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

Industrial Relations Commission (NSW)|2000-02-24|Before: Haylen J, Mr J

Industrial Relations Commission of New South Wales in Court Session

CITATION : BHP Steel Ltd v The Australian Workers' Union, New South Wales [2003] NSWIRComm 423 APPLICANT BHP Steel Ltd PARTIES : DEFENDANT The Australian Worker' Union, New South Wales FILE NUMBER: IRC 4899 of 2002 CORAM: Haylen J CATCHWORDS : Industrial Relations Act 1996 - s 137 - dispute orders - limited nature of orders that may be made as 'dispute orders' - use of s 136 to make supporting or ancillary orders considered - order to discuss an urgent need for despatch of product not a 'dispute order' made under s 137 - order the union, its officers and members take all reasonable steps to secure return to work not a 'dispute order' made under s 137 - no breach of dispute orders as alleged - consideration of conduct covered by the orders results in finding of no breach as alleged - application dismissed LEGISLATION CITED : Industrial Relations Act 1996 s 130 s 136(1)(d) s 137(1)(a) s 138 s 139(3)(a) City of Botany Bay v Federated Municipal and Shire Council Employees' Union of Aust., NSW Division(24 February 2000, IRC 638 of 2000). CASES CITED : Public Employment Office v NSW Fire Brigades Employees Union (unreported, 1 December 1999, IRC 6599 of 1999). The Transport Workers Union v Chubb Security Services [2001] NSWIRComm 248 HEARING DATES: 11/05/2003; 11/06/2003 DATE OF JUDGMENT: 12/01/2003

APPLICANT Mr R J Buchanan QC with Mr R S Warren of counsel SOLICITOR Mr D Lloyd Blake Dawson Waldron

LEGAL REPRESENTATIVES: RESPONDENT Mr A A Hatcher of counsel SOLICITOR Mr J Howard Maurice May & Co

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

1 December 2003 Matter No. IRC 4899 of 2002 BHP Steel Ltd v The Australian Workers' Union, New South Wales Application by BHP Steel Ltd for summons pursuant to s 139 of the Industrial Relations Act 1996 as to alleged contravention of dispute orders made by Commissioner Connor on 5 August 2002 in matter IRC 4103 of 2002 JUDGMENT [2003] NSWIRComm 423

1 On 26 August 2002, the applicant, BHP Steel Ltd (BHP), applied for a summons under s 139 of the Industrial Relations Act 1996 claiming that the respondent, The Australian Workers' Union, NSW (The AWU), had contravened dispute orders made by Commissioner Connor on 5 August 2002.

2 The background to the dispute which ultimately resulted in the dispute orders being issued by Commissioner Connor were fully set out in affidavits before the Commission. As the matter developed it was accepted that those issues formed an historical backdrop to the matters critical to the determination of the present application and summons. Briefly stated, it appears that in July 2002 BHP notified a dispute under s 130 of the Act concerning employees in the Finishing section of the Painting and Finishing Department at the company's Springhill operations at Pt Kembla. BHP alleged that there was a strike of its employees from this Department which was of indefinite duration and which appeared to be related to the dismissal of an employee usually employed in the Finishing section. The employee dismissed, Mr O'Driscoll, was the subject of medical monitoring and the BHP rehabilitation and counselling programme. It became clear as the dispute progressed that the members of the AWU involved in the strike regarded the treatment of Mr O'Driscoll as raising serious concerns about the operation and application of the rehabilitation programme and in this regard transcended Mr O'Driscoll's individual interests and the strike which had originated in the Finishing section.

3 Conciliation was conducted by Deputy President Grayson and there was a return to work. However, a further indefinite strike occurred on Friday, 2 August 2002 and BHP sought an urgent re-listing of the matter which came before Commissioner Connor. BHP expressed its concern that the provisions of a recently made Enterprise Agreement specifically dealing with the prompt despatch of product urgently required by clients was not being adhered to and that, in any case, there should be a resumption of work.

4 On Friday2 August 2002, Commissioner Connor recommended the resumption of work, to be conveyed to a stop work meeting to be held on Monday, 5 August 2002. The Commissioner also understood that he had received undertakings on behalf of the AWU that contingency arrangements would be put in place over the weekend for the loading and despatch of product urgently required by a BHP client, namely Electrolux. When the matter resumed before Commissioner Connor on 5 August 2002, he was informed that the employees had continued their strike and that no arrangements had been made over the weekend to supply the product to Electrolux. During the course of these proceedings the AWU representative emphasised how the issue concerning Mr O'Driscoll was perceived as having wider implications: he was obviously seeking to progress that matter as a means of resolving the present strike action.

5 At the conclusion of the proceedings on 5 August 2002, the Commissioner, on the application of BHP, issued dispute orders in the following terms: 1. Members of the AWU employed by BHP Steel (JLA) Pty Limited in its finishing section at the Springhill CRM works at Port Kembla shall cease and refrain from taking any further industrial action and shall work in accordance with normal work requirements and their contracts of employment. 2. The AWU, their respective officers and employees shall take all reasonable steps to ensure compliance with that order in paras 1 above and should hold immediate discussions with BHP with respect to the despatch of stock (coils) for Electrolux. 3. Upon resumption of work by the employees, the AWU and BHP shall hold further discussions concerning the question of the processes for rehabilitation in general and shall report to me the outcome of those discussions when the matter resumes before me on Tuesday, 17 September, 2002. At that time I will entertain any application for the variation or recission of the orders. 4. This order shall come into effect on Tuesday, 6 August, 2002 and shall remain in force until Tuesday, 17 September, 2002 unless varied or rescinded in the meantime.

6 For present purposes it is sufficient to record here that there were already arrangements made for the striking AWU members to hold a "gate meeting" at 7.00 am on 6 August 2002 and representatives of the AWU made it known at the conclusion of the proceedings before Commissioner Connor that the dispute orders would be taken to that meeting. The 7.00 am meeting, however, resolved not to end the strike and discussions continued with representatives of BHP at meetings held at approximately 9.30 am and 10.30 am before BHP returned to the Commission again to extend the orders to other unions who had become involved in the dispute. Commissioner Connor acceded to BHP's request and widened the dispute orders to encompass both the ETU and the AMWU: immediately after those orders were made, all the union parties went into further discussions with BHP which ultimately resulted in the adoption of a "peace plan". That agreement was reached at approximately 6.30 pm but the night shift for the Finishing section did not resume work. Two AWU delegates then attended to the despatch of urgently needed product, which on the evidence, occurred in a work period of 45 or 50 minutes in total. The striking AWU employees returned to work on 7 August 2002. It will be necessary to traverse the detail of these matters in dealing with the summons and alleged breaches.

7 The summons to show cause issued on the application of BHP relevantly stated: It is alleged that on 6 and 7 August 2002 you contravened the dispute orders made by Commissioner Connor of the Industrial Relations Commission of New South Wales on 5 August 2002 in matter No IRC 02/4103 under s 137 and s 138 of the Industrial Relations Act 1996. It was stated that further details of the allegations were contained in the application for summons under s 139 of the Act filed on 26 August 2002 and in the affidavit of Mr Meena sworn on 26 August 2002.

8 The particulars set out in the application for summons, apart from setting out the dispute orders issued by Commissioner Connor contained the following: 3. Members of the respondent employed by the applicant at the Finishing Section of the applicant's Springhill Works at Springhill Road, Pt Kembla NSW engaged in a strike from at or about 7.00 am on 2 August 2002 to at or about 8.00 am on 7 August 2002 and were not available to perform work in accordance with their normal work requirements and their contracts of employment. 4. Members of the respondent employed in the Finishing Section attended a gate or report back meeting from at or about 7.00 am to at or about 11.00 am on 6 August 2002. 5. The gate or report back meeting was attended by Darryl Anderson, an official of the respondent. 6. Despite the gate or report back meeting, the strike by members of the respondent employed in the Finishing Section continued until at or about 8.00 am on 7 August 2002. 7. The respondent did not take all reasonable steps to ensure compliance with the dispute orders and did not hold immediate discussions with the applicant about the despatch of stock for Electrolux. 8. The respondent has acted in contravention of the dispute orders. At the hearing, without objection, BHP amended the particulars by including a new paragraph 7A in the following terms: The respondent, through its officers, delegates and employees, failed to take all reasonable steps to ensure that employees of the applicant despatched urgent product to the applicant's customers and thereby breached the dispute orders.

9 In its application for summons, BHP gave notice that at the hearing, pursuant to the provisions of s 139(3) of the Act, it would intend to also seek an order: (a) imposing a penalty on the respondent under s 139(3)(e); and (b) such other order against the respondent as the Commission in Court Session considered appropriate.

10 In the course of the hearing senior counsel for BHP indicated three ways in which the dispute orders were breached: 1. the AWU failed to take all reasonable steps to ensure compliance with the order requiring the cessation of industrial action and a return to work; 2. there was no effort made by the AWU to have the urgent despatch work performed; 3. the AWU had failed to confer in relation to the despatch of stock for Electrolux.

THE EVIDENCE FOR BHP 11 Mr Meena was the president of the Springhill Works of BHP. He said that the Springhill Works included a Painting and Finishing department which also contained a Finishing section. The Finishing section operated on a continuous basis 24 hours a day, seven days a week and employees in that section were rostered to work shift work or day work so as to meet operational requirements. Mr Meena recounted the history of the dispute over the termination of Mr O'Driscoll, the proceedings before the Commission on 2 August 2002 and the failure of the striking employees to accept the recommendations of the Commission at their morning meeting on 5 August 2002.

12 Mr Meena stated that in the 5 August 2002 proceedings in the Commission, Commissioner Connor personally handed to Mr Anderson, an official of the AWU, a copy of the dispute orders that had been made. This had occurred in the presence of a number of management and legal representatives for BHP. At the conclusion of the proceedings BHP management representatives had sought to engage Mr Anderson and a BHP employee and AWU delegate, Mr Gorgievski, in discussions about despatching stock to Electrolux but both of them failed to engage in such a discussion.

