BHP Steel (AIS) Pty Ltd v Construction, Forestry, Mining & Energy Union

Federal Court of Australia|2000-11-21|Before: Adam P, Beaumont J

INTRODUCTION 1 By its statement of claim, BHP Steel (AIS) Pty Limited ("BHP") has made the following claims against the Construction, Forestry, Mining and Energy Union ("the Union"), a registered organisation under the Workplace Relations Act 1996 (Cth) ("the Act"), in these proceedings under s 178 of the Act for the imposition of penalties for alleged breaches of an order made by the Australian Industrial Relations Commission ("the Commission") under s 127 of the Act: · BHP is the operator of, and the employer of the workforce at, several coal mines including the Tower Colliery ("the Mine"). (This is common ground.) · BHP employs members of the Union at the Mine ("the Employees") pursuant to the terms of awards and certified agreements of the Commission as production and maintenance workers. (This is common ground.) · On 2 December 1999, the Commission (Commissioner Harrison) made an order ("the Order") pursuant to s 127 of the Act. (By s 127 the Commission may, by order, give direction that industrial action stop or not occur. It is common ground that the Commission purported to make the Order. However, the Union claims that the Order was not valid.) · The Employees were bound by the Order. · The Employees the subject of the Order were members of the Tower Lodge of the Union at the Mine; as such members of the South Western District Branch and the Mining & Energy Division of the Union; and bound by the registered rules of the Union, including the National Rules, the Mining & Energy Division Rules and the South Western District Branch Rules (collectively "the Rules"). (This is common ground.) · The Rules provide, inter alia, that: (a) Each Lodge in the South Western District shall be managed by a Committee consisting of a President, Secretary, Treasurer and three other members - Rule 11(iii)(a) of the rules of the South Western District Branch of the respondent ("the Branch Rules"); (b) Before a stoppage of work takes place at any mine, the Committee of the Lodge must fully investigate the cause of the dispute and endeavour to effect a settlement - Rule 11(ix)(a) of the Branch Rules; (c) Failing settlement of a dispute by the Committee of the Lodge, the matter is to be referred to the District Executive of the South Western District Branch of the respondent ("the Branch") who are to inquire into the matter and endeavour to settle the dispute - Rule 11(ix)(a) of the Branch Rules; (d) No Lodge or members of a Lodge shall cease work without the sanction of the District Branch Executive of the Branch - Rule 11(ix)(b); (e) The President of a Lodge in conjunction with the Secretary and Treasurer shall ensure that the Rules of the Mining and Energy Division of the respondent ("the Division") and the District Branch rules and the Lodge rules are carried out - Rule 11(iv) of the Branch Rules; (f) The Secretary of a Lodge shall, in conjunction with the President and the Treasurer, ensure that the Rules of the Division, the District Branch and the Lodge are carried out - Rule 11(v) of the Branch Rules; (g) The Board of Management of the Branch can make, impose, order and enforce any levies, fines, fees or subscriptions on all members of the Branch not in conflict with the Rules of the District Branch or the Rules of the Division for any one or more of the objects set out in Rule 3 of the Branch Rules - Rule 7(v)(c) of the Branch Rules; (h) The Board of Management of the Branch can inflict any fine on any Lodge or member, such fine not to exceed $1,000 on any Lodge or $100 on any member - Rule 7(v)(h) of the Branch Rules; (i) The District Branch Executive of the Branch is empowered to suspend any member of the Executive or the Board of Management of the Branch or representatives of the District Branch on any Board or Body for any breach or infringement of the Rules of the Division or the District Branch including for disobedience of any request or order contained in any resolution of the Central Council of the Division or the Board of Management of the Branch and to inflict any fine not exceeding $100 and to demand and collect fines payable by all members - Rule 8(iv)(a) and (d) of the Branch Rules; (j) The District Branch Secretary and President shall, as far as possible, observe that the Rules are carried out by the Branch Lodges - Rule 8(ii)(a) and (e) of the Branch Rules; (k) The District Branch Secretary has power to call special meetings of the Board of Management in cases of emergency - Rule 8(ii)(e) of the Branch Rules; (l) The Central Council is the Committee of Management of the Division. The Central Council has power to do any or all other acts or things which it decides are proper for the achievement of the objects established in Rule 4 of the Division Rules - Rule 8(ii)(a) and (vi)(n) of the Division Rules; (m) The Committee of Management of the Division can impose any fine on any District Branch, Lodge or member of the Division for a breach of the Division Rules - Rule 8(vi)(i) of the Division Rules; (n) Executive Officers of the Division also have power to carry out the objects of the Division and ensure as far as possible that the Rules are carried out - Rule 10(ii) of the Division Rules; (o) The objects of the Division include: (i) to uphold the Rules of the Division; and (ii) to prevent by conference or otherwise needless cessation of work - Rule 4(c) and (d) of the Division Rules; (p) The General President (and other Executive Officers) of the Division shall as far as possible ensure that the Rules care carried out - Rule 10(ii) of the Division Rules; (q) The National Conference has power to impose penalties, suspend or expel members for knowingly refusing to comply with the rules of the Union - Rule 13(x)(c) of the National Rules; (r) The National Committee and National Executive control the business and affairs of the Union while the National Executive or National Conference is not in session. The National Executive Committee and National Executive have care, control, superintendence, management and administration in all respects of the affairs and business of the Union - Rules 14(ii) and 15(iv) of the National Rules; (s) The National Executive has power to impose penalties, suspend or expel members for knowingly refusing to comply with the Rules - Rule 15(iii)(h) of the National Rules; (t) The President or Secretary of the Mining and Energy Division of the respondent has power to do all things in connection with any dispute however made and by whomsoever made and may delegate such functions either generally or specifically - Rule 31(e) and (f) of the National Rules. · The Order was served on the Union on Thursday 2 December 1999 as follows: (a) At about 11.50 a.m. on 2 December 1999, Commissioner Harrison's associate provided copies of the Order to Howard Fisher, District Officer of the Union (who had appeared for the Union in the proceedings); (b) At about 1.00 p.m. on 2 December 1999, BHP's solicitors (Blake Dawson Waldron) served a copy of the Order at the National Office of the Union. (c) At about 12.51 p.m. on 2 December 1999, Blake Dawson Waldron transmitted a facsimile copy of the Order to (i) the Southern District Office of the Union; and (ii) the Federal Secretary of the Union. · In breach of the provisions of the Order, the Union did not supply each of the Employees with a copy of the Order. · Pursuant to the provisions of the Order, BHP required that the Employees the subject of the Order be at work and make themselves available for work and perform work at the Mine on 2 December 1999. · (In breach of the Order) the Employees did not immediately cease and refrain from engaging in industrial action and did not make themselves available for work and perform work as BHP reasonably required, that is to say, the Employees who had been rostered for day shift and afternoon shift on 2 December 1999 did not attend or return to work and complete or perform their shifts as required. · In breach of the Order) the Union failed to take any or all steps necessary and available to it under the Rules to ensure that the Employees complied with the Order in that: (a) The Union issued instructions to the Employees that they should not return to work until 11.00 p.m. on 2 December 1999; or (alternatively) (b) The Union failed to take all or any of the steps and/or exercise all or any of the powers available to it under the Rules. 2 In addition to BHP's claims in respect of events said to have occurred in December 1999, BHP made several other claims in respect of events said to have occurred in January 2000 in further alleged breach of the Order as follows: · On 20 January 2000, the Employees the subject of the Order were required to be at work, and to make themselves available for and perform work, on day, afternoon and night shifts at the Mine. · The Employees the subject of the Order engaged in industrial action in the form of a strike, and did not make themselves available for work as required by BHP for each of those shifts. (This is common ground.) · The Union instigated and/or directed and/or procured the Employees the subject of the Order to go out on strike in that - (a) On 20 January 2000, a twenty-four hour national stoppage took place affecting BHP mines, including the Mine; and (b) The stoppage was instigated, directed or procured at the direction of the Union at a national level. · Further, the Union failed to take any or all steps necessary and available to it under the Rules to ensure that the Employees the subject of the Order complied with the Order in that: (a) The Union took no steps to ensure that the Employees the subject of the Order complied with the Order; or (alternatively) (b) The Union failed to take all or any of the steps and/or exercise all or any of the powers available to it under the Rules. 3 By its amended application, BHP claims the following relief: (1) An order under s 178 of the Act for the imposition of a penalty on the Union for its alleged failure to supply a copy of the Order to the Employees as required by par 5 of the Order. (The terms of par 5, providing for "Service of Order", appear below.) (Section 178 provides for the imposition and recovery of penalties and confers that jurisdiction upon this Court.) (2) An order under s 178 for the imposition of a penalty on the Union for breach of par 3 of the Order on 2 December 1999. (The terms of par 3, providing for "Industrial Action to Stop", appear below.) (3) An order under s 178 for the imposition of a penalty on the Union for breach of par 3 on 20 January 2000.

