Bluescope Steel (AIS) Pty Ltd v Australian Workers' Union, New South Wales

Bluescope Steel (AIS) Pty Ltd v Australian Workers' Union, New South Wales - [2006] NSWIRComm 274 - NSWIRComm 2006 case summary — Zoe

[10]

1 Bluescope Steel (AIS) Pty Ltd ("the prosecutor") had alleged that the Australian Workers' Union, New South Wales ("the AWU") contravened a dispute order made by Commissioner Connor on 23 April 2004 under s 137 and s 138 of the Industrial Relations Act 1996 in matter No IRC 2434 of 2004. The contraventions were alleged to have occurred on 27, 28, 29 and 30 April 2004. 2 The allegations, which were contained in a summons to show cause under section 139 of the Industrial Relations Act, came before this Court on 4 and 5 July 2005. In a judgment given on 28 July 2005 (Bluescope Steel (AIS) Pty Ltd v Australian Workers' Union, New South Wales [2005] NSWIRComm 260) the Court found it had no power to make any findings in the proceedings relating to contravention under s 139 of the Act and dismissed the summons. The primary basis upon which the Court found it did not have jurisdiction was because the dispute order made by Connor C did not apply to the alleged industrial action that occurred on 27, 28, 29 and 30 April 2004 but rather the orders applied to industrial action connected to an industrial dispute that occurred on 22-23 April 2004. 3 On appeal the Full Bench held, overturning the decision at first instance, that there was jurisdiction. The matter was remitted to this Court to determine the application on the merits in accordance with the reasons given by the Full Bench: BlueScope Steel (AIS) Pty Ltd v The Australian Workers' Union, New South Wales [2006] NSWIRComm 149. The effect of the decision of the Full Bench was that the dispute order made by Connor C on 23 April applied to the industrial dispute that was alleged to have occurred on 27, 28, 29 and 30 April 2004. 4 For the purpose of determining the merits of the application the Court invited the parties to put any supplementary submissions on 3 August 2006. The Court had earlier heard the whole of the evidence and submissions of the parties on the merit issue arising out of the summons as well as the jurisdictional issue before deciding the matter on jurisdictional grounds on 28 July 2005. 5 The facts are set out in the Court's first judgment. It is convenient to set them out again: 2 The alleged contraventions relate to alleged industrial action taken by the AWU, its respective officers and employees and members of the AWU employed at the coke oven batteries of the Port Kembla Steelworks of the prosecutor in support of claims for improved wages and working conditions. This was not a straightforward case, however, where the prosecutor sought dispute orders in relation to anticipated industrial action over an industrial matter, where orders were made proscribing such industrial action and where the orders were contravened: cf Bluescope Steel (AIS) Pty Ltd v Australian Workers Union, New South Wales (2005) 138 IR 324. 3 The summons has its origins in a dispute that occurred on 22 April 2004. On that day the prosecutor caused the dispute to be notified to the Industrial Registrar pursuant to s 130 of the Act involving the AWU and its members employed in the Coke Making Department of the prosecutor. The dispute notification stated: The dispute concerns strike action by production employees employed by the Company at the Coke Ovens of Port Kembla Steelworks. The employees are members of The Australian Workers' Union, New South Wales (AWU). The strike commenced at 8.00am today. The Company understands the strike is in protest following the dismissal of an employee. The Company also understands the employees and the AWU are next due to meet to consider their position in relation to the continuation of the strike at approximately 6.00pm tonight.

