimate sanction, but was also influenced by the fact that the imposition of the penalties fell to a court exercising little or no civil jurisdiction. Train is also an example of a case where, on a proper approach to the legislative scheme, there was but one linked proceeding whereby the penalty was imposed and in the same order a period of imprisonment imposed in default of payment of the penalty specified. In its original form, that was the operation of s 82(2) of the Justices Act which was considered in Train and which caused the Full Bench in Platt v Treweneck to decide that what had previously been a civil proceeding had, by statutory amendment, become a criminal proceeding. Fourthly, the modern approach, as appears from the judgment of the High Court in Train and in the Full Court of the Federal Court in Gapes, is to concentrate on the issue of construction and a search for the intention of the legislature without compromising that approach by the inflexible application of so called tests which are said to provide unequivocal signposts as to whether a statutory provision involves criminal or civil proceedings.

[92]

91 Counsel for the AWU drew attention to the provisions of s 139(5), which states: (5) Any such penalty may be recovered in the same way as a penalty imposed by the Commission for an offence against this Act. It was submitted, firstly, that this provision was an indication that proceedings under s 139 were to be treated as if they were proceedings for an offence and therefore were criminal in nature. Secondly, it was submitted that this provision brought into play the provisions of the Fines Act 1996: a variety of steps was available for the recovery of fines imposed by courts including the Industrial Relations Commission and at the pinnacle of recovery remedies was the capacity to imprison a person for non-payment of a fine. Thus, it was said that, approaching s 139 in the way adopted by the Supreme Court in Ex parte Walsh and by the Full Bench of the Commission in Platt's case, the fact that proceedings under s 139 may end in imprisonment meant that proceedings under the section were criminal in nature and the criminal onus of proof applied. 92 The Fines Act 1996 is described as "an Act relating to fines and their enforcement and to other matters". By s 4(1) a "fine" is defined to mean any monetary penalty imposed by a court for an offence, or any amount payable under a penalty notice enforcement order or any court fees or charges payable by a person under an order by a court in the proceedings for an offence or any amount of a kind prescribed by the regulations. Section 3(1) defines "court" to mean, inter alia, the Industrial Relations Commission. It would appear from the definition of "fine" that, if s 139 does not create an offence, then any monetary amount payable needs to be an amount payable under a penalty notice enforcement order. The technicalities of this position may be overcome by the terms of s 139(5), which effectively requires any monetary penalty imposed under the section to be treated in the same way as a penalty for an offence against the Act would be recovered. Under s 5, a summary of the procedure for the payment of court fines is set out. The procedure for the payment of fines imposed by a court involves the following steps: (a) a fine imposed by a court is payable within 28 days after it is imposed; (b) the person on whom the fine is imposed is to be notified of the fine, the arrangements for payment and any action that may be taken under this Act to enforce the fine; (c) the court registrar may allow further time to pay the fine on the application of the person; (d) if payment of the fine is not made by the due date, a court fine enforcement order may be made against the person. If the person does not pay the amount (including enforcement costs) within 28 days, enforcement action authorised by the Act may be taken. Under s 20, a penalty notice may be issued in relation to proceedings brought pursuant to s 396 of the Industrial Relations Act. That notice specifies the offence against the Act or the regulations which is alleged to have been committed. Where there is a failure to pay the amount required by the penalty notice, Divisions 3 - 5 of the Fines Act sets out the procedure that then applies. By s 35, a person who is alleged to have committed or to be guilty of an offence to which the penalty notice relates has the right to elect to have the matter dealt with by the court. Section 40 provides that a penalty notice enforcement order is an order made by the State Debt Recovery Office for the enforcement of the amount payable under a penalty notice. The notice allows the enforcement of the penalty imposed and the payment of specified costs of enforcement.

BHP Steel Ltd v The Australian Workers' Union, New South Wales

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