THE PROVISIONS OF S 127 OF THE ACT 4 Relevantly, s 127 provides as follows: · If it appears to the Commission that "industrial action" (see below) is happening, or is threatened, impending or probable, in relation to, inter alia, work that is regulated by an award or a certified agreement, the Commission may, by order, give directions that the "industrial action" stop or not occur (s 127(1)). ("Industrial action" is the subject of a lengthy definition in s 4(1) of the Act. It includes (inter alia) (a) the performance of work in a manner different from that in which it is customarily performed, the result of which is a restriction or limitation on, or a delay in, the performance of the work where (inter alia) the terms and conditions of the work are prescribed by an award of the Commission, or by a certified agreement; or (b) a ban, limitation or restriction on the performance of work in accordance with the terms and conditions prescribed by an award or certified agreement; or (c) a ban, limitation or restriction on the performance of work that is adopted in connection with an industrial dispute; or (d) a failure or refusal by persons to attend for work if (inter alia) the failure or refusal is in connection with an industrial dispute.) · The Commission may make such an order of its own motion, or on the application of (inter alia) (a) a party to the industrial dispute (if any); or (b) a person who is directly affected, or who is likely to be directly affected, by the industrial action (s 127(2)). · The Commission must hear and determine an application under s 127 as quickly as practicable (s 127(3)). · A person or organisation to whom an order under s 127(1) is expressed to apply, must comply with the order (s 127(5)).

THE PROCEEDINGS IN THE COMMISSION 5 By its application to the Commission under s 127 dated 1 December 1999, BHP sought (inter alia) the following orders: that the Employees "must cease all industrial action as defined by the Act immediately and resume normal work without any strike, ban or limitation of any kind"; that the Union "must not impose any restriction or impediment on the Employee attending for and performing work normally …"; and that the Union "must take all steps necessary and available under the rules of the [Union] to ensure that the Employees comply with [the] Order". 6 The grounds of BHP's application were (relevantly): "1. A dispute exists between [BHP] and the [Union] in relation to the introduction by [BHP] of a bonus scheme commensurate with the ability of the business to pay, [which scheme] was rejected by the workforce. 2. The employees took strike action from 11.00 p.m. on 30 November 1999 for a period of 48 hours in support of their claim …." 7 The application came before Commissioner Harrison on Thursday, 2 December 1999 at 10.10 a.m. Mr T Davies appeared for BHP and Mr Fisher appeared for the Union. Mr Davies repeated the claims made by BHP in its application, that is to say, that members of the Union commenced strike action at about 11.00 p.m; that earlier, the members of the Union had rejected a proposal for a new bonus arrangement and a grievance was lodged with BHP; and that BHP had responded, but that before the dispute settlement procedure was followed, at the first shift meeting thereafter held at 11.00 p.m. on 30 November 1999, the members decided to go out on strike for 48 hours, without notice to BHP. Mr Fisher opposed the application. 8 The Commission adjourned at 10.54 a.m., resuming at 11.58 a.m. to give its decision. At 12.03 p.m., after giving its decision, the Commission adjourned indefinitely.

THE COMMISSION'S DECISION 9 Relevantly, the Commission's decision was as follows: "[2] The Commission has been informed that a 48 hour strike by the above members commenced at 11.00pm on 30 November 1999 following what can best be described as a breakdown in negotiations around a revised 'survival agreement' for the Colliery. [3] Mr Davies, on behalf of the Company submitted that the action of the members is in breach of the Disputes Settling Procedures contained in the relevant award and agreement. He described the action as a 'wildcat strike' occurring at a time when the colliery is 'haemorrhaging' financially. With the prospect of further ongoing industrial action, the orders sought were necessary to protect and ensure the viability of the business. [4] Mr Fisher who appeared for the union did not generally dispute the tenuous economic position of the colliery but complained of a heavy handed approach by management in introducing changes to the bonus scheme applicable on site. [5] He submitted that a proposed revised bonus scheme, which was recommended for acceptance by the unions district official, was rejected by a meeting of the rank and file members. [6] Exhibit BHP1 is a copy of a grievance form lodged by the union's lodge at Tower Colliery and a copy of the response of management. It reads:

'We (the Lodge) do not believe the Company has the right to change our bonus arrangements without reaching an agreed position with the workforce. The AIRC ordered BHP and the Union to trial on 2-2-99 the BHP Group Bonus Scheme on a 6 months trial. This has continued. The Company has made a change without agreement.'