13 Between 7.00 am and about 11.00 am on 6 August 2002, the AWU conducted a gate or report back meeting of employees. That meeting had been attended by Mr Anderson. Despite the meeting being convened, the strike continued. Because the strike was continuing, representatives of BHP sought to have the proceedings in the Commission relisted. The relisting also extended to the AWMU and the ETU because of related strike action which had commenced on 6 August 2002 by members of those unions. This was regarded as an escalation of the earlier dispute proceedings which had involved only the AWU.

14 Mr Meena, in his affidavit, asserted that despite the making of the dispute orders, the AWU, its officers and employees had failed to take all reasonable steps to ensure compliance with order 1, contrary to order 2 of the dispute orders. In cross-examination these failures were stated to be: the absence of immediate discussions about urgent despatch; the failure to return to work; the failure to take steps to get the employees back to work.

15 Mr Meena had noticed striking workers in the visitors car park on 6 August 2002 when he came to work. At about 8.50 am the meeting in the car park appeared to have broken up and he telephoned Mr Phillips, an organiser for the AMWU and asked what had happened at the meeting. He was told that there was going to be a gate meeting to discuss Mr O'Driscoll. In answer to Mr Meena, Mr Phillips told him that Mr Anderson and Mr Gorgievski knew of the orders to return to work but said that the whole site would decide the next step to be taken.

16 Shortly after 9.00 am there was a meeting with representatives of BHP and representatives of a number of unions including the AWU. There was a discussion about Mr O'Driscoll and the BHP rehabilitation process. Mr Meena raised the issue of compliance with the order and also informed the meeting that the dismissal of Mr O'Driscoll would stand. The union representatives then left the room at approximately 9.20 am and headed towards the visitors' car park. At about 10.40 am Mr Anderson, Mr Gorgievksi and a number of other AWU delegates returned and met with Mr Meena and other BHP representatives. He was informed by Mr Anderson that the plant was now in dispute and that there would a report back at 7.00 am the next day. Mr Meena then raised the issue of the Enterprise Agreement and the despatch of urgent orders and asked for compliance with the dispute orders - Mr Anderson told him that the unions did not accept that the Electrolux needs were urgent, that they had not gone through the process and that Mr Phillips had been told by his delegate that everything was alright at Electrolux. He asked to speak to Electrolux.

17 At about 11.00 am on 6 August 2002, Mr Meena approached Mr Anderson again raising the Enterprise Agreement and offering him a copy of the provisions dealing with urgent despatch. Mr Anderson told him that the whole intent of that clause of the Enterprise Agreement was in dispute with both the AWU and the AMWU. Mr Meena again raised the issue of compliance with the orders.

18 At about 4.30 pm on 6 August 2002, Mr Meena attended another meeting with representatives of the AWU, the AWMU and the ETU including a number of delegates. There was discussion about Mr O'Driscoll and whether there would be compliance with the orders. There was also a discussion about rehabilitation policies. The meeting broke up to enable the union representatives to discuss these matters and when the meeting re-convened seven points had been written on an electric electronic whiteboard. There was discussion about these proposals and although some nightshift employees had commenced arriving, Mr Phillips stated that a skeleton crew would be used to despatch the urgent product. That indeed occurred later on in that night. Mr Meena said that during this meeting it appeared to him that Mr Phillips was speaking on behalf of all unions including the AWU.

19 Ms Latchford was the Human Resources Manager for BHP at the Springhill Works. She was at Springhill on 6 August 2002 and participated with other representatives of BHP in meetings with Mr Anderson and other AWU delegates during the course of the day. She recalled the first meeting was held between 9.05 am and 9.20 am which involved Mr Anderson, AWU delegates and Mr Phillips from the AMWU. Her recollection was that this meeting focussed on the original issue of dismissal of Mr O'Driscoll although she confirmed that Mr Meena raised the need to return to work in accordance with the dispute orders.

20 She recalled that the employees had a further meeting in the car park after 10.00 am and then returned to meet with BHP representatives between 10.30 am and 10.40 am. In this meeting Mr Anderson advised that the plant was in dispute and was out indefinitely and that there would be a report back at 7.00 am the next day. She confirmed the discussion between Mr Meena and Mr Anderson about BHP invoking the Enterprise Agreement for urgent orders and Mr Anderson saying that they had not gone through the right process and the unions did not believe that Electrolux was really in trouble because one of Mr Phillips' delegates had said that they were "fine". In this conversation she recalled Mr Anderson asking to speak to Electrolux and Mr Meena saying that was not going to happen. After a further discussion with union representatives Mr Anderson informed BHP representatives that the whole of clause 9 of the Enterprise Agreement dealing with despatch was in dispute and it was in dispute with the AMWU as well.

21 Ms Latchford also confirmed the further listing of the matter before Commissioner Connor during the course of 6 August 2002. At approximately 4.25 pm a further meeting took place at Springhill with representatives of BHP and the unions including the AWU. In this meeting there was again discussion and disagreement about whether product was actually urgent for the client as alleged by BHP with the unions reasserting the need to confirm the accuracy of the requirement for urgent supply of product. There was also discussion about the BHP rehabilitation policy and the discussion worked towards a resolution of Mr O'Driscoll's position. The unions then met separately and when BHP representatives returned there was a seven point plan written on the electronic whiteboard.

22 There were further discussions about the proposals sought by the unions with Mr Phillips appearing to lead the discussion for the unions. Mr Phillips later in this meeting confirmed that the employees would not be returning to work that night but that urgent product would be despatched utilising some of the employees or delegates who were present. There was then a discussion about how that could be done as quickly as possible. The despatch process commenced at approximately 7.00 pm and had been completed by approximately 8.00 pm.

23 Ms Renkin was the operations-coordinator, Painting and Finishing department at the Springhill Works. She gave evidence as to the background to the strike commencing on 2 August 2002 and dealt with a number of events which took place on 5 August 2002. She confirmed that at the conclusion of the proceedings where Commissioner Connor made the dispute orders, Mr Anderson was approached in relation to the need to discuss urgent despatch work. Either Mr Anderson or Mr Gorgieveski said that they needed to get everyone together and then left the Commission as did other representatives of BHP.

24 On 6 August 2002, Ms Renkin noticed the employees having a meeting in the car park and noted that from the beginning of the day until she left work at about 8.15 pm the plant was stopped. No employees other than staff (supervisors, management and administration) attended work that day. At the beginning of the day, at approximately 7. 15 am when she arrived, all areas apart from the Finishing line was working. She attended a meeting with representatives of BHP and the unions, including AWU representatives, at about 9.00 am where Mr Anderson again raised the position of Mr O'Driscoll. She also heard Mr Meena and others including Ms Latchford raise the issue of urgent despatch and the fact that there were orders from the Commission. The unions wanted to discuss Mr O'Driscoll's situation and not the issue of urgent despatch. BHP representatives were not prepared to accept propositions about Mr O'Driscoll and that is when the whole of the site went on strike.

25 Ms Renkin was present at the proceedings on 6 August 2002 before Commission Connor. After the expanded orders were handed down the unions were spoken to about the need to attend to urgent despatch - Mr Phillips responded by saying: "Okay. How and when?". A meeting was then arranged between representatives of BHP and the unions to commence at the site at about 4.00 pm. During this meeting a lot of the time was spent discussing the O'Driscoll issue. The point was reached when it was accepted that Mr O'Driscoll would not be reinstated but the company would continue to pay for his rehabilitation and would consider his application for any externally advertised position arising at the works. BHP representatives then pressed for an immediate return to work.

26 After about 6.00 pm employees on the night shift began to attend the site wanting to know if they were to work. Arrangements were made for them to talk to the union officials after which Mr Phillips returned saying that the unions could not get a return to work that day and that it would have to take place in the morning. Further discussions then took place about urgent despatch and with the participation of a number of union representatives, despatch ultimately took place.

27 Mr Gerovasilis was the Painting and Finishing manager at the Springhill Works of BHP. He also dealt with the background to the issue concerning Mr O'Driscoll especially since his dismissal in July 2002. He dealt with the meeting of employees on 2 August 2002, the discussions which took place with the unions and the strike by the Finishing employees. He confirmed that at this time there was a discussion about urgent despatch. He also gave evidence about proceedings in the Commission on 2 August 2002 and again pursuing the issue of urgent despatch.

28 Mr Gerovasilis had a discussion on the telephone with Mr Anderson while driving home to Wollongong after the Commission proceedings where Mr Anderson questioned whether the Electrolux situation was urgent. Mr Anderson had asked for the telephone number of someone at Electrolux so he could check the facsimile but that was rejected because BHP did not give out the customer's telephone numbers. There was a facsimile from Electrolux which was available for Mr Anderson to see but Mr Anderson said that he did not have time to do that.

29 Mr Gerovasilis also gave evidence about discussions with Mr Anderson and Mr Gorgievski on 5 August 2002 after the gate meeting when the issue of Mr O'Driscoll was raised again and when the BHP representatives were informed that the Finishing section was on strike. Mr Gerovasilis attended the Commission hearing on 5 August 2002 and said that after the hearing he and another BHP representative, Mr Sebbens, raised with Mr Anderson and Mr Gorgievski the issue of urgent despatch. BHP offered to contact the employees in relation to the orders but Mr Anderson said that was their job and that there was already a meeting planned for the following day. When asked about urgent despatch Mr Anderson had replied that urgent despatch had not been agreed to. After this discussion the parties left the Commission.

30 Mr Gerovasilis asserted that he would have known if any steps had been taken by the AWU to arrange for the despatch of urgent items but no contact was made with him to discuss such a possibility.

31 In relation to the events on 6 August 2002, Mr Gerovasilis confirmed the meeting at approximately 9.00 am which took place with Mr Anderson and Mr Gorgievski when Mr Meena was present. Shortly after that meeting there was a further discussion about having Mr O'Driscoll proceed through the rehabilitation process and the plant being in dispute and there being a report back arranged for the following day. Mr Meena had raised the issue of urgent despatch but neither Mr Anderson nor Mr Gorgievski responded directly to that issue. He was present at the proceedings in the Commission before Commissioner Connor at 2.00 pm that day and after its conclusion again approached Mr Anderson and Mr Gorgievski about a discussion relating to urgent despatch. It was agreed to meet at 4.00 pm at the site. That meeting took place with representatives of not only the AWU but also the AMWU and the ETU present. There was some discussion which concentrated on Mr O'Driscoll and the unions met separately and later came back with a proposal for a resumption of work the following day including a willingness to talk about urgent despatch. There were discussions which then took place about urgent despatch and the supervisors who were present were able to organise trucks for that purpose. He saw Mr Gorgievski and others go into the plant to perform the despatch work themselves. It was not until about 8.00 pm on 7 August 2002 that the employees returned to work.