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The prosecutor sought an urgent compulsory conference. 4 The dispute was allocated Matter No IRC 2434 of 2004 and came before Connor C in compulsory conference at approximately 2.00 pm on 22 April in Wollongong. Connor C recommended that there be a return to work and the normal processes, namely, an application under Pt 6 of Ch 2 of the Act be followed. The Commissioner listed the matter for report back the following day, 23 April at 10.30 am. 5 A meeting of striking employees was held the next morning at about 6.00 am but the strike action continued. The prosecutor advised Connor C that when the matter came before him later that morning it intended seeking a certificate of attempted conciliation pursuant to s 135(2) and dispute orders under ss 137 and 138 of the Act. 6 Subsequently, on 23 April after hearing the parties, the Commissioner issued a certificate of attempted conciliation and made dispute orders. In his decision Connor C noted that the strike by employees in the coke oven batteries had been taken "in protest at the dismissal of Mr Methuisela Malufuka, an operator, for allegedly threatening behaviour towards a supervisor." The Commissioner stated: This particular strike is particularly inappropriate and unnecessary since the AWU has already brought its concerns over Mr Malufuka's dismissal to the attention of the Commission in the proper manner, ie through its Part 6 application. The strike can do nothing to assist in resolving the matter. It does nothing but place an unnecessary burden in the way of the effective resolution of the issue in dispute. 7 The Commissioner's certificate of attempted conciliation simply stated, "I certify that I have attempted conciliation in relation to the question, dispute of difficulty in this matter." The dispute orders were in the following terms: ORDER 1. The AWU, their respective officers and employees and their respective members employed at the coke oven batteries of the Port Kembla steelworks of Bluescope Steel must immediately cease and refrain from taking any form of industrial action, including any strike, stop work meeting, ban, limitation or restriction on the performance of work; 2. The AWU their respective officers and employees must immediately cease and refrain from organising, encouraging or inciting any industrial action (including any strike, stop work meeting, ban, limitation or restriction on the performance of work) contrary to the order in para 1 above. 3. The AWU and their respective officers and employees must take all reasonable and necessary steps to ensure that order in para. 1 is complied with. 4. This order shall come into effect on and from on (sic) 6.00pm on Friday, 23 April 2004 and shall remain in force until Monday 24 May 2004 unless, on formal application, it is varied or rescinded in the meantime. 8 In the result, the striking employees employed at the coke oven batteries returned to work at about 6.30 pm on 23 April 2004. 9 On 27 April 2004 a notice convening a stop work meeting of all members of the "combined steel unions" was circulated within the steelworks calling a stop work meeting at 7.30 am on 29 April 2004. The agenda of the meeting was: To hear an up-to-date report on the EBA negotiations

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The notifier sought an urgent hearing. 12 The dispute in Matter No IRC 400 of 2004 came before a Full Bench of the Commission on 29 April listed together with Matter Nos IRC 2167 and 2543 of 2004, which were associated matters. Matter No IRC 2434 of 2004, the dispute dealt with by Connor C in relation to the Malufuka dismissal, was not listed before the Full Bench and no mention was made of it in the proceedings before the Full Bench. The focus of the parties and the Full Bench was on the outstanding issues between the parties in the enterprise bargaining negotiations. 13 Arising out of the Full Bench proceedings, and on the recommendations of that Full Bench, the pickets were removed later that evening. Following a mass meeting of employees at about 7.30 am on 30 April 2004 there was a general return to work by all employees, including the employees in the coke oven batteries. 14 A decision was taken subsequently by the prosecutor to apply for the summons that is the subject of these proceedings. The prosecutor has taken the view that the dispute orders made by Connor C and which were current over the whole of the period from 23 April 2004 to 24 May 2004, were contravened by the AWU, its officers and employees and members employed in the coke oven batteries by virtue of their participation in the industrial action relating to enterprise bargaining claims and that such contraventions occurred on 27, 28, 29 and 30 April 2004. 15 Mr A Hatcher of counsel for the AWU raised a jurisdictional issue at the outset and that was essentially that the dispute orders did not apply to the industrial action on 27, 28, 29 and 30 April 2004 in connection with the enterprise bargaining claims. Consequently, it was contended, the Court had no power to make any findings relating to contravention under s 139 of the Act. 16 Notwithstanding Mr Hatcher 's threshold objection it was accepted that the Court should hear the whole of the evidence and submissions of the parties on the substantive issue arising out of the summons and the jurisdictional issue before deciding the jurisdictional issue and that was the approach adopted by the Court. 6 The judgment then proceeded to deal with the jurisdictional issue concluding, as I have said, that there was no jurisdiction. Consideration