'During November 1999 Management and Unions have been required, due to poor business results in the financial year to date, to review all areas of the operations to develop a survival plan which helps deliver improved business forecasts for the remainder of the financial year and allows the mine to remain operational. Part of the review and negotiations was a request by Management for the development of a new bonus agreement based on the ability of the business to pay and which would therefore assist with the survival of the Colliery.

'The Colliery has been forced by market conditions to act immediately to effect survival changes. To maintain a bonus scheme the business cannot afford, will jeopardise the viability of the mine.'

[8] Section 127 directs the Commissions attention to whether it appears that industrial action is happening, threatened, impending or probable.

[9] Having considered the submissions of the parties in todays proceedings, I am clearly satisfied that industrial action is occurring and is probable into the future.

[10] It is against the background of the submissions that I am satisfied that I should exercise the discretion contained in section 127 and make an order in this matter.

[11] I do so because I consider the action complained of to be unauthorised and extremely counter productive to the viability of the Colliery."

THE COMMISSION'S ORDER 10 The relevant operative provisions of the Order (which were entitled the BHP Coal (Tower Colliery) Industrial Action Order) provided for the following matters: "2. Parties Bound This Order is binding upon: (a) the Construction, Forestry, Mining and Energy Union (the CFMEU) and its officers, and (b) employees of BHP Steel (AIS) Pty Ltd who are: (i) members of the CFMEU; (ii) employed as production and maintenance workers at Tower Colliery; and (iii) currently employed in work which is regulated by the Coal Mining Industry (Production and Engineering) Consolidated Award 1997, the Tower Colliery U.M.W. Clause 20 Minesite Agreement 1996 and the BHP Coal - CFMEU - Tower Colliery - Survival Agreement 1998; and (c) BHP Steel (AIS) Pty Ltd (the Company). 3. Industrial Action to Stop 3.1 The employees referred to in paragraph 2(b) herein must immediately cease and refrain from engaging in industrial action in the form of any strike, or any restriction, ban or other limitation on the performance of work. 3.2 The employees referred to in paragraph 2(b) herein must make themselves available for work and perform work as the Company may reasonably require. 3.3 The CFMEU must take any and all steps necessary and available under the rules of the CFMEU to ensure that the employees referred to in paragraph 2(b) above comply with the Order. … 5. Service of Order 5.1 A copy of this Order must be served by the Company on the CFMEU and must be supplied by the CFMEU to each of the employees referred to in paragraph 2(b) above. Service by the Company of this Order on the CFMEU shall be sufficient service of the Order on the CFMEU and its officials and members. 6. Terms and date of effect 6.1 This order will take effect from 2 December 1999 and remain in force for a period of two months."

THE UNION'S DEFENCES 11 In its Defence, the Union has denied, or otherwise put in issue, BHP's claim that it breached the Order in the respects mentioned. 12 In addition, as noted, the Union sought to raise a special defence that the Order was invalid. By its solicitors' letter dated 11 August 2000, the Union provided the following further particulars of this defence: "The orders were not validly made in that they were too wide, ambiguous, vague and uncertain and otherwise beyond power, and further in particular:- · They failed to properly identify those persons bound by the orders, including a failure to identify by name those natural persons subject to the orders; · They failed to properly identify the particular industrial action to which they were directed ('the identified industrial action'); · They failed to specify the particular conduct they sought to prohibit; · They failed to exclude industrial action other than the identified industrial action; · They went beyond power by attempting to prohibit industrial action other than the industrial action happening; · They are in relation to matters beyond those matters specified in Section 127(1)(a)-(c) and are accordingly altogether invalid or at least to the extent they go beyond those matters; · They failed to identify a time and date by which the matters ordered to be done were to be done, or if they did they identified times which could not be complied with; · To the extent that the orders went beyond giving a direction that the industrial action stop they were beyond power (for example orders 3.3 and 5.1); · They were beyond power in providing for substituted service on officials and members of the respondent; and · They were not orders for the purpose of S 143(1) of the Act." 13 (Section 143(1) provides: "143(1) [Commission's duties] Where the Commission makes a decision or determination that, in the Commission's opinion, is an award or an order affecting an award, the Commission shall promptly: (a) reduce the decision or determination to writing that: (i) expresses it to be an award; (ii) is signed by at least one member of the Commission; and (iii) shows the day on which it is signed; and (b) give to a Registrar: (i) a copy of the decision or determination; and (ii) a list specifying each party who appeared at the hearing of the proceeding concerned.")

THE ISSUES FOR DETERMINATION 14 Whilst BHP tendered a substantial body of affidavit evidence, with one exception (to be mentioned below), this evidence was not itself controversial, most of it being documentary material, although the parties were at issue as to the proper inferences to be drawn from some of this material. The exception noted consisted of an affidavit of Mr Newman, deposing to a conversation with Mr Harris, an official of the Union. BHP sought to tender this as an admission binding on the Union. At the hearing, I ruled that this was inadmissible, and that I would publish reasons for the ruling later. These reasons have been published simultaneously with these reasons. 15 Before describing the evidence, both affidavit and oral, bearing upon the factual issues that arise, it will be necessary to turn first to consider a preliminary issue, that is, the meaning and operation of the Order, and then, in the light of those matters, to consider the Union's challenge to its validity.

