Matter No. IRC 3223 of 2004 - Summons on the AFMEPKIU
1 On 17 February 2004, the AFMEPKIU and its officers and employees did not immediately cease and refrain from organising, encouraging or inciting any industrial action contrary to order 1 of the amended dispute orders made on 17 February 2004 in contravention of order 2 of the amended dispute orders made on 17 February 2004 in matter No IRC 423 of 2004.
2 Pursuant to s 139 of the Industrial Relations Act 1996, on 17 February 2004, the AFMEPKIU contravened the amended dispute orders made on 17 February 2004 in matter No IRC 423 of 2004.
SUBMISSIONS OF THE PROSECUTOR
4 In relation to the contraventions by the AWU the prosecutor submitted monetary penalties should be imposed in the high range. It was submitted the case against the AWU was exacerbated by findings that its officials did not just fail to take all reasonable steps to ensure compliance with the dispute orders, but the officials positively organised, encouraged and incited its members to defy the dispute orders. It was found that the AWU had scant regard for the dispute orders and pursued a course of action that caused it to contravene the orders: see judgment on contravention at [120].
5 It was submitted the contravention found on 16 February 2004 comprised the failure of Mr Gillespie, a senior official of the AWU, to take all reasonable steps to ensure compliance with the Commissioner's dispute orders ([107]) and that the conduct of Mr Gillespie included taking positive steps that had the effect of widening the industrial action ([106]).
6 Mr R Warren of counsel for the prosecutor submitted that in relation to the contraventions on 17 February 2004 by the AWU, they were:
(i) the failure of Mr Gillespie to take all reasonable steps to ensure compliance with the Commissioner's dispute orders at a meeting of the AWU's (and AMWU's) members on the morning of 17 February 2004 ([113], [117] and [118]);
(ii) the failure of Mr Gillespie and Mr Hancock, an official of the AWU, to cease and refrain from organising, encouraging or inciting industrial action in the afternoon of 17 February 2004 contrary to the Commissioner's amended dispute orders ([122], [134] and [136]);
(iii) the failure of the AWU to take all reasonable and necessary steps to ensure compliance with the Commissioner's amended dispute orders ([144]).
7 On 27 February 2004 it was submitted the contraventions were:
(i) the failure of Mr Gillespie and/or Mr Hancock to cease and refrain from organising, encouraging or inciting industrial action contrary to the Commissioner's amended dispute orders; and
(ii) the failure of Mr Gillespie and/or Mr Hancock to take all reasonable and necessary steps to ensure compliance with the Commissioner's amended dispute orders.
8 Mr Warren submitted that in respect of the contravention by the AWU of the dispute order found to have occurred on 16 February, the maximum penalty applicable was $10,000. The further breach of that order on 17 February attracted a maximum penalty of $5,000. Further, it was submitted the contravention of the amended dispute order 3 on 17 February attracted a maximum penalty of $10,000 and the contravention of the amended dispute order 2 on 17 February, $10,000. In respect of the further contraventions of the amended dispute orders 2 and 3 on 27 February, the prosecutor submitted these attracted maximum penalties of $5,000 each. Accordingly, what the prosecutor submitted was that the total maximum penalty was $45,000.
9 As to the penalty to be imposed on the AFMEPKIU, the prosecutor submitted it should be in the mid-range of a maximum penalty of $10,000. Mr Warren submitted relevant to penalty was the finding that when the relevant official of the AFMEPKIU, Mr Phillips, was informed on 13 February 2004 that the work changes did not affect the AFMEPKIU's members, he did not challenge this nor did he inform the members of the situation at the time. The members of the AFMEPKIU were swept into the dispute due to the inaction of Mr Phillips ([68] and [133]).
SUBMISSIONS OF THE AWU
10 The AWU's primary submission on penalty was that the Court should dismiss the matter under section 193(3)(a) on the basis that the circumstances were such that no action should be taken on the contravention. In the alternative, it was submitted any financial penalty imposed on the AWU ought be in the low range. As to the maximum available penalties, Mr Hatcher of counsel for the AWU submitted that only one maximum of $10,000 was applicable and that was in respect of the first contravention on 16 February. In respect of the other contraventions on 17 and 27 February the maximum applicable penalty in each case was $5,000.