32 Mr Sebbens was the Human Resources advisor at the Springhill Works for BHP. He was involved in the meeting where Mr O'Driscoll was dismissed and was also involved in subsequent meetings with the AWU dealing with Mr O'Driscoll and leading up to the events of Friday, 2 August 2002. He was involved in a meeting with representatives of BHP and the AWU discussing Mr O'Driscoll's dismissal following conciliation proceedings before Deputy President Grayson on 16 July 2002. On 2 August 2002, the meeting finished at approximately 8.30 am and by 8.45 am it was advised that the Finishing employees had voted to go on strike indefinitely in support of Mr O'Driscoll. As the AWU representatives were leaving the conference room Mr Sebbens called after them and raised with Mr Gorgievski the need to talk about urgent despatch and that if there was no despatch it would be breaching the Agreement. Mr Gorgievski said they could talk about it but he could not hold the employees. Mr Gorman, an AWU official, said that there would be no despatching that day but that the company could despatch whenever it wanted but not using the AWU employees - staff could be used to do the despatch work.

33 About 9.30 am Mr Gorman telephoned Mr Sebbens and raised a number of matters but during the course of this conversation Mr Sebbens raised the provisions of the Enterprise Agreement and the need to talk about urgent orders prior to strike action commencing. Mr Sebbens arranged to send a facsimile to the AWU which indicated that despatch priority was required for product to be sent to Electrolux. Mr Gorman said he was unable to talk about the matter that day and so Mr Sebbens spoke with Mr Anderson.

34 Mr Anderson in a discussion which took place about 11.30 am, said that there had been no discussions about how urgent despatch would work in practice and Mr Sebbens raised the possibility of a "without prejudice" arrangement to be put in place for that day. He sent the same facsimile to Mr Anderson as had been sent to Mr Gorman.

35 Mr Sebbens attended the proceedings before Commissioner Connor at about 4.00 pm that day where certain Recommendations were made. In the course of the proceedings the Commissioner had asked the AWU representatives whether the urgent problems could be addressed by some contingency plan put in place over the weekend to which Mr Anderson replied that he would endeavour to resolve those problems and gave a commitment to do so. After the proceedings had concluded Mr Anderson was asked about the nature of his commitment and what he would do and Mr Sebbens raised with Mr Gorgievski what would happen about urgent despatch. Mr Gorgievski responded by saying that the men had voted and he could not do anything about the difficulty of getting the men to do despatch for Electrolux. At about 5.30 pm Mr Sebbens spoke to Mr Anderson on the mobile telephone while returning from the proceedings following an earlier call made by Mr Anderson to his office. Mr Anderson asked for the telephone number for Electrolux so that he could verify the need for the order and Mr Sebbens told him that there would need to be a discussion about that and he would call back. Mr Gerovasilis then spoke to Mr Anderson by mobile telephone and informed him that he could see a facsimile from Electrolux which was confidential but he could not take a copy. The conversation them seemed to deal with Mr O'Driscoll again and when the telephone conversation ended Mr Gerovasilis said that Mr Anderson was not interested in seeing the facsimile and that there was not going to be despatch of urgent orders - all the AWU wanted to talk about was Mr O'Driscolll.

36 On 5 August 2002, Mr Sebbens noticed a gate meeting when he arrived at work at approximately 7.00 pm and just before 8.00 pm he was told by Mr Anderson that the employees had resolved to stay out. Mr Sebbens then raised the question about urgent despatch but Mr Anderson said to ring Mr Phillips from the AMWU and Mr Thornton from the ETU to organise a discussion as he was not able to discuss it that day because he had four other matters in court.

37 Mr Sebbens then attended proceedings in the Commission at around midday before Commissioner Connor and was present when the dispute orders were distributed. After the orders were handed down Mr Sebbens raised with Mr Gorgeivksi and Mr Anderson the need to discuss urgent despatch. Mr Anderson responded that there needed to be discussions with the employees and then left without engaging in discussion on the subject. Mr Sebbens then attempted to telephone Mr Gorgievski at home and at the AWU office and also tried to speak to Mr Anderson at the AWU office but neither were there to receive the call.

38 When he arrived at work at approximately 7.00 am on 6 August 2002 Mr Sebbens noticed a gathering of employees in the visitors car park. At approximately 9.50 am he attended a meeting between union representatives and company representatives. Mr Anderson, at the opening of the meeting, raised Mr O'Driscoll's dismissal. That matter was discussed for a while until Mr Meena commented that Mr O'Driscoll's situation would not alter in the present circumstances but when the men returned to work BHP would enter into a process with Mr O'Driscoll and others about what rehabilitation means and how personal issues could be handled in the future. That meeting concluded at approximately 10.20 am. About twenty minutes after this meeting concluded Mr Anderson and other representatives returned and informed BHP representatives that the plant was in dispute and that there would be a report back at 7.00 am. Mr Meena raised the provisions of the Enterprise Agreement and the urgent despatch of orders but Mr Anderson said that they had to go through the process and the orders of the Commission required that there be discussions. The unions did not believe that Electrolux were in urgent need of the product and Mr Phillips had been told by his delegate at the Orange plant of Electrolux that the situation was not urgent. In this discussion Mr Gorgievski raised the issue of the union speaking to the customer to determine whether their operations would stop if they did not get the product which they had ordered. These matters continued to be discussed until the meeting concluded at approximately 10.55 am. Shortly thereafter Mr Menna handed Mr Anderson an extract from the EBA and Mr Anderson stated that the whole intent of the clause was in dispute and that they had spoken to the AMWU who told them that Electrolux was not "stocked out". Shortly after that Mr Anderson commenced another discussion about Mr O'Driscoll with representatives of BHP.

39 Mr Sebbens attended proceedings in the Commission at about 2.00 pm that day which involved not only representatives of the AWU, but also Mr Phillips from the AMWU and Mr Thornton from the ETU. Commissioner Connor made expanded dispute orders at this hearing.

40 At the conclusion of the proceedings Mr Phillips approached Mr Sebbens and a meeting was arranged to take place back at the Springhill site. Union representatives and company representatives met at about 4.15 pm and that meeting involved a number of representatives from BHP.

41 On Wednesday 7 August 2002, Mr Sebbens was with a number of BHP representatives at about 8.00 am when Mr Phillips, Mr Thornton, Mr Anderson, Mr Gorgievski and others had a brief discussion at the Visitors Centre where Mr Phillips informed the BHP representatives that the employees had returned to work. The employees returned to work between 8.00 am and 8.15 am that day.

THE UNION'S EVIDENCE 42 At the time of giving his evidence Mr Anderson was the assistant secretary of the Pt Kembla and Southern Highlands branch of the AWU and had been a member of the union since approximately 1981. In August 2002, he had been an organiser for approximately two years. The branch secretary, Mr Andy Gillespie, was the organiser for the Springhill Works of BHP but between July 2002 and mid-August 2002 he was absent on annual leave and Mr Anderson was acting as branch secretary and as organiser for the site.

43 Mr Anderson had become involved in issues involving Mr O'Driscoll and had been involved with members employed in the Finishing section of BHP at the site in relation to issues of rehabilitation. He spoke of concerns expressed by employees from mid-July 2002 about BHP's treatment of Mr O'Driscoll and its wider implications for the workforce. Mr Anderson had been involved in the July 2002 dispute conciliated by Deputy President Grayson where the employees had gone on strike.

44 Mr Anderson was present at a meeting of employees on 2 August 2002 when a vote from the floor imposed an indefinite strike because of the way in which BHP had handled Mr O'Driscoll's case. Later in the day he appeared in proceedings before Commissioner Connor who recommended a return to work and a despatch of product to Electrolux and relisted the matter for further conference on 5 August 2002. While returning home from the proceedings he and Mr Gorgievski had attempted to telephone the Finishing section employees in order to arrange a report back meeting that evening so that the Commissioner's Recommendations could be considered and assistance in the despatch of product to Electrolux. He and Mr Gorgievski made a number of mobile telephone calls but none of the members could be located.

45 On the evening of 2 August 2002, Mr Anderson received a telephone call from Mr Gerovasilis concerning Electrolux despatch. He asked Mr Gerovaslis if he could have a look at the paper work but that was refused because it was said to be confidential. Mr Anderson asked if it could be faxed to the office because he had been in the Commission all day and with members since 7.00 am.

46 As a meeting was not able to be conveyed on the evening of 2 August 2002 he and Mr Gorgievski agreed to contact members in order to convene a meeting and explained the Commissioner's Recommendations at 7.00 am on 5 August 2002. That meeting took place and Mr Anderson recited notes he had made from his appearances before the Commission. Mr Anderson recalled a number of workers complaining that they had to support Mr O'Driscoll otherwise the situation would happen again as it did with a previous employee. Mr Anderson canvassed Commissioner Connor's proposals that an unfair dismissal claim be pursued for Mr O'Driscoll but a motion from the floor was taken to continue the strike. After the meeting Mr Anderson with Mr Gorgievski spoke to Mr Gerovasilis, Ms Renkin and Mr Sebbens. He informed them that the members had voted to continue to strike and asked if there was something could be done to resolve the whole matter. He indicated that reinstatement was not necessary at this stage and he did not want to face issues from other employees about the behaviour of Mr O'Driscoll: what was wanted was for the rehabilitation plan to continue and to then consider the situation at that point. He said that Mr Gerovasilis said that BHP were not going to do anything in relation to Mr O'Driscoll.

47 The Commission proceedings were relisted that day and while on his way to the Commission Mr Anderson contacted Mr Meena who had just returned from leave in order to explain the circumstances and put a compromise to him in order to address the O'Driscoll matter. Mr Meena asked to be contacted by Mr Gerovasilis who later informed Mr Anderson that nothing had changed in relation to the situation.