THE FIRST ISSUE: THE MEANING AND OPERATION OF THE ORDER 16 The meaning and operation of the Order should first be considered. The material provisions of the Order were, it will be recalled, as follows: · With respect to its scope, the Order is expressed to be "binding upon": (a) The Union and its officers; (b) The Employees. (c) BHP. · In ordering "[i]ndustrial action to stop", the Order directs (par 3.1) that the Employees "must immediately cease and refrain from engaging in industrial action in the form of any strike, or any restriction, ban or other limitation on the performance of work". · In this connection, the Order then directs (par 3.2) that the Employees "must make themselves available for work and perform work as [BHP] may reasonably require". · Further in this connection, the Order directs (par 3.3) that the Union "must take any and all steps necessary and available under the rules of the [Union] to ensure that the [Employees] comply with the Order". · In directing service of the Order, the Order directs (par 5.1) that a copy (1) "must be served by [BHP] on the [Union]" and (2) "must be supplied by the [Union] to each of the [Employees]". It is further directed that "[s]ervice by [BHP] of this Order on the [Union] shall be sufficient service of the Order on the [Union] and its official and members". · The Order was to take effect from 2 December 1999 and to remain in force for two months (par 6.1). 17 In construing the Order, it is necessary to have regard to its statutory context, which, as noted, is s 127 of the Act. It will be recalled that the following are, relevantly, its principal features: · The grant to the Commission of the power, by order, to direct that "industrial action" (as defined) stop if it appears to the Commission that such is happening in relation to an "industrial dispute" (as defined) (s 127(1)). · An organisation to whom such an order is expressed to apply must comply with the Order (s 127(5)). 18 When the Order is read in this statutory context, the Order should, in my view, receive the following interpretation of its meaning and operation: · Since the Order is expressed (par 2(a)) to bind, inter alios, the Union, the Union is bound by virtue of s 127(5)) to comply with it. The Employees, likewise, are bound to comply. · The Employees must, during the period of two months from 2 December 1999, immediately cease and refrain from engaging in "industrial action" in any of the forms specified and must make themselves available for work and perform work as BHP may reasonably require (pars 3.1, 3.2, 6.1). 19 Although, as has been said, "industrial action" has the particular meaning provided by its statutory definition (s 4(1)), the other language of par 3.1 and par 3.2 was, in my view, intended to have its ordinary meaning. However, on behalf of BHP a claim is made, as noted, which would give these provisions an ambulatory operation, so as to pick up (albeit within the two month period) industrial action happening in relation to a different dispute. As has been seen, the amended statement of claim addressed not only the Tower Colliery dispute which was unresolved as at 2 December 1999, but also the national stoppage which later happened on 20 January 2000. This (latter) particular claim is reflected in par 3 of the amended application, whereby BHP seeks the imposition of a penalty for an alleged breach of Order 3 on 20 January 2000. 20 But, in my opinion, on its true construction, the Order was not intended to operate in the ambulatory fashion contended for by BHP. 21 It is true that, as a matter of statutory function, the Commission is empowered, by the terms of s 127(1), to direct, by order, that "industrial action" stop or not occur if a number of different circumstances appear to the Commission to exist; that is to say, if "industrial action" is happening, or is threatened, impending or is probable, in relation to, inter alia, an "industrial dispute" or work that is regulated by an award or a certified agreement. As a matter of the potential scope of the power to direct, by order, that "industrial action" stop or not occur, it is clear from the language and structure of s 127(1) that the Commission's powers may be exercised not only where "industrial action" has occurred, but also where, although it has not yet occurred, it is threatened, impending or probable. In the former case, the appropriate form of order would be a direction that the action "stop"; and in the latter case, that it "not occur". The present question is not concerned with the scope of the statutory power, but with the meaning and operation of a particular order. 22 It may be accepted that the Commission could, in appropriate circumstances, have given a direction that operated in respect of not only the current dispute at the Tower Colliery, but also in respect of a future national dispute. In my view, however, the language of the Order makes it clear that only the former, and not the latter, was intended to be addressed. There are, in the terms of the Order, several indications to this effect. For one thing, the entitlement nominated is "the BHP Coal (Tower Colliery) Industrial Action Order". For another, the description of the Employees bound picks up (par 2(b)(iii)) those members of the Union employed as production and maintenance workers at the Colliery currently employed in work regulated by the award and Tower Colliery agreements specified. None of this language is broad enough to pick up a national stoppage. Nor is the language of the Order appropriate to include a future industrial matter. The Order is to "cease and refrain" the action immediately. This could only be intended to refer to action then happening, as distinct from threatened future conduct, in which latter case, the Order would, presumably, direct that the action "not occur". 23 In other words, in my view, the Order applied only to the existing industrial dispute at the Tower Colliery on 2 December 1999, and did not apply to the later national dispute which happened on 20 January 2000. Accordingly, I reject the ambulatory construction of the Order contended for by BHP. 24 I therefore dismiss the claim, made in par 3 of the amended application, that a penalty be imposed for the alleged breach on 20 January 2000 of Order 3.