11 In this respect, Mr Hatcher submitted:
Our view is that the relevant maximum of 10,000 for the breach found to occur on the 16th, 5,000 on the 17th and 5,000 alone, and a further 5,000 on the 27th - now I say that for this reason that the provisions which my learned friend took you to at s 139(4), paragraph (a) applies here and set mandatory maximum penalties for contraventions of dispute orders. Now what Mr Warren was attempting to do today, which hasn't been apparent in the proceedings before, was to try and characterize these proceedings as involving two separate orders which would, as it were, allow the Act to be applied twice. We say that it is not available for a number of reasons. Firstly, it is clear, when one reads the decision of Connor C in relation to what he did on 17 February, that the Commissioner did not make new orders. He amended the existing orders. So what we have is a single order, albeit varied, on the 17th throughout the three relevant days on which the breach has been found.
When one comes to the conclusion that there was a single order, which is clear from the material, then the statutory provisions apply and would not permit your Honour to approach the penalty in the way raised by my learned friend.
We would add to that procedurally. This case proceeded by a single summons against my client. If we had received that summons as pleading breaches of two different orders, we would complain that it was duplicitous. But as we understood the proceedings, that's right from the time the summons was issued until now, it was on the basis that there was only one set of orders which was the subject in the summons.
12 In relation to 16 February Mr Hatcher submitted that, in essence, the contravention found by the Court consisted of a failure by Mr Gillespie at the meetings of members which occurred on 16 February 2004 to take a "stronger and more effective stand" and to put his recommendation for compliance with the dispute orders more "forcefully". In assessing the objective seriousness of the contravention found to have occurred, Mr Hatcher submitted the most significant consideration was that although the AWU had been found not to have taken all reasonable steps to achieve compliance with the dispute order, the AWU did take a number of significant steps to achieve compliance. In particular:
(i) The AWU called a meeting of the affected employees at between 1.00 pm and 3.00pm [par 49 of the judgment]. This occurred after the orders were made (at about 12.45 pm) but before the orders were due to come into effect (at 3.00 pm). This was not a specific step required to be taken by the orders (as compared with the varied orders of 17 February 2004), and thus was taken at the initiative of the AWU.
(ii) At that meeting, Mr Gillespie read the orders to the employees, explained their effect, recommended compliance with the orders, and told the employees that they were obliged to accept the Commission's direction and return to work [pars 37-38].
13 It was submitted for the AWU it was also significant that whilst the Court has found that Mr Gillespie could have done more at the meeting, there was nothing in the evidence to suggest that if he had done so (for example, by issuing a direction), he would have been successful in achieving a return to work. Indeed, it was put the evidence was to the contrary: the Court has accepted that there was hostility amongst the employees at the meeting and that it was understandable that in those circumstances a union official might feel reluctant: [106]. This hostility extended to an attack on Mr Gillespie's integrity by the suggestion that he was "taking backhanders from the Company": [38]. This factor, it was submitted, made this case distinguishable from one in which there was a reasonable step available that would have achieved compliance with the order, but was not taken.
14 Mr Hatcher sought to compare the conduct of the AWU as found in this case to that found by the Federal Court (Beaumont J) in relation to the Construction, Forestry, Mining and Energy Union ("CFMEU") in BHP Steel (AIS) Pty Ltd v CFMEU [2000] FCA 1908. In that decision, which concerned the breach by the CFMEU of orders made under s 127 of the Workplace Relations Act 1996 (Cth), it was asserted the CFMEU was found to have taken no steps at all to comply with the relevant order, and had made no attempt to explain or to justify its failure in this regard. The penalties imposed amounted to $2,200 (out of a maximum of $10,000). In this case, it was submitted, where the AWU had demonstrated that it had taken steps to achieve compliance, and where the failure to achieve compliance was explicable by reference to the hostility of the members, the contravention involved was far less objectively serious.
15 Mr Hatcher submitted:
Can I, for your Honour's benefit, deal with a range of different conducts as to where they would fall in terms of characterization, leaving aside the issue of Mr Hancock on the 17th? It is clear that the findings your Honour made against my client on the 16th and the 17th must be in relation to what was done or not done at the meeting with the members and later at the delegates meeting and that in terms of the wide coverage of the dispute it was the thrust of what happened.