48 Mr Anderson was present when Commissioner Connor issued the dispute orders and to his memory those orders were issued about 4.30 pm on Monday 5 August 2002. He had explained to Commissioner Connor that he was having problems with the membership who felt very strongly about the issue and also explained that he had never had conduct of a matter where dispute orders had been issued: he considered the matter to be very serious. He had explained that the earliest the orders could be read to the employees was at the meeting which had already been arranged for 7.00 am on Tuesday 6 August 2002. He had explained in conference with the Commissioner and the representatives of BHP the logistical difficulties of being able to do anything about the dispute orders until the matter was put to a meeting.

49 Mr Anderson attended the gate meeting at 7.00 am on 6 August 2002 and read the dispute orders to the meeting. He told the meeting: The issuing of the dispute orders is very serious, you should follow these orders. I have never been involved in a dispute where dispute orders have been issued and recommend that you comply with the orders. He explained the attempts to negotiate a settlement regarding Mr O'Driscoll's rehabilitation plan which had failed and the fact that BHP was concerned with the Electrolux "stock out". This issue made it very difficult to settle the O'Driscoll matter. Members at the meeting complained about the unfairness of BHP to Mr O'Driscoll and his personal circumstances and the wider ramifications of the issues.

50 Mr Anderson became concerned that members were talking about involving other areas of the site and said to the meeting: The dispute orders have to be complied with, you have to go back to work, these are very important orders, these are serious orders of the Commission and you should go back to work. After making this statement, employees at the meeting said that it was a big matter and involved all of the site. Members from the floor then proposed a motion for a general meeting so that all other sections could be informed about the dispute and that motion was passed. Mr Anderson said that at this stage he had recited the orders at least twice to the mass meeting and had outlined how serious they were and how they had to be complied with.

51 A mass meeting of all employees attending at the site commenced at approximately 8.15 am that morning. At that meeting he again outlined the background to the dispute and read the dispute orders issued by the Commission, saying to the meeting: The orders have to be complied with, the people they are directed against have to return to work.

52 A motion from the floor of the meeting was put to continue the strike in support of Mr O'Driscoll although a few members spoke against that motion. After the vote was taken he held another meeting with representatives of BHP together with Finishing Section delegates including Mr Gorgievski. No resoltuon resulted as a consequence of that meeting.

53 The dispute was then relisted before Commissioner Connor with Mr Anderson representing the AWU, Mr Wayne Phillips representing the AMWU and Mr John Thornton representing the ETU. The 5 August 2002 dispute orders were then amended to include the other unions and their members. After the amended orders were issued the union representatives returned to the site and met representatives of BHP. After some unproductive discussion the unions met amongst themselves and drafted a six point plant for settlement of the dispute and a prompt return to work. Besides addressing the O'Driscoll issues the six point plan involved a return to work as soon as possible and urgent despatch of product to occur that night. After further discussion with representatives of the BHP the matter was settled but not on all of the six points proposed by the union.

54 Mr Anderson understood that the delegates despatched the product that was urgently needed that night. He attended the meeting of employees at 7.00 am on Wednesday 7 August 2002 and put a motion to the meeting that the six point plan be agreed to. The motion was passed and there was a return to work at 7.30 am.

55 It was clear from other parts of Mr Anderson's evidence that because of the disagreement about the application of the agreement and the meaning of "stock out" it was his view that nothing much could be done to resolve that issue while the employees from the Finishing section were out on strike and had voted to continue that strike. In his view once there was a return to work the despatching of urgent product would take place. 56 Mr Branko Gorgievski was an employee of BHP and had been so employed since mid-1985. He worked in the Finishing department at the Springhill Works and had been a member of the AWU since 1971. He was a delegate for the union within the Finishing department and had been involved in the issues concerning Mr O'Driscoll and his termination. 57 Mr Gorgievski was involved in the July 2002 meeting where the employees first went on strike concerning Mr O'Driscoll and gave evidence about the strength of feeling at the meeting of employees. He also was involved in proceedings in the Commission before Deputy President Grayson and spoke of the inability to settle the issue with representatives of BHP. Lack of progress on the dispute was reported to a meeting of members on 2 August 2002 where the employees voted to go on strike again because the matter had not progressed beyond anything that had occurred at the date of Mr O'Driscoll's dismissal in mid-July 2002.

58 Mr Gorgeivski appeared in the Commission with Mr Anderson on 2 August 2002 before Commissioner Connor. The Commissioner had recommended a return to work and sought an undertaking from the AWU that it would assist in contingency arrangements over the weekend to address the urgent despatch of product to Electrolux. The proceedings in the Commission had finished at 4.30 pm and he returned to Wollongong with Mr Anderson. During the return trip Mr Anderson received a telephone call on his mobile telephone from Mr Sebbens who raised the need to have a meeting concerning the urgent despatch of product to Electrolux. There was discussion about the union representatives being able to take a copy of the paper work concerning the Electrolux product. Mr Anderson had told Mr Sebbens that having the piece of paper when he addressed the mass meeting would be helpful. Mr Sebbens said that the contents were confidential and he would have to talk to someone else about it and would call back again soon. 59 Mr Gorgievski attended the meeting of employees at 7.00 am on Monday 5August 2002 which was addressed by Mr Anderson who informed the employees about Commissioner Connor's recommendation that there be a resumption of work. Mr Gorgievski said that the feeling of employees was that the issue was bigger than just the Finishing department and could be a breach of rehabilitation policies which concerned the whole of the site. The members then voted to continue the dispute. This was followed by a further meeting with the representatives of BHP.

60 Mr Gorgievski was present at the Commission on 5 August 2002 when Commissioner Connor issued the dispute orders. Mr Anderson had told the Commissioner that he would attend a mass meeting and read out the orders that had been made that day.

61 Mr Anderson and Mr Gorgievski both addressed the mass meeting that was held at 7.00 am on 6 August 2002. Mr Anderson commenced by reading out the dispute orders but employees talked about the issue being site wide. During this discussion Mr Anderson said; These dispute orders have to be complied with, you have to return to work, these orders should be complied with, they are orders from Commissioner Connor, they are orders of the Commission, you should go back to work. Mr Gorgievski said the members at the meeting were very angry and the same treatment would happen to others if they did not take action. The rest of the site then attended a mass meeting and Mr Gorgievski addressed that meeting.

62 At the larger meeting Mr Gorgievski heard Mr Anderson tell the employees the following: Before you take another vote, just hear me again, now you're all here, you have to know that we have dispute orders requiring us to return to work. The orders have to be complied with. Mr Anderson again read the dispute orders to the mass meeting. Mr Gorgievski then asked if there were any questions and a member asked if they could get into trouble. Mr Gorgievski replied: "Yes, we can get into a lot of trouble". Nevertheless, a motion was put and agreed that an indefinite strike continue.

63 Mr Gorgievski confirmed that following the mass meeting there were further discussions with representatives of BHP and a further appearance in the Commission. On the way to the Commission he had used a mobile telephone to talk to Mr Meena to put a proposition to settle the matter. That matter was taken up with representatives of BHP at the Commission but no resolution was possible.

64 At the Commission it was ultimately agreed that Mr Phillips, Mr Thornton and Mr Anderson together with Mr Gorgievski and other delegates would return to the site and meet with BHP. When that meeting took place ultimately a seven point resolution was drafted to resolve the dispute. The meeting ended at about 8.00 pm on 6 August 2002 when the peace proposal was accepted. Mr Gorgievski with another delegate stayed to despatch the urgently needed product to Electrolux. At the meeting held at the gate at 7.00 am on Wednesday 7 August 2002 a resolution was passed accepting the seven point plan and there was a return to work.

65 Mr Wayne Phillips was an organiser with the AMWU, NSW Branch. Late in the evening of 5 August 2002, he had received a telephone call from Mr Anderson saying that there would be a mass meeting at Lysaghts the following morning to talk about a dispute and a hearing in the Commission. Mr Anderson informed him that the members were pretty angry and it looked like the members of all the steel unions were preparing to go out. Mr Anderson asked for Mr Phillips' assistance as Mr Gillespie was away and he would appreciate some help because Mr Phillips had knowledge of the Enterprise Agreement.

66 Mr Phillips attended the site at approximately 6.50 am on 6 August 2002 where a number of employees including members of his union had gathered. He was informed by Mr Anderson of the dispute orders made by Commissioner Connor and the fact that the members were angry and that he had already told them to go back to work. He said to Mr Phillips: "I just don't know whether or how it's going to go today".

67 During the meeting Mr Anderson read out the dispute orders to members at the mass meeting and said words to the effect: These are important orders, they are dispute orders from the Commission. They have to be obeyed, this means you have to return to work. Although Mr Phillips took a telephone call from an Orange delegate of the AMWU, during the meeting, he was present when Mr Anderson repeated parts of the dispute orders a number of times and reminded members that they were to be complied with and they could be in trouble if they were not abided by.

68 Mr Phillips said that there were questions asked from members attending the meeting concerning Mr O'Driscoll and whether they could be in trouble if the orders were not obeyed. Mr Anderson replied: Yes, you can get into a lot of trouble, the company can take further action against the union, its organisers and yourselves for not complying with the dispute orders.

69 Mr Phillips described the mood of the members on the floor as "very hot under the collar and hostile". A motion was moved to invite the whole of the site to the meeting and the meeting was temporarily suspended shortly after a full mass meeting was held. By this time Mr Phillips had been able to speak to a fellow organiser from Orange and explained to him the issue about the Electrolux product. He was informed that there had been discussions with the Electrolux factory manager all the previous day and no mention had been made that Electrolux was running low on stock. No mention was made about a dispute at Pt Kembla causing Electrolux any concern.

70 Mr Phillips said that he was involved on behalf of the AMWU in negotiating the Enterprise Bargaining Agreement in the Commission. One of the issues which had not been finalised by the time it was signed concerned what would occur when a "stock out" happened. During these discussions the steel unions had sought a secondary inspection of that stock to take place to confirm what BHP may say was the case when a particular purchaser ran out of stock. The general idea was that if during an industrial dispute a purchasing client's stock was so low that a stand down situation could arise then action would be implemented to ensure an urgent despatch of stock to avoid any standing down occurring.