THE SECOND ISSUE: THE VALIDITY OF THE ORDER 25 As has been seen, the Union now seeks to challenge the validity of the Order on several grounds. 26 For its part, BHP seeks to meet this challenge in a number of ways, including a preliminary submission, going to the Court's jurisdiction, that a collateral challenge of this kind is not available, given especially the circumstance that the Union must be taken to have elected not to apply to the Full Bench of the Commission at the time for leave to appeal. 27 In my opinion, a collateral challenge is open to the Union, at least upon the technical, formal or procedural grounds (as distinct from the merits) sought to be agitated here. (Clearly, an attack upon constitutional grounds would be available, notwithstanding the existence of a privative clause - see O'Toole v Charles David Pty Ltd (1991) 171 CLR 232 - but no constitutional question arises here). 28 It is established, in my view, that if action may be properly classified as administrative, rather than judicial, its validity may be challenged in judicial review proceedings (see Ousley v The Queen (1997) 192 CLR 69 at 79 - 80; 100). Ousley was cited in the present context in The Attorney-General (Cth) v Breckler (1999) 197 CLR 83. Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ said (at 108): "If the determination of a complaint by the Tribunal be characterised as activity of an administrative nature, then in the absence of legislative prescription to the contrary, the determination would be open to collateral review by a court in the course of dealing with an issue properly arising as an element in a justiciable controversy of which the Court was seised. This proposition recently was applied in the Court in Ousley v The Queen." 29 Their Honours then also cited Boddington v British Transport Police [1999] 2 AC 143 at 161 - 162 and 172 - 173. 30 In Boddington, Lord Irvine LC said (at 161 - 162): "By contrast, where subordinate legislation (e.g. statutory instruments or byelaws) is promulgated which is of a general character in the sense that it is directed to the world at large, the first time an individual may be affected by that legislation is when he is charged with an offence under it: so also where a general provision is brought into effect by an administrative act, as in this case. A smoker might have made his first journey on the line on the same train as Mr. Boddington; have found that there was no carriage free of no smoking signs and have chosen to exercise what he believed to be his right to smoke on the train. Such an individual would have had no sensible opportunity to challenge the validity of the posting of the no smoking signs throughout the train until he was charged, as Mr. Boddington was, under byelaw 20. In my judgment in such a case the strong presumption must be that Parliament did not intend to deprive the smoker of an opportunity to defend himself in the criminal proceedings by asserting the alleged unlawfulness of the decision to post no smoking notices throughout the train. I can see nothing in section 67 of the Transport Act 1962 or the byelaws which could displace that presumption. It is clear from Wandsworth London Borough Council v. Winder [1985] A.C. 461 and Reg. v. Wicks [1998] A.C. 92, 116, per Lord Hoffmann that the development of a statutorily based procedure for judicial review proceedings does not of itself displace the presumption." 31 Lord Steyn said (at 172): "The general rule of procedural exclusivity judicially created in O'Reilly v. Mackman [1983] A.C. 237 was at its birth recognised to be subject to exceptions, notably (but not restricted to the case) where the invalidity of the decision arises as a collateral matter in a claim for infringement of private rights. The purpose of the rule was stated to be prevention of an abuse of the process of the court, and that purpose is of prime importance in determining the reach of the general rule: compare Mercury Communications Ltd. v. Director General of Telecommunications [1996] 1 W.L.R. 48, 57e, per Lord Slynn of Hadley. Since O'Reilly v. Mackman decisions of the House of Lords have made clear that the primary focus of the rule of procedural exclusivity is situations in which an individual's sole aim was to challenge a public law act or decision. It does not apply in a civil case when an individual seeks to establish private law rights which cannot be determined without an examination of the validity of a public law decision." 32 Lord Steyn went on to say (at 173): "There is, above all, another matter which strikes at the root of the decision in Bugg's case. That decision contemplates that, despite the invalidity of a byelaw and the fact that consistently with Reg. v. Wicks such invalidity may in a given case afford a defence to a charge, a magistrate court may not rule on the defence. Instead the magistrates may convict a defendant under the byelaw and punish him. That is an unacceptable consequence in a democracy based on the rule of law. It is true that Bugg's case allows the defendant to challenge the byelaw in judicial review proceedings. The defendant may, however, be out of time before he becomes aware of the existence of the byelaw. He may lack the resources to defend his interests in two courts. He may not be able to obtain legal aid for an application for leave to apply for judicial review. Leave to apply for judicial review may be refused. At a substantive hearing his scope for demanding examination of witnesses in the Divisional Court may be restricted. He may be denied a remedy on a discretionary basis. The possibility of judicial review will, therefore, in no way compensate him for the loss of the right to defend himself by a defensive challenge to the byelaw in cases where the invalidity of the byelaw might afford him with a defence to the charge. My Lords, with the utmost deference to eminent judges sitting in the Divisional Court I have to say the consequences of Bugg's case are too austere and indeed too authoritarian to be compatible with the traditions of the common law." 33 In my view, there are no indications in the Act's legislative scheme that a collateral challenge of the present kind was prohibited. Nor, in my opinion, should the Union be held estopped from challenging the validity of the Order on the technical grounds raised. The position would be different if an attempt were made now to re-agitate the merits; different considerations would apply, for instance, such an attempt could be seen as an abuse of process under the modern doctrine (cf. Boddington, above, at 172). 34 It follows that the present collateral challenge is justiciable in this proceeding. 35 It will be convenient to consider the several grounds of challenge to the validity of the Order in turn as follows. (a) Was the Order invalid because it failed to properly identify the persons bound, and (specifically), because it failed to identify those persons by name? 36 In my opinion, there was no need to identify the persons bound by their names. As noted, s 127(5) provides that a person "to whom an order is expressed to apply" must comply with it. It follows that the person must be expressly identified. But it does not follow that a person cannot be identified by membership of a class of persons, provided that class itself is expressly identified. In other words, there is no requirement that each person bound must be individually named in the Order. 37 Here, par 2(b) identifies the class of persons bound by the following steps: first, to identify the employees of BHP who are members of the Union; next, within that group, to identify those who are employed as production and maintenance workers at Tower Colliery; finally, within this group, to identify those who are currently employed in work regulated by the Award and Agreements specified. 38 In my opinion, this is a legitimate process of identification of those persons bound by the Order. It is explicit and may be rendered certain by its application in a context which is appropriate for the application of such a process of identification. 39 This collateral challenge is rejected. (b) Was the Order invalid because it failed properly to identify the particular industrial action to which the Order was directed? 40 I have already considered the meaning and operation of the Order. In my opinion, once the Order is read down in the way I would, confining the Order as on its face directed to the current dispute at the Tower Colliery, and rejecting BHP's ambulatory construction, it must follow that, in my view, there is no uncertainty in this area. 41 I reject this collateral change.

(c) Was the Order invalid because it failed to specify the particular conduct prohibited or because the Order failed to exclude industrial action other than the "identified" industrial action, or because the Order attempted to prohibit other industrial action or otherwise went beyond s 127(1)(a) - (c)?

42 Again, I have considered these aspects in dealing with the Order's meaning and operation. Again, once BHP's ambulatory interpretation is rejected, the meaning of the Order in these respects is, in my opinion, sufficiently certain.