Now one constructs these serious scenarios that at the worst end you might have a union official who goes to a meeting and says, "Look, the Commission has issued orders. I order you to defy those orders. The strike will continue and we are not going to obey those orders", and the dispute continues and gets worsened. Below that there would be an official who attends a meeting after that and says nothing either way as to whether the orders should be complied or not complied with and that's a case of the union taking no steps at all to achieve compliance with the orders. Where we are, we are all below that. We went to the meeting, and your Honour has found that, although we didn't do everything that could have been done, it's clear that your Honour found that we did a number of things and at least made the employees at the meeting aware of the fact that the orders had been made by the Commission and made the employees aware of their contents, advised the employees and put before them in brief terms what the legal effect of the order is and at least to the first of those made a recommendation that those orders be complied with and at the delegates meeting I think your Honour found that my client put things further than that.
So we say if one characterizes the range of categories which might arise in that way, it is clear that this case must fall within the low range and I think on that basis I think the Commission should not follow the indication that my friend has referred to.
16 Referring to the contraventions on 17 February counsel for the AWU submitted they rested on the following findings:
(i) That at the meeting held at 7.00 am, Mr Gillespie was again insufficiently emphatic and forceful in the position which he conveyed to the meeting, and that the words he used when speaking to the meeting were not in the nature of a direction [pars 117-118].
(ii) That Mr Hancock had encouraged a group of employees to take industrial action at about 4.00 pm [par 122].
(iii) That the organisation of the mass meeting for the morning of 18 February 2004 at the delegates meeting held on the evening of 17 February constituted a contravention [par 134].
17 In relation to the first finding it was submitted Mr Gillespie made a strong recommendation that the orders be complied with. Again, although the Court has found that Mr Gillespie did not do all that he could have done, what he did do nonetheless constituted a significant step on his part to achieve compliance with the orders. And again, the evidence is that if Mr Gillespie had gone further and made a direction, in the face of what the Court accepted was a vocal, angry and abusive group of employees ([109]), it would not have made any difference to the outcome and may well have inflamed the situation.
18 As to the second finding, counsel submitted the group of employees involved in this incident was small and in the context of the industrial action which occurred, insignificant.
19 As to the third finding it was submitted the Court had accepted that at the delegates' meeting on the evening of 17 February 2004:
(i) Mr Gillespie, more forcefully than at the other meetings, told the delegates it was necessary that the orders be complied with, in circumstances where the meeting was heated and aggressive [par 132].
(ii) The giving of a formal direction to return to work was not a reasonable step required to be taken under the orders [par 131].
(iii) The decision by Mr Gillespie to proceed with the mass meeting the next day was a "fall back" position necessitated by the rejection by the delegates of a return to work [par 134].
(iv) The calling of the mass meeting for 18 February 2004 to use the numbers of the full complement of employees to outvote the striking workers was the only reasonable step remaining to the AWU to achieve compliance with the dispute orders once the delegates had declined to return to work [par 139].
20 Mr Hatcher submitted that in light of these findings:
[T]he contravention of the orders which the Court has found to have occurred at the delegates meeting on 17 February 2004 could not be assessed as involving any culpability at all. The AWU was now in the position where it had to commit a technical breach of the orders (in organising the mass meeting) in order to achieve substantial compliance with the orders. Paradoxically, this technical breach of the orders has been accepted by the Court as also being a reasonable step required to be taken under the terms of the orders, and in addition was ultimately successful in achieving compliance with the orders. The AWU could not possibly be penalised for its conduct in these circumstances.
21 In relation to the meeting that occurred on 27 February 2004, it was submitted the evidence was that the meeting proper only lasted a very short time. Mr Hatcher referred to Mr Hancock's evidence, which he said was not contested in this respect, was that he told the employees who attended the meeting that there were orders in place and that the employees had to return to work. The employees thereupon returned to work. In the context of a meeting which the employees had requested should occur, it was submitted this was clearly responsible conduct on the part of Mr Hancock and involved the taking of reasonable steps - albeit, as the Court has found, not all reasonable and necessary steps - to achieve compliance with the orders. Counsel submitted this, therefore, could not be regarded as involving any serious contravention of the orders.
22 Counsel for the AWU submitted the principle of totality should also be applied where there is an interlocking relationship between the contraventions found to have occurred: see BHP Steel (AIS) Pty Ltd v CFMEU and Transport Workers Union of Australia v Glynburn Contractors (Salisbury) Pty Ltd (1991) 37 IR 313 per Lee J at 314. This would be particularly applicable, it was submitted, to the contraventions found to have occurred on 16 and 17 February 2004.