71 Mr Phillips was sceptical about the Electrolux issue because he had heard nothing from the organiser in Orange about Electrolux's stock being low. Electrolux was the largest employer in the Orange area and standing down of employees would be a significant event.

72 Mr Phillips expressed the view that Mr Anderson had used his best endeavours to have the Finishing section employees return to work. Mr Phillips had himself informed Mr Meena that the employees were very angry about the handling of the O'Driscoll issue and issues concerning the rehabilitation of employees. In his view the mood of the Finishing section employees was so angry that he knew that something more would have to be achieved for them to change their mind about returning to work. It was for that reason that he raised welfare issues and attempted to have some sort of resolution about this issue with BHP so he could explain it to the employees.

73 In the evidence there was continual reference to the terms of the Enterprise Agreement which dealt with the concept of a "stock out". This matter had formed part of Clause 9 of the Agreement dealing with regulations of disturbances to production and supply. The immediately relevant parts of Clause 9 are: 9 . REGULATION OF DISTURBANCE TO PRODUCTION AND SUPPLY 9.1 Objects of this Clause 9.1.1. One of the key pillars that supports the ability of the Companies to have an effective and efficient business is the ongoing compliance by the parties and all employees with the obligations in this clause in respect of hot metal arrangements and meeting urgent customer needs. 9.1.2 The commitment and compliance with the obligations prescribed in this clause are significant in that they recognise the paramount importance of satisfying the Companies' customers each and every day and the close linkage between customer satisfaction, business performance and employment security. In addition they recognise the importance of protecting the security and integrity of the Companies' assets and not wastefully destroying product. 9.1.3 The parties recognise that to achieve these goals and maintain secure employment, they must manage their differences without allowing these differences to result in the destruction of product or major disruption to the Companies' customers. 9.1.4 The parties understand that only by satisfying customers and developing markets can the Companies deliver the desirable benefit of ongoing security of employment. 9.1.5 The obligations to comply with the arrangements contained in this clause in respect of hot metal and meeting urgent customer needs does not restrain, or seek to restrain, the taking of industrial action which does not result in non-compliance with those obligations. The parties are however committed to working together to provide a workplace where issues are resolved without recourse to industrial action. 9.1.6 The obligations imposed by this clause require that employees covered by this Agreement perform as directed the necessary work (for the purposes of this clause) which is part of their usual duties and are not to be taken as requiring 'staff' employees to undertake such work instead of employees covered by this Agreement. … 9.1.9 Similarly, the proposal for the meeting of urgent customer needs does not require all product to be distributed but rather only that part of it requiring urgent despatch and subject to the provision of information and appropriate consultation as specified in this clause. 9.2 Compliance with this Clause and Linkage with Employment Security 9.2.1. There must be strict compliance by all parties with the terms of this Agreement concerning hot metal arrangements (sub-clause 9.3) and meeting urgent customer needs (sub-clause 9.4) during the course of any industrial action. There must be no breaches of these provisions. 9.2.2 The taking of steps during the course of any industrial action in breach of these requirements would be a serious matter and one requiring significant and urgent attention in any dispute resolution process. Any breach would be a paramount consideration for the Commission in the exercise of its powers under the Act as to industrial disputes. 9.2.3 A breach of the provisions concerning hot metal arrangements (sub-clause 9.3) and meeting urgent customer needs (sub-clause 9.4) may result in the removal (in part or whole) of the employment security provisions specified in clause 8 of this agreement. Any such removal shall not relieve the employees concerned of their obligations to comply with the requirements of this clause 9. 9.2.4 An application to remove the benefits of security of employment from any employees may be made by the relevant Company by notification under the Act of an industrial dispute. The Companies shall bear the onus of making out a case for such removal. The determination of such an application shall be governed by the considerations referred to by the Commission in the Recommendation of Walton J - Vice President, dated 13 May 2002, particularly at paragraph 95. The Commissioner's determination shall be binding on the parties. … 9.4 Meeting Urgent Customers Needs 9.4.1 To satisfy the requirements of the customers of the Companies, the parties are committed to ensuring that the urgent needs of customers are met throughout the period of any industrial dispute. 9.4.2. In recognising that the Companies' customers are a key foundation of the Companies' business, the parties commit to the principle that all disputes and issues will be resolved in accordance with the applicable dispute resolution procedures and without recourse to industrial action that would adversely impact on those customers. 9.4.3 In the unlikely event of industrial action occurring, the parties will, before such action commences, and on an ongoing basis as necessary during such action, hold discussions in relation to production or maintenance work that is necessary to enable genuinely urgent customer requirements to be met. So far as practicable, prior to the taking of industrial action and (on all occasions) progressively, as necessary, during such action the relevant union delegate(s) and the relevant Company representatives will meet and confer immediately and on an ongoing basis to manage the supply of product to avoid stocking out of customers. 9.4.4. The Company's customer service or logistics representative will identify product that is required to maintain a customer's business and is packed and waiting despatch. 9.4.5. Where, in accordance with sub clause 9.4.6. and 9.4.7, product is identified as requiring despatch to avoid a stock out or potential stock out and that product or part of that product is packed and awaiting despatch, it will be despatched as required by the Company. 9.4.6. The company will become aware, either through its despatch management systems or by way of other direct communication with a customer that the customer is in need of urgent delivery of product to avoid a stock out. This will occur each and every day during a period of industrial action.

9.4.7 Where the Company becomes aware of a stock out for a customer, then the company will provide to the relevant union delegate a written report containing the following particulars of the stock out or potential stock out:

· the name of the customer; · the product and quantity required; · where the product is required, and · when the product is required. A copy of the written report will be faxed to the relevant union offices. 9.4.8. In the event that there is a residual amount of an order to be processed to enable despatch of it to occur and there are special or urgent considerations applying to the order, these circumstances will be raised and discussed between the relevant company representative and the relevant employee representative with a view to reaching agreement. In the absence of agreement either party may seek the assistance of the Commission by notification under s 130 of the Act. The parties agree that if the operation of this sub-clause creates substantially adverse consequences then any party may apply to the Commission after 13 November 2002 to recommend other arrangements in relation to residual amounts of orders and the parties will comply with the terms of such recommendation in lieu of the provisions of this sub-clause. … 9.4.11 In sub-clause 9.4: 'relevant union delegate' means the delegate of the employees whose industrial action is preventing or hindering the normal despatch of product. In the absence of that delegate the relevant union delegate shall be the employee who, in the ordinary course, would be regarded by the employees as acting in the place of the delegate. 'relevant company representative' means the customer service officer nominated by the company for the purpose of the arrangements in this sub-clause. 'stock out' and 'stocking out' mean a situation where the customer is unable, because of its lack of the Company product which the customer requires, to maintain its normal operations. …

74 BHP also relied on the Rules of the AWU regarding the handling of disputes in pursuing its case that the union had not taken all reasonable steps to effect a resumption of work and the despatch of urgently needed product. This submission focused on the provisions of Rule 64 which was in the following terms: RULE 64. DISPUTES (1) In the event of a dispute arising on any job or at any place of employment which cannot be settled amicably, the members involved shall by their delegate or other representative and before taking any action in furtherance of the dispute, notify the State Branch or the relevant Branchy Secretary or some full time Officer of that Branch. (2) Subject to any directions concerning the dispute given by the State Council or Branch Executive, the members involved shall comply with all directions of the Officer of the Branch or of the Union who has been notified of or who is handling the dispute. (3) The Branch Executive or the Officer of the Branch or of the Union who is handling a dispute may authorise a secret ballot of members who are involved or likely to be involved in a dispute. (4) In the event of a serious dispute arising, or being threatened, the Secretary of the Branch concerned shall communicate with the State Secretary, who shall in conjunction with the relevant Branch Secretary thereupon take such steps for the settlement of the dispute as they deem expedient. For the purpose of this Rule any dispute or threatened dispute which exposes the Union to a pecuniary penalty or to an action for damages or which is likely to involve members of another Branch shall be deemed to be a serious dispute. (5) Members ceasing work in respect to any industrial grievance without the sanction of the Branch Executive or State Council shall be liable to bear the responsibility of such action. Members ceasing work under the direction of the Branch Executive or State Council shall not return to work without the sanction of the Branch Executive or the State Council.

SUBMISSIONS 75 For the applicant it was submitted that on 6 and 7 August 2002 there were two forms of industrial action involving employees at the site. These were the two forms of action which existed at the time that the orders were made and both were explicitly referred to in the Commission's orders. The first was the strike and the second was the refusal or failure to despatch urgent product. There was a third issue also raised namely the failure to confer which was also identified by the applicant as a breach of the dispute orders.

76 It was accepted that Commissioner Connor could have made a more explicit reference to urgent despatch and indeed a more explicit reference was sought by the applicant. Nevertheless, what occurred fell within the term "industrial action" as defined in the Act.

77 In relation to the strike, the question posed by the applicant was: "Did the AWU take reasonable steps to ensure compliance with the orders?". While it was accepted that the applicant was in no position to contradict what was said about Mr Anderson's conduct at the meeting on 6 August 2002 it was asserted that BHP were entitled to point to the insufficiency of what was done at that meeting and later and up until 8.00 am on 7 August 2002. This was not a case, on the applicant's approach, where a union official pretended to seek compliance with a dispute order but where there was "a wink and a nod" to the employees that they could continue their industrial action. It was accepted that the evidence would not sustain such a submission but it was pressed that Mr Anderson could have done more under the Rules and that he should have done more and that what he did was insufficient to a degree that would ultimately not constitute compliance with the orders. It was a matter of a considering what Mr Anderson did not say that would demonstrate the breach. In this respect it was pointed out that firstly it appeared that Mr Anderson had merely recommended that the members comply with the orders. Mr Anderson had pointed to the status of the orders and their force and thereby the attention that such orders were to merit. It was said that the highest level of "personal authority" that was disclosed by the statements Mr Anderson made was to recommend to employees that they comply with the orders - everything else depended upon their status as orders of the Commission. It could be accepted that there was active encouragement to comply with the orders but saying they were orders that should be complied with merely drew attention to the force of the orders themselves and did not reflect the exercise in any personal sense or reflect the union's authority in support of the orders.