(d) Was the Order invalid because it failed to identify a time and a date by which the conduct ordered was to be done? 43 It will be recalled that par 3.1 of the Order directed that the Employees must "immediately" cease and refrain from engaging in the industrial action specified. In my opinion, the use of the adverb "immediately" is sufficiently certain for present purposes. Its primary dictionary meaning is "1. Without lapse of time, or without delay; instantly; at once." (The Macquarie Dictionary, 2nd ed.). Clearly, I think, the use of the adverb in the Order was intended to have its ordinary meaning. Authority confirms this. 44 In Dorsman v Nichol (1978) 20 ALR 231, Forster CJ said (at 237): "There is a good deal of authority concerning the meaning of the word 'immediately' in contexts other than the one presently under consideration. 'It has already been decided and necessarily so that the words 'immediately afterwards' in the statute cannot be construed literally; and if you abandon the literal construction of the words, what can you substitute but 'within a reasonable time' especially as an endorsement of the certificate eo instanti can be of no necessity whatever' (Page v Pearce (1841) 8 M & W 677, per Abinger CB at 678). 'There are, however, many cases in which it has been held that the word 'immediate' occurring in a statute is not to be construed in its strict sense 'on the instant' but that it means with reasonable promptness having regard to all the circumstances of a particular case' (R v Aston (1850) 19 LJMC 236, per Wightman J at 239). 'It is impossible to lay down any hard and fast rule as to what is the meaning of the word 'immediately' in all cases. The words 'forthwith' and 'immediately' have the same meaning. They are stronger than the expression 'within a reasonable time' and imply prompt, vigorous action without any delay and when there has been such action as a question of fact having regard to the circumstances of a particular case' (R v Justices of Berkshire (1879) 4 QBD 469 per Cockburn CJ at 471). The last citation appears to differ from Page v Pearce, supra, and in so far as it does so Page v Pearce must be taken to have been overruled by that later case which is a decision of a Full Court of the Court of Queen's Bench. The two cases may be reconciled by paraphrasing Lord Cockburn to say that in most, if not all, circumstances a reasonable time implies prompt and vigorous action. In some situations ten days afterwards may be immediately and others one hour later might not be. One other fact is to be looked at, when construing this or indeed any other word, is the intention of the legislature either specifically stated or implied." (Emphasis added) 45 This approach is supported by High Court authority. 46 In Measures v McFadyen (1910) 11 CLR 723, Isaacs J said (at 736): "'Forthwith' has been defined in several cases, and they are not altogether uniform, but the greater number and the most authoritative afford a clear idea of the meaning. In Ex parte Lamb; In re Southam, Jessel M.R. and Lush L.J. pointed out that its meaning depends to a great degree upon the circumstances in which it is used. It is evident that a contract to forthwith deliver a ton of flour demands much more prompt performance than to forthwith construct an ironclad, and so the word cannot be said to have an invariable meaning, irrespective of the subject matter in connection with which it is used. ''Forthwith' of course means,' says Bowen L.J. ''at once' having regard to the circumstances of the case': Lowe v. Fox. Sir James Hannen thought it meant 'with as little delay as possible': Furber v. Cobb, and similarly in Roberts v. Brett Lord Chelmsford considered it meant 'without delay or loss of time.' In the Queen v. Berkshire Justices Cockburn C.J. said: - 'The words 'forthwith' and 'immediately' have the same meaning. They are stronger than the expression 'within a reasonable time', and imply prompt, vigorous action, without any delay, and whether there has been such action is a question of fact, having regard to the circumstances of the particular case.' (Emphasis added) 47 In my opinion, these observations are equally pertinent here. (e) Was the Order invalid because it was impossible of performance within the time prescribed? 48 On this (alternative) branch of its argument, the Union points to the use of the adverb "immediately" in par 3.1 and contends that, on its face, the Order was impossible of performance "immediately" on the date the Order was made, 2 December 1999. 49 I cannot accept the submission. Once the adverb "immediately" is read, as I think it should be, as "as soon as reasonably possible in the circumstances" - the claim of impossibility of performance evaporates. (f) Did the Order, by par 3.3 and by par 5.1, purport to do more than s 127(1) authorised (that is, to direct that industrial action stop or not occur) and if so, did this invalidate the Order? 50 It will be convenient to consider par 3.3 first. 51 It will be remembered that, by par 3.1, it was directed that the Employees must immediately cease and refrain from engaging in industrial action in any of the forms then specified; that, by par 3.2, it was directed that the Employees must make themselves available for work and perform work as BHP may reasonably require; and that, by par 3.3, it was directed that the Union must take any and all steps necessary and available under the Union's rules to ensure that the Employees comply with the Orders. 52 On behalf of the Union, it is submitted that par 3 goes beyond s 127(1) because, rather than direct the cessation or non-recurrence of any industrial action, the Order "purports to place a mandatory obligation on [the Employees] … [and] … on [the Union] to take various steps under the [Rules]". 53 I cannot accept the submission. 54 Although the terms "industrial dispute" and "industrial action", used in s 127(1), are specifically defined by the Act, it is clear that the language of the provision is otherwise intended to have its ordinary meaning. In particular, in the provision (in s 127(1)) empowering the Commission, by order, to give directions that the industrial action "stop", the verb "stop" is, in my view, plainly intended to have its ordinary meaning. The Macquarie, 2nd ed., offers this definition: "1. to cease from, leave off, or discontinue: to stop running. 2. To cause to cease; put an end to: to stop noise in the street 3. To interrupt, arrest, or check (a course, proceeding, process, etc.). 4. To cut off, intercept, or withhold: to stop supplies. 5. To restrain, hinder, or prevent (fol. by from): to stop a person from doing something." 55 In using the verbs "cease" and "refrain", par 3.1 uses language consistent with the ordinary meaning of "stop" and is thus within power. 56 It is true that, as a matter of form, par 3.2 is expressed in positive, rather than negative, terms. But as a matter of substance, par 3.1 and par 3.2 are, in truth, to the same effect. As has been seen, a common element of the various forms of "industrial action" as defined in s 4(1) is a failure or refusal to perform work in the customary manner. A negative stipulation that such a practice cease (par 3.1), is tantamount to a direction to perform work in the customary manner (par 3.2). I perceive no excess of power in the direction given in par 3.2. 57 It is also true that par 3.3 stands in a position different from par 3.1 and par 3.2. Paragraph 3.3 is directed to the Union. But, as a matter of the scope of the power to give directions under s 127(1), a registered organisation of employees cannot, as a matter of law, be beyond the reach of s 127(1). In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v A G Coombs Fire Protection (1998) 87 IR 110, the Commission (Guidice J, Polites SDP and Hingley C) said (at 113): "Mr Bourke also referred us to s 4(8) which provides as follows: '(8) In this Act, a reference to engaging in conduct includes a reference to being, whether directly or indirectly, a party to or concerned in the conduct.' Whilst there are difficulties with this provision it appears to us to be sufficiently wide to extend participation in industrial action to the conduct of inciting or encouraging such industrial action." 58 The Commission went on (at 114) to cite the following passage from the judgment of Ryan J in Kilpatrick Green Pty Ltd v CEPU,(unreported, Federal Court of Australia, 28 May 1998): "An organisation of employees which through officers or employees counsels, procures or 'organises' the taking of industrial action by employees whose employment is subject to a certified agreement is at least indirectly a party to or concerned in that industrial action." 59 I respectfully agree. 60 In my opinion, par 3.3 is within power. The actual exercise of that power is, of course, another question. 61 I turn next to the attack on par 5.1. 62 It will be recalled that par 5.1 directs service of the Order upon the Union, and further direct that a copy of the Order "be supplied by the [Union] to each of the [Employees]". 63 On behalf of the Union, it is contended that, since the Order contemplated service upon the Union, the further direction that the Union supply a copy of the Order to Employees is unnecessary and superfluous and thus beyond power. 64 I cannot accept the contention. 65 The Act does not prescribe any particular form of "service", or notification, of an order made under s 127(1). However, a power to give incidental directions in this area may be implied to the extent that it is necessary to render the exercise of the statutory power effective (see, e.g. Phillip Morris Incorporated v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 per Gibbs J at 496; cf. Re Refugee Review Tribunal; Ex parte AALA [2000] HCA 57 per Gaudron and Gummow JJ at par 13). In my opinion, par 5.1 was within power. Nor, in my view, is there any ambiguity in the notion of "supply". It has its ordinary dictionary meaning of "furnish" or "provide". It does not require personal service.

THE THIRD ISSUE: WERE THERE ANY BREACHES OF THE ORDER? 66 I turn next to find the primary facts. (a) Findings of primary fact in respect of events occurring on or about 2 December 1999. 67 As noted, there was no real contest about these primary facts. The only evidence adduced by the Union was in the form of an affidavit by its solicitor annexing the record of the proceedings before the Commission. None of the witnesses was cross-examined. Accordingly, I accept the evidence tendered which was to the following effect: · As stated in the Commission's reasons (above), a 48 hour strike by the Employees commenced at 11.00 p.m. on 30 November 1999, following a "breakdown" in negotiations around a revised "survival agreement" for the Colliery. · At the hearing before the Commission (on the morning of 2 December 1999), Mr Fisher, appearing for the Union, accepted (transcript p 7) that the Union "are taking industrial action …". · Immediately following the Commission hearing, the Associate to Commissioner Harrison provided copies of the Order to Mr Fisher (according to the affidavit of Mr Newman sworn on 20 June 2000 (par 14)). · At the conclusion of the hearing before the Commission (i.e. shortly after noon on 2 December 1999), Dean Dalla Valle, BHP's General Mine Manager, said to Mr Fisher: "How are we going to get these blokes back to work …?" Mr Fisher replied: "We will see you at 11 pm." (See the affidavit of Mr Newman, sworn 20 June 2000, par 16; and the affidavit of Mr Dalla Valle, sworn 19 June 2000, par 6.) · The Order was served on the Union at the office of its Federal Secretary in Sydney at 1.07 p.m. on 2 December 1999 (according to the affidavit of Rebecca Jean Graham sworn 2 December 1999, pars 3 - 5). · One of the Employees, Mr William John Quintal (whose oral evidence is referred to below), attended the Mine on the afternoon of 2 December 1999. According to the affidavit evidence of Mr Newman (par 18), in Mr Newman's presence, Mr Quintal said words to the effect - "I haven't heard from the Union." · Mr Newman observed that none of the Employees had commenced work on the shift due to commence at 3.00 p.m. on 2 December 1999 (par 19). · Mr Newman then telephoned Mr Harris (see separate ruling where most of this conversation is ruled inadmissible). · In accordance with BHP's "Dispute Procedure" dated 26 July 1999, one of the Employees, Myk Smalko (whose oral evidence is explained below), wrote a letter to Mr Newman (his affidavit, par 20) on or about 6 December 1999 as follows: "Mr P Newman Manager Tower Colliery Douglas Park Rd Douglas Park NSW 2569 Dear Sir, I am writing in response to a letter I received from Mr Dalla Valle, dated 061299. I object to being deemed as being held personally responsible for my non-compliance of following the Tower Disputes Procedure and my non-adherence of the Commission order to return to work. Firstly, the question was asked by several members of the legality of the stoppage in relation to following the disputes procedure. We were all re-assured that we were in compliance. Also what our position was in respect with our District in backing this action. Again, we were told that the district was in support of our action. I then can only trust what was told us by our Executive and District officials, as I am expected to trust BHP when we are given talks by its representatives, as being the truth. Secondly, in the failure of afternoon shift complying to the Commissioner's orders to return to work. Being on afternoon shift, the first I heard of such an order was upon my return to work on Monday. I had no communication from either the union executives or the company in relation to this matter. I believe that NOT all reasonable effort was made to communicate with the workforce to inform us of the order by the Commission. If there is some misinterpretation of the Disputes Procedure, then I suggest that the legal people from both sides sit down and make it so it is not open to any misinterpretation, in conjunction with the Commission. Also, I object to letters, such as your above mentioned letter, being sent to me before ALL the facts have been determined. Though I am writing this on only my behalf, I'm sure there are others at Tower who are in a similar position as myself. Who as individuals and families are grieved to having received such a pointed, accusatory letter such as we have received. We are not the criminals as some would deem us to be, but the victims of greedy people putting profits ahead of all else. I trust that in future, consideration will be given to the form and content of letters being sent to your employees, should such circumstances arise again. yours faithfully (Signed Myk Smalko) Myk Smalko" · None of the Employees worked on the shift commencing at 3.00 p.m. on 2 December 1999 (Mr Newman, par 21). · None of the Employees returned to work until 11.00 p.m. on 2 December 1999 (Mr Newman, par 22). · From about 12.15 p.m. on 2 December 1999, David Mark Pearce, BHP's Payroll Officer (affidavit sworn 19 June 2000, pars 5 - 12), attempted to contact each of the Employees who were to commence work that afternoon (with perhaps one exception). In some cases he was able to make contact, and in some cases he was able to leave a message. In other instances, no contact was made. When contact was made, Mr Pearce said: "… Commissioner Harrison has issued section 127 orders which orders employees to cease and refrain from industrial action and must return to work immediately." · At about 2.00 p.m. on 2 December 1999, a copy of the Order was posted on a notice board at the Mine (affidavit of Trevor Charles Jones, BHP's Human Resources Manager, sworn 19 June 2000, par 5). · At about 5.00 p.m. on 2 December 1999, Mr Jones said to Mr Harris: "Ken, the guys are in breach of the orders made by Commissioner Harrison." Mr Harris said: "I know." Mr Jones said: "They need to get back to work." (Mr Jones, par 6.) · Mr Quintal, who was subpoenaed by BHP to give evidence, gave the following evidence (transcript pp 14 and following). Mr Quintal is a machine operator, and a member of the Union. On 1 and 2 December 1999, he was rostered on the permanent afternoon shift. At the time, there was a 48 hour strike, in which he participated. On the first day of the strike (1 December 1999), he was on strike. But at about 2.30 p.m. on the second day (2 December 1999), he attended for work, because he had heard from someone at BHP that he "was supposed to come back to work". However, having arrived at work, and having spoken to some of BHP's staff, he sought, but failed, to find the Union's representative at the Mine. He also sought to telephone Mr Lester, the Union President, but was unable to make contact. He did not proceed to work the shift, but if Mr Lester had told him to go back to work, he would have done so. After attempting to reach Mr Lester, he spoke by telephone with another Union official at the Union's office in Wollongong, and was told to go home until notified to come to work. He was never provided with a copy of the Order. · Mr Smalko was also called by BHP on subpoena to give evidence (transcript pp 20 and following) as follows. Mr Smalko was an underground coal miner (face worker), employed at the Mine until August 2000. He participated in the 48 hour stoppage in early December 1999. He was due to work the afternoon shift during the stoppage. During the first day of the stoppage, he was requested by Mr Lester, Lodge President, to secure a dangerous place. He did this, but did not work either of the two shifts. He was not contacted about going to work on the second day of the stoppage. The Union did not provide him with a copy of the Order, although a copy was attached to a letter he received from BHP. (b) Did the Union breach par 5.1 of the Order by failing to supply a copy of the Order to the Employees? 68 This is the claim made in par 1 of the amended application. 69 It is common ground that these are penal, yet civil, proceedings and that BHP needs to satisfy the Court on the balance of probabilities and to that degree of satisfaction explained in Briginshaw v Briginshaw (1938) 60 CLR 336, on each and every essential matter necessary to show that a breach of the Order has been committed (see, e.g. Australasian Meat Industry Employees' Union v Meneling Station Pty Ltd (1986) 16 IR 245 per Evatt J at 254). 