78 Mr Anderson at the time was the acting branch secretary under the Rules. Rule 64 required that members involved in a dispute should notify the relevant branch secretary or some full time officer and there was to be a consideration of the dispute. Importantly, members were required to comply with all directions of the officer of the branch who was handling the dispute. Here, there was a serious dispute and on the evidence there was no direction carrying the weight or authority which the rules contemplated might be given on such an occasion. Mr Anderson should have drawn the attention of the employees to their obligations under the rules, he should have informed the members they exposed the union as well as themselves to a penalty and he was using his personal authority to direct them to return to work which they were bound to accept. Instead, what happened was the future of the dispute was left in the hands of the members voting in a gate meeting. The fact that it was left to a vote of the members was demonstrated by the fact that a vote was taken.

79 The Commission was also entitled to consider what happened next. After the meeting rejected the orders and declined to return to work, Mr Anderson and Mr Gorgievski "returned to the fray" using the result of the meeting to bolster their subsequent approaches. They did not return and tell the applicant that they had used their best endeavours but could not persuade the meeting. Rather, the evidence suggested that they were bolstered or fortified by the result of the meeting and set about to give effect to the demands of the meeting in their further discussions with representatives of BHP. They may have accepted the reality of the vote but they did it so enthusiastically that it called their actions into question. It was to be remembered that on 6 August 2002 when the night shift began to come in, it was Mr Phillips who talked to them to see if they would return to work and there was no evidence that Mr Anderson was there or assisting in having them return to work. This was a point where there was an opportunity for something more positive to have been done to secure a return to work by people who had attended the workplace, obviously with the possibility of working that night. It was not good enough that people on the night shift could just take their own course and say they were not going to start work until there had been a meeting. At least a direction or something of that nature could have been given at least.

80 The second part of the case was said to be stronger for the applicant, namely on the AWU's own evidence, no effort was made to secure urgent despatch of product until late on 6 August 2002 and that was principally due to the efforts of Mr Phillips from the AMWU. Here, although ultimately there was despatch on 6 August 2002, it was not until approximately 8.00 pm and the orders had effect as of the previous midnight. It did not change the effect of the order that the union had made it clear at the Commission hearing that there would not be a meeting until 7.00 am the following morning. The AWU could not delay until sometime of its choosing when the orders would take effect. It was said to be also instructive that the other unions caught by the expanded orders were able to reach a settlement of the issues including urgent despatch without holding a meeting of members - the AWU was unable to do so. The contrast was striking - none of the other unions wanted to look at the paperwork or question the urgency of product for Electrolux. The work involved took 40 minutes from start to finish with two people working.

81 Neither could it be said that there was a real dispute about the meaning and application of the Enterprise Agreement. There was nothing in the Agreement that suggested that the "stock out" provision would apply only when there were threatened stand downs in a client's workforce and there was a provision that the obligations of the employees was to perform the urgent despatch work rather than permitting staff to perform that work when there was industrial disruption.

82 There was simply no effort made to secure the despatch of the product by the AWU. It is an odd proposition from the union that Mr Phillips of the AMWU could be regarded as their agent for the purposes of complying with the orders of the Commission. Mr Anderson looked to securing a resumption of work as meeting both obligations but ignored the need to take immediate steps to address the despatch of urgent product. Further, it was apparent from his affidavit evidence that he was not clear on what was the issue regarding the interpretation of the Agreement. It was noted in some of the brief discussions that Mr Gorgievski just flatly refused to address the issue of urgent despatch.

83 In relation to the failure to confer, the direction and obligation was to hold immediate discussions and that was an obligation separate from the obligation to ensure compliance with order 1. The Enterprise Agreement required discussion to take place before industrial action commenced and it was open to the Commission to conclude that the necessary discussions had not taken place particularly in light of the form of commitment given by Mr Anderson on 2 August 2002. It seemed clear that the direction to confer immediately was intended by the Commissioner to be part of the dispute order and was intended to have "compulsive force". No issue was ever raised before the Commissioner or by way of appeal challenging the jurisdiction to make this order. In any event, it fell within the definition of "industrial action" - it was a ban, limitation or restriction affecting the performance of work or the offering or acceptance of work that was adopted in connection with an industrial dispute. It could also have been a practice relating to the performance of work adopted in connection with an industrial dispute that restricts, limits or delays the performance of work. It may not have been a ban within its own right but it was a practice or limitation or a restriction.

84 There was a failure to confer which continued until Mr Phillips' intervention on the evening of 6 August 2002. The meetings at 9.00 am and 10.30 am on 6 August 2002 did not satisfy the requirements of the order because they were not immediate and they did not have the required quality of achieving the objective of the clause of the Enterprise Agreement about securing urgent despatch. In essence, discussions were not immediate and those that took place prior to the evening of 6 August 2002 were not directed at the operation of the Enterprise Agreement and the obligations under it to secure urgent despatch of product.

85 The AWU immediately drew attention to the limited jurisdiction conferred on the Commission in making dispute orders. This was said to be demonstrated by a judgment of the Full Bench in The Transport Workers Union v Chubb Security Services [2001] NSWIRComm 248 delivered ex tempore on 30 October 2001. In that case the union, its officers, employees, members and agents were ordered to refrain from imposing any bans, limitations or restrictions on the performance of work at or in relation to the premises of Chubb Security Services Ltd at nominated premises. A second order was in the following terms: The TWU and its officers, employees and agents, shall take all necessary steps to ensure the continuation of work by their members employed at or in relation to the premises of Chubb in accordance with their contracts of employment and the lawful instructions of Chubb. It was submitted by the employer that order 2 was an order of the kind contemplated by the opening words of s 137 and it was in any event an order made ancillary to/and or in aid of order 1.

86 The Full Bench dealt with the argument as follows: [10] We do not consider there was power to make order no 2, nor could it be justified as being an order of a kind specified in the grant of power provided by paragraph [a]. Further, the order, when construed, could not be said to be an order ancillary to or in aid of order 1, particularly having regard to the fact that order 1 was an order to refrain from taking industrial action. Accordingly, there was no power to make the order and it should be set aside.

87 The Full Bench also emphasised that it was essential that orders made under s 137 be made in clear terms and in terms readily understood and capable of being obeyed by those against whom they were made. Order 2 in the TWU case could not be so described. 88 In the present case the requirement to hold discussions could not allow the Commission, in breach proceedings, to imply terms into the dispute orders as to the purpose or result of those discussions. Dispute orders were not lightly made and severe penalties were available for their breach. A party could not be possibly left open to a breach of an implied term being a term which was not expressly stated in the order itself. The requirement to have discussions about the urgent despatch of stock could not be construed as an implication that those discussions were to reach an accepted outcome or result in the urgent despatch of stock to Electrolux. The lack of clarity was also demonstrated by the fact that while it might be expected that such discussions were to take place immediately so as to provide urgently needed product, the order itself did not come into effect until the following day.

89 It was also clarified for the AWU that it did not suggest that there was a lack of jurisdiction to make the direction ordering immediate discussions but it was simply not a direction that could be made the subject of a dispute order under s 137. It was also submitted that on the approach of BHP the refusal to engage in discussions amounted to industrial action as that term was defined in the dictionary to the Act. If that submission was correct, then the requirement was superfluous because the obligation, if it existed, was meant to be the subject of an order covered by paragraph 1 and if covered by paragraph 1 there was no need for a further statement.

90 In relation to the dictionary definition of "industrial action" in the Act, paragraphs (a) and (b) dealt with industrial action by employees of a relevant employer. It was drafted in such a way that it could not extend to conduct by a union official with respect to employees. Even assuming that there was a ban or restriction or a practice with respect to discussions, to be a valid dispute order it needed to be directed at the employees but this order in paragraph 2 was directed at the union and its officials. That was not a dispute order within the meaning of s 137(1)(a).

91 There was no evidence and nothing in the particulars supporting the summons to suggest that there was industrial action in the form of a practice or limitation to refuse to engage in discussions. Secondly, in relation to the definition relied upon in paragraphs (a) and (b) there needed to be a necessary connection with the performance of work. Even if there could be shown to be a refusal to engage in discussion it was not demonstrated to have the necessary connection with the performance of work so as to bring it within the definition of industrial action. In this case there was discussion about the issue of urgent despatch and that took place on Friday 2, Monday 5 and Tuesday 6 August 2002. In this context it had to be remembered that the order asked for by BHP required employees to be available for the despatch of emergency product and that order was not granted.

92 It was artificial to approach the orders in the way approached by BHP by dividing industrial action into two parts - the strike per se and the alleged refusal to deliver the urgent stock to Electrolux. The approach lacked any practical consequences because the evidence showed that on 6 August 2002 there were steps taken by the union to encourage a return to work. If that encouragement had been taken up then the urgent deliveries would have been attended to. Mr Anderson's conduct at the meeting which occurred at 7.00 am on 6 August 2002 and his conduct after was an answer to both parts of the case pursued by BHP. It was emphasised that some of the evidence touched on what had occurred on 5 August 2002 but that conduct could not constitute a breach of the orders: the summons alleged a contravention on 6 and 7 August 2002.

93 It was also said to be relevant that after the short exchange which took place and after the orders were handed down, that BHP arranged for a meeting to take place at 9.00 am on 6 August 2002. It therefore appeared from BHP's point of view that discussions about the despatch of urgent stock was appropriately dealt with by way of a meeting to be held at that time the following morning and a meeting did take place at about that time or shortly thereafter.

94 In relation to the meeting held at 7.00 am it was absolutely clear on the evidence that Mr Anderson expressed himself in the very strongest terms and in emphatic terms and in no uncertain terms told the employees they hade to go back to work. What he did could be fairly characterised as a direction to comply with the Commission's orders to return to work.