70 As has been seen, the Union raised, and I have rejected, a preliminary contention as to the validity of the Order, including a challenge to the provisions of par 5.1 itself. It is further, and alternatively, submitted on behalf of the Union that the present case falls within the analogous principle applied in proceedings for contempt for failure to comply with a court order, namely that the terms of the order must be clearly expressed and the evidence of the breach must clearly appear (see Microsoft Corporation v Marks (1996) 139 ALR 99 at 118 - 119; Australian Industry Group v Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union [2000] FCA 629 at pars 33 - 34). 71 In considering the challenge to the validity of par 5.1, it was first necessary to construe that provision. As has been seen, there was, in my view, no apparent ambiguity in the provision, and the phrase "must be supplied" in particular is not equivocal or uncertain. On the contrary, the requirement imposed on the Union, that it had to supply (i.e. furnish or provide) a copy of the Order to each of the Employees within a reasonable time, is explicit and free of any ambiguity. 72 As to the evidence of breach, again the position is clear. Although the Union called no evidence on the point, the foregoing uncontroversial primary facts plainly indicate that the Union made no attempt at any time to provide the Employees with a copy of the Order. 73 Accordingly, in my view, a breach of par 5.1 has been clearly established. I so find. (c) Did the Union breach par 3.3 of the Order on or about 2 December 1999 by failing to take any and all steps necessary available under its rules to ensure that the Employees complied with the Order? 74 This is the claim made in par 2 of the amended application. 75 Incorporated by reference into this question are the two anterior related questions: (1) did the Employees breach par 3.1 by failing to immediately cease and refrain from engaging in industrial action?; and (2) did the Employees breach par 3.2 by failing to make themselves available for work and perform work as BHP may reasonably require? 76 Again, the Union not only challenged the validity of the Order in these respects, it further submitted that these provisions of the Order were not clearly expressed, so that no breach of any of the sub-pars of par 3 could be established. 77 I cannot accept the submissions in any respect. 78 So far as concerns the meaning of sub-pars (1) and (2), upon my construction (above) of these provisions, the requirements made of the Employees are, as I have found, clearly expressed in every respect. I reject the notion that they possess inherent ambiguity. 79 Has a breach by the Employees of these requirements been clearly demonstrated? Again, the Union called no evidence on the point. The primary facts advanced in BHP's evidence (above) plainly indicate that the Employees did not cease and refrain from their industrial action commenced on 30 November 1999 and did not, in the currency of the 48 hour stoppage, make themselves available for work. I find that these ingredients of a breach of the requirements of par 3.3 have been clearly established. 80 In other respects, par 3.3 of course raises separate questions in respect of the position of the Union itself as follows. 81 First, is, as the Union contends, the language of the composite phrase "must take any and all steps necessary and available under the rules of the [Union] to ensure …" uncertain or ambiguous? In my opinion, it is not. On the contrary, as a whole, it should receive its ordinary meaning, as was plainly intended. The adjective "necessary" has, I think, its ordinary meaning of "that cannot be dispensed with" (Macquarie, 2nd ed.). The adjective "available" (under the Rules) likewise is intended to its ordinary meaning of "suitable or ready for use" (Macquarie, 2nd ed.) 82 Secondly, do the facts demonstrate, to the requisite degree of satisfaction, that the Union failed to act accordingly? 83 As has been seen, in its amended statement of claim, BHP points to a wide range of powers available to the Union in the present kind of context; and significantly, the Union called no factual evidence on the question at all. 84 However, further several points arise in this connection, notwithstanding the absence of evidence from the Union. As a matter of ordinary interpretation of an order of the present kind, the directions given must be complied with within a reasonable time, even if language such as "immediately" or "forthwith" is used (see above and see Hillingdon London Borough Council v Cutler [1968] 1 QB 124). It is true that cases could arise where, for special reasons, it may be impossible or impractical for a person bound by an order to act inside a particular period of time. No doubt this would bear upon the question of what was a reasonable period of time for this purpose. But there was no evidence from the Union suggesting any impossibility or impracticality here. 85 As a matter of legal principle, compliance must be, in some way, within the power or capacity of the person directed before it could be held to have failed to comply (see The Queen v Kelly; Ex part Berman (1953) 89 CLR 608 per Dixon J at 623). At the same time - "Where an injunction is mandatory in its terms, it is the duty of the party bound by the injunction to discover the proper means of obeying the order." (Halsbury's Laws of England, 4th ed. (Reissue), par 472.) 86 In Attorney-General v Walthamstow Urban District Council (1895) 11 TLR 533, Chitty J said (at 533 - 534): "The defendants argued that the application was based on contempt of Court and that unless the Court was satisfied that the defendants were wilfully disobeying the order the Court would not make an order for sequestration. The meaning of these applications was, however, to enforce the rights of the parties obtaining orders. If the Court saw that an order was disobeyed the Court could not refuse to execute the order, because to do that would be to deny the right of the parties obtaining the order. That there was a nuisance and that for some months past there had been a nuisance was satisfactorily proved. It was the duty of the defendants to find out the proper means of obeying the order. If a defendant was not merely doing his best, but also taking proper measures to comply with the order, the Court would suspend the sequestration where a corporation was concerned in order to give to the corporation some opportunity of finding means of dealing with the subject of complaint. It was, however, no part of a plaintiff's duty to point out to a defendant the proper means to remedy the nuisance. It was the defendant's duty to find out the proper mode of complying with the order." (Emphasis added) 87 Applying that approach here, it appears clearly from the evidence that, although at all times well aware of the requirements of the Order, the Union took no steps to ensure that the Employees complied. The Union having called no evidence on the question, it may be inferred that any evidence, if called, would not have assisted the Union's case. In particular, the Union did not seek to lead evidence that compliance with the Order was not, in fact, possible under the rules. No legal reason of any substance for the Union's failure to comply with the Order was forthcoming. 88 In all of these circumstances, I am comfortably satisfied that a breach of par 3.3 has been demonstrated. I so find.

ORDERS 89 At this stage I make the following orders: 4. Declare that the breaches alleged in pars 1 and 2 of the amended application have been established. 5. Dismiss the claim made in par 3 of the amended application. 6. Stand the proceedings over to Wednesday, 22 November 2000 at 9.45 a.m. for directions on the hearing of the question of penalty in respect of the breaches found.

I certify that the preceding eighty-nine (89) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont.

Solicitor for the Applicant: Blake Dawson Waldron

Counsel for the Respondent: S Crawshaw SC, I Taylor

Solicitor for the Respondent: R L Whyburn & Associates

Workplace Relations Act 1996(Cth)s 127, s

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