95 Once the meeting decided to continue industrial action, BHP suggested that Mr Anderson and the AWU should have thereupon distanced themselves from the matter rather than continuing to be involved in negotiations to settle the underlying dispute. That would have been a quite irresponsible act on behalf of the AWU and Mr Anderson. Mr Anderson recognised the reality of what had occurred and notwithstanding his best efforts, the employees were refusing to go back to work. He then chose the best alternative path and that was to attempt to achieve a resolution of the dispute and also compliance with the orders. That is what occurred at the 9.30 am meeting on 6 August 2002 where the underlying issue of the treatment of Mr O'Driscoll was raised.

96 The issue of urgent despatch was more directly raised at the 10.30 am meeting on 6 August 2002 but that meeting had to be considered in the context of the gate meeting of employees, their rejection of the return to work orders and the union's attempt to resolve the underlying dispute as a means of obtaining compliance with the orders. In that sense discussion about the despatch of stock occurred as soon as practically possible after the meetings designed to affect an overall resolution of the dispute. It was unfair to suggest that Mr Anderson's efforts were not "immediate" in holding such discussions when he was involved in a meeting of employees in which he was trying to persuade them to return to work and that a general discussion had been scheduled a little later in the morning with BHP. The other factor was that there was a genuine dispute as to whether or not there was a "stock out" at Electrolux and BHP had failed to take the simple step of substantiating their contention that Electrolux was short of its necessary product.

97 The requirement of the order was to actually hold a discussion not merely to be invited to a discussion. That order was impossible to comply with without the availability of BHP. In simple terms, BHP had to attend the meeting and it had earlier indicated that such a meeting would take place at 9.00 am on 6 August 2002, not even at 7.00 am being a time when they knew the men were meeting at the gate.

98 It was accepted that Mr Phillips of the AMWU played an important role, especially in the afternoon meeting, in achieving a resolution to the dispute. Before members of the AWMU had been involved in the dispute, Mr Anderson on his own initiative, had asked Mr Phillips to become involved because of his greater knowledge of the negotiations leading to the agreement. Mr Anderson accepted that he was somewhat inexperienced and had not dealt with a situation where dispute orders had been issued and wisely sought the assistance of an experienced unionist in the person of Mr Phillips. The evidence showed that the AWU was prepared to allow Mr Phillips to lead the discussion and to speak for all the unions in an attempt to progress the resolution of the dispute. That was not a point for which the AWU should be criticised because it was clearly taking steps to facilitate a resolution of the dispute and also to facilitate compliance with the order.

99 In relation to the night shift people, the evidence demonstrated that Mr Gorgievski spoke to the employees who attended and directed their attention to the orders but was unsuccessful in obtaining their return to work. Importantly, immediately after this discussion it was the AWU delegates who undertook the urgent despatch work and on the following morning there was a full return to work after a gate meeting.

100 Looking at the totality of activities over 6 and 7 August 2002, it was a reasonable categorisation that the AWU was involved in continuing attempts through Mr Anderson and with the assistance of Mr Phillips to achieve compliance with the orders. This was not initially achieved at the 7.00 am meeting on 6 August 2002 but that was followed by meetings with the employers at 9.30 am in an attempt to resolve the underlying issue, a further report back to the employees who were not allowed to leave the site and a further urgent meeting at 10.30 am with the employers which dealt with the issue of urgent despatch of product. That was followed by attendance at the Commission and the afternoon meeting resolving the dispute. After that meeting it was the AWU delegates, forming a skeleton crew, who performed the despatch work and at the gate meeting on the following morning a full return to work was achieved. This was a history of continuous effort to resolve the dispute, to achieve a return to work and to achieve compliance with the orders.

DELIBERATION 101 It is firstly necessary to give some consideration to the scope of orders permitted by s 137 of the Act. Section 137 is headed "Kinds of dispute orders" and in sub-section 1 provides as follows: 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 their 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.

102 It has been suggested that the words "the following kinds of dispute orders" are not limited to the four orders specified in (a) - (d) but rather permits the Commission to make orders of that class having similar characteristics. Thus, it is suggested that orders, wider in nature than those specified in (a) - (d) may be made by the Commission. The word "kind" is also used in s 136(1)(d) where the Commission may, in arbitration proceedings, do one of a number of things including "make any other kind of order it is authorised to make (including an order made on an interim basis)".

103 The Macquarie Dictionary (3rd ed) defines the word "kind" in the following way: 1. A class or group of individuals of the same nature or character, especially a natural group of animals or plants. 2. Nature or character as determining likeness or differences between things. 3. A person or thing as being of a particular character or class.

104 The use of the word "kind" is somewhat confusing in these provisions. Bearing in mind the serious consequences which might flow from a breach of a dispute order and the requirement of s 138 specifying those against whom a dispute order can be made and requiring the dispute order to clearly identify the persons against whom the order is made and who is bound by the order and to state the time within which the order is to be complied with or state a period during which it remains in force, suggests a regime of some more particularity than contemplated by the use of word "kind". It seems to me that in s 136(1)(d) the power of the Commission to make "any other kind of order it is authorised to make" is a reference to any other type of order: here the word "type" and the word "kind" would grammatically be interchangeable and would also be logical. It might also be appropriate to substitute the word "class" or "category" but just as easily the words "kind of" could be eliminated from the sub-section without detracting from its meaning at all. Coming to s 137, the heading could just as easily be "types" or "categories" of dispute orders without detracting from the provision. Similarly, the Commission is empowered to make "the following" category or types of dispute orders and their terms seem to be interchangeable without detracting from the meaning but as with s 136(1)(d), the words "kinds of" can be deleted without impairing the meaning of the provisions. (see also CPSU v Australian Prudential Regulation Authority (1999) 95 IR 324 at [42] et seq, where "kind' and "type" are used in a different statutory setting). 105 The question then arises whether the words "kind of" in s 137 are mere surplusage or are meant to have a real role to play by expanding the dispute orders which may be made by the Commission. It seems an unlikely way to expand the orders which may be made to use this type of ambiguous language in a scheme of some particularity where serious consequences may flow from a breach of such orders. It is upon this basis that I am inclined to the view that the words "kinds of" are mere surplusage and do not expand the four categories of dispute orders which may be made by the Commission. Each order available under s 137(1) is a "kind" or "type" of dispute order, but each order addresses a different matter although they are all of a class of conduct occurring in times of industrial disputation. It may well be that the words have a role where an order does not, for example, use the words "cease" or "refrain" from taking industrial action but where the order is of that type and has that effect.

106 Approaching the dispute orders issued by Commissioner Connor in this matter it would appear that order 1, requiring members of the AWU employed at the Finishing section to cease and refrain from taking any further industrial action and requiring them to work in accordance with normal work requirements and their contracts of employment would be a dispute order within the terms of s 137(1)(a) of the Act. The order addresses the existing industrial action and any possible further industrial action. The requirement to work in accordance with normal work requirements and the contract of employment might not add a great deal to a "cease and refrain" order but is referrable to the type of order that may be made under s 137(1)(a) of the Act. This part of the order was not attacked for vagueness or uncertainty and therefore appears to be understandable to those to whom it was addressed.

107 The AWU has attacked the second order as one not capable of being made under s 137 as a dispute order. That submission was clarified as not being a challenge to the jurisdiction of the Commission to make such an order: it was conceded that an order of this type, in both its aspects, could validly be made under s 136 of the Act. The important point was that such an order could not be made under s 137 and proceedings for a contravention of that order could not be maintained under s 139 of the Act. Support for that proposition seems to be obtained from the decision of the Full Bench in the Transport Workers' Union case. In that case the following order was found to be beyond power when purportedly made under s 137(1)(a): The TWU and its officers, employees or agents shall take all necessary steps to ensure the continuation of work by their members employed at or in relation to the premises of Chubb in accordance with their contracts of employment and the lawful instructions of Chubb. The Full Bench said that the order could also not be supported as an order ancillary or in aid of an order that the TWU, its officers, employees, members and agents refrain from imposing any bans, limitations or restrictions on the performance of work in relation to nominated premises of Chubb Security Services Ltd. This order was also said to offend against the requirement that such orders be in clear terms readily understood and capable of being obeyed by those against whom they were made.

108 It appears from these ex tempore reasons that the Full Bench regarded the first order as coming within the terms of s 137(1)(a) and that, although that kind of order could be made, there was no room to make an order requiring all necessary steps to be taken to ensure the continuation of work. That was not an order contemplated by s 137(1)(a) or by the other three types of orders contemplated by sub-section (1)(b)(c) and (d). There seems very little difference between the order in the TWU case (which was made in the context of a refraining order under s 137(1)(a)) and the cease and refrain order made in this BHP case, with the second order requiring all reasonable steps to be taken to ensure compliance with the cease and refrain order. Further, the direction to hold immediate discussions with BHP with respect to the despatch of stock could not be an order made under s 137 based on the approach in the TWU case.

109 Further support for this approach to s 137 is given by orders made by Hungerford J in Public Employment Office v NSW Fire Brigades Employees Union (unreported, 1 December 1999, IRC 6599 of 1999). In that case, his Honour made two orders under s 137 of the Act directing the union to cease all industrial action "by no later than 8.00 am on Thursday, 2 December 1999" and further directing that the union and its members refrain from taking industrial action "during the period from 8.00 am on Thursday, 2 December 1999 to 8.00 am on Friday, 31 March 2000". His Honour then issued directions under s 136(1) of the Act in the following terms: Pursuant to s 136(1) of the Industrial Relations Act 1996 I make the following directions: The New South Wales Fire Brigade Employees Union (the "FBEU") and its officers are hereby directed to take all reasonable steps to ensure that the employees and the members of the FBEU comply with orders 1 and 2. A similar approach was adopted by Schmidt J in City of Botany Bay v Federated Municipal and Shire Council Employees' Union of Aust., NSW Division (24 February 2000, IRC 638 of 2000).

110 The approach in each of these cases recognises the limitations of s 137. The orders support the dispute orders by specific directions made under s 136. It is also important to note that the orders of Hungerford J in the Fire Brigade's case specified a time on a particular day when the order was to become effective and specified a time on another particular day when the order was to cease being effective. That precision is lacking in the present orders, but having regard to the Commissioner's knowledge of the logistics as described in conference by Mr Anderson, this may have been a deliberate choice allowing some flexibility in obtaining compliance with the orders.

111 It is clear by reference to the proceedings before the Commissioner that the only orders sought were dispute orders under s 137 of the Act. In view of the approach I adopt to the operation of s 137, order 2 made by the Commissioner was not one available to be made as a dispute order under s 137 of the Act. I accept the concession made by the AWU that order 2 could have been made under s 136 of the Act in a similar way to the orders made by Hungerford J in the Fire Brigade Employees' case, but that step was not requested by BHP nor taken by the Commissioner. Importantly, proceedings cannot be commenced under s 139, treating order 2 as a dispute order which had been breached.

112 Having heard full argument on the issues, it is appropriate that I also deal with BHP's contention that there were breaches of the dispute order by the AWU if all the orders were supportable under s 137 of the Act and in particular order 2.

113 The first breach alleged by BHP was that Mr Anderson, as acting branch secretary, did not take all reasonable steps to ensure compliance with order 1 requiring employees at the Finishing section to cease and refrain from taking further industrial action. There is not challenge to the validity of order 1. A disturbing feature of this alleged breach is that it became obvious during the address of senior counsel for BHP that breach action was commenced although the applicant had no evidence of what AWU officials, including Mr Anderson, had done or had omitted doing in obtaining compliance with the cease and refrain order. It was frankly conceded on several occasions by senior counsel for BHP that it could not, and was in no position to, call into question the evidence given by those attending the meeting and what was said by Mr Anderson himself about his encouragement to employees to obey Commissioner Connor's orders. Once the AWU went into evidence on this issue, the best case that could be mounted by BHP was to challenge the adequacy of the steps taken by the union to obtain compliance with the orders. It is not surprising that senior counsel effectively conceded that there were stronger arguments in relation to other aspects of the conduct of the AWU but that concession simply highlighted that BHP was in no position to allege this particular breach and had commenced this part of the proceedings apparently in the hope that some useful evidence might be forthcoming from the AWU. That approach is not justified by the terms of s 137: if BHP was not in possession of evidence which justified commencing proceedings for an alleged breach of the orders on this basis, then it should not have commenced the action.

114 Having regard to the state of knowledge of BHP when it commenced these proceedings, it is not surprising that the evidentiary basis for the attack calling into question Mr Anderson's conduct was flimsy at best. Senior counsel was left in the position of arguing that a particular set of words reflecting Mr Anderson's authority under the registered rules of the AWU to make a direction to its members engaged in a dispute, were required in order to discharge his obligation to take all reasonable steps to ensure compliance with the order. There was an air of unreality about this submission which failed to take into account Mr Anderson's relative inexperience as an organiser, his acting role in the absence of the branch secretary, the fact that he had not previously been involved in a dispute where dispute orders were issued by the Commission, his unfamiliarity with the background to and the terms of the recently made Enterprise Agreement and the feeling surrounding the treatment of Mr O'Driscoll which appears to have become something of a cause celebre amongst the members. Further, the term "reasonable steps" is too vague and imprecise - if particular steps were required to be taken by the AWU they should have been specified in the order, especially having regard to the consequences which may flow from a breach of such an order.

115 The evidence concerning what was said at the meeting by Mr Anderson has already been set out and does not need to be repeated. It is significant that Mr Phillips, who appears to be treated by BHP as something of a honest broker in this dispute, stated in his affidavit that in his view Mr Anderson used his best endeavours to have the Finishing section employees return to work. He was not cross-examined on this matter. Indeed, he was not cross-examined at all. Mr Phillips' affidavit confirmed: Mr Anderson had sought his help in dealing with the mass meeting, especially because of his knowledge of the Enterprise Agreement; the strident tone of the meeting held on 6 August 2002; the fact that Mr Anderson urged a return to work and compliance with the orders of Commissioner Connor; that Mr Anderson had read the orders twice to the 7.00 am meeting; that the members were not permitted to go home at the end of the meeting but were kept waiting for a report back as the unions tried to resolve all the issues in further discussions with representatives of BHP. He recalled Mr Anderson saying that not only disobedience of the orders could land the members and the union if a lot of trouble but that the orders had to be obeyed and that meant the members had to return to work.

116 It may well have been that Mr Anderson was somewhat tentative in dealing with these employees who were not part of his normal organising area and he may not have felt comfortable in using the words of rule 64 in seeking to persuade the men, in their difficult mood, to return to work. It was accepted on behalf of BHP that there was no suggestion that Mr Anderson paid mere lip service to the order, yet encouraged a continuation of the industrial action. The underlying issue was clearly the treatment of Mr O'Driscoll and the members appeared to have formed the view that a bad precedent had been created by BHP and an issue of general industrial importance had arisen. In addressing this group of employees, the tone of his address and the words he used had to be left to the good judgment of Mr Anderson, accepting, as does BHP, that he was encouraging a return to work. To require a formulistic approach to the terms to be used at a volatile stop work meeting in order to secure a return to work is not only naïve but very well may not achieve the type of response to the orders that BHP desired in this dispute. This aspect of BHP's case is rejected.

117 BHP has categorised the second way in which the order was breached as being a failure or refusal to despatch urgent product to Electrolux. I should observe at this point that Mr Phillips gave some background to the terms of the Enterprise Agreement and the fact that there was still an issue about how the "stock out" clause should operate. There is no reason to think that there was a lack of genuineness about this issue and it was one with which Mr Anderson had no familiarity.

118 It was also accepted by BHP that Commissioner Connor declined to make a direction that delivery of urgent product take place and instead inserted a requirement that there should be immediate discussions with respect to the despatch of stock to Electrolux. There is no doubt that the Commissioner was attempting to progress that part of the dispute but he was doing so in circumstances where there was a significant issue about the way in which the "stock out" clause operated. While he was, undoubtedly, trying to achieve an urgent despatch of stock to Electrolux his order, in terms, did not impose that obligation upon the AWU - the focus was on a return to work. The despatch of product might also have been achieved by the members returning to work after their gate meeting at 7.00 am on 6 August 2002. There is force in the union's submission that BHP nominated 9.00 am on 6 August 2002 as the time at which the parties were to meet and this appears, at least in part, to be a time chosen by BHP in realisation that the gate meeting may have already achieved a return to work.

119 It is also to be remembered that representatives of BHP left the Commission after the orders were made knowing that nothing would happen in relation to the strike or the urgent despatch of product until the men had met at 7.00 am the following morning. If BHP wanted a return to work at an earlier time and/or the despatch of product at a time earlier than 7.00 am or 9.00 am the following morning, then it should either have asked for a specific time for compliance with the order or returned to the Commission on learning that the next step would be a 7.00 am meeting on 6 August 2002 and seek to amend the orders requiring, at least, urgent despatch that night. In industrial disputes, it is well understood that parties may not necessarily press the full extent of their rights because of a desire not to further inflame a difficult position. Whether this influenced BHP's thinking on the afternoon of 5 August 2002 is unknown but it is an experienced industrial player and it had available to it a wide range of options on the afternoon of 5 August 2002: if it wanted a return to work at a specific time and/or despatch of urgently required product by a specific time it could have sought such an order.

120 Further, I am unable to construe order 2 requiring the parties to hold immediate discussions with respect to despatch of stock to Electrolux to mean that there was an obligation for the urgent despatch of stock to Elextrolux to actually take place. The order is further complicated by the fact that it was not to come into effect until Tuesday, 6 August 2002 and remained in force until Tuesday, 17 September 2002 unless varied or rescinded. In fact, the despatch of stock for Electrolux did take place on 6 August 2002 because of the action of the AWU delegates. No one contemplated that the despatch would take place at 12 midnight, 6 August 2002 and the form of the orders allowed substantial compliance, if not strict compliance, by the fact of despatch taking place on the day the order took effect.

121 In relation to the requirement that there should be immediate discussions with respect to the despatch of stock for Electrolux, in terms that was not an order that could be complied with by the AWU acting alone: it required the co-operation of BHP. There is no doubt that BHP wanted the stock moved. It wished to talk about that subject matter immediately after the hearing in which the dispute orders were made. Mr Anderson concentrated upon resolving the whole issue by having a return to work utilising the meeting which had already been set down for 7.00 am on 6 August 2002. This position was disclosed to Commissioner Connor. BHP acknowledged the realities of the situation by then arranging for a meeting to take place at 9.00 am on 6 August 2002. The evidence of BHP representatives on this matter was frank - if the meeting had taken place and despatch occurred then or a full return to work had occurred then - that was sufficient compliance to satisfy BHP. It is likely that the only discussion of any substance on the question of despatch took place at about 10.30 am and was resolved later in the day at the meeting which began at 4.30 pm. The best that BHP might hope to establish from this evidence is a failure to meet concerning despatch of stock at 9.00 am on 6 August 2002. Bearing in mind what actually happened on that day and the nature of the orders made, if this conduct constituted a breach of order 2, then pursuant to s 139(3)(a) I would dismiss the matter on the basis that the circumstances were such that the Commission should take no action on the contravention.

122 The conclusions that I have reached in relation to this application are not be taken as condonation of a breach of dispute orders made by the Commission. The result in this case flows from the failure of BHP to apply for a clear order with a specific time for the order to come into effect and the failure to appreciate the different orders that might be made pursuant to s 137 and ancillary orders that might be made under s 136 as done in the Fire Brigade case. The provisions of s 137 set up a particular regime which underlines the obligation of industrial parties to comply with orders of the Commission. That remains the obligation of the parties and in this particular case, apart from the terms of the orders themselves, the AWU could have done more to address the issue of urgent despatch even though the orders made by Commissioner Connor required them to do no more than to hold immediate discussions on the issue. By focusing on the wider issue the AWU overlooked the terms of the Enterprise Agreement which had only recently been entered and which clearly emphasised the need to ensure delivery of urgently needed product. There may have been, and on Mr Phillips uncontradicted evidence, there were real doubts as to the genuineness of Electrolux's needs but nevertheless they should have been the subject of earlier discussion with BHP.

123 On the view I have formed relating to the operation of s 137, I would dismiss the application. If order 2 was an order capable of being made under s 137, then, for the reasons I have given, the application would nevertheless be dismissed. oo00oo

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