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13 David John Bell gave evidence in the proceedings. Mr Bell was the prosecutor's Coke Making Manager. In his affidavit Mr Bell referred to a notice calling a stop work meeting that he said the prosecutor received on 27 April 2004. The notice, which had the date "2004-04-27" printed on it by what would appear to be a facsimile machine, was in the following form: 14 Darryl John Anderson also gave evidence in the proceedings. Mr Anderson was the Assistant Branch Secretary of the AWU at the relevant time. Mr Anderson said in his oral evidence that he was familiar with the notice calling the stop work meeting for 29 April and that Mr Gillespie, the Branch Secretary of the AWU, was responsible for calling the meeting. Mr Anderson said that it was a matter of general knowledge on 28 April that a stop work meeting had been called for 29 April. 15 The notice was also the subject of a hearing before a Full Bench of the Commission on 29 April and was referred to by Mr K Brotherson, appearing for the prosecutor as the means by which the meeting at the Wollongong Showground had been convened and that it had been "issued by Mr Gillespie of the AWU". Mr Gillespie represented the AWU in those proceedings before the Full Bench and he did not deny, or demur at, Mr Brotherson's submission that the notice was issued by him. 16 There is no doubt, in my opinion, that on 27 April 2004 the AWU, through its Branch Secretary, Mr Gillespie, convened a stop work meeting of all members of the combined steel unions (which included the AWU) for 7.30 am on 29 April 2004. It is clear from Mr Andrew Gorman's evidence that on 28 April he was also involved in organising the meeting and encouraging attendance at the meeting through the distribution of "flyers" to employees in various parts of the steel works. Mr Gorman was an officer of the AWU. 17 There was no real attempt in the proceedings to challenge the AWU's convening of the stop work meeting. However, it was submitted for the AWU that there was no evidence, or no sufficient evidence, to establish that the notice was distributed to the coke oven batteries or that, by the notice, members of the AWU employed in the coke oven batteries were encouraged or incited to participate in industrial action. 18 As to the first issue, it was the evidence of Mr Bell that employees in the coke oven batteries did not attend for work at the commencement of the day shift (6.00 am) on 29 April 2004. He said it was not until 9.30 am on 30 April 2004 that coke oven employees returned to work. Thomas O'Toole gave evidence in the proceedings. Mr O'Toole was the prosecutor's Oven Batteries Operations Manager for 4, 5 and 6 batteries. Mr O'Toole stated that on 29 April 2004 almost all of the operators at the coke oven batteries did not attend for work at the commencement of the day shift. Mr O'Toole also said that during the course of the day on 29 April he went to the Supervisor's office and saw a copy of Mr Gillespie's notice calling the stop work meeting.

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(c) any failure or refusal in connection with an industrial dispute to attend for work or to perform work, but does not include any action taken by employees with the agreement of their employer or any action taken by employers with the agreement of their employees. 23 The question remains as to whether the employees employed in the coke oven batteries were members of the AWU. This is an important consideration for the reasons given in Bluescope Steel Ltd (Formerly BHP Steel Limited) v The Australian Workers' Union, NSW (2004) 137 IR 176 where the Full Bench stated at [37]-[41]: 37 First, there is no doubt that a dispute order may be made directly against a union pursuant to s137(1)(a). It was not submitted by either party in this matter that the Commission did not have the power to make an order under that section against an industrial organisation. Section 222 of the Act establishes that a union that is registered under the Act is a "body corporate" and has perpetual succession. A body thus described would therefore come within any definition of "person" and particularly that in the Interpretation Act 1987 (see s21). The reference in s137(1)(a) to "a person" is a reference, in our view, to a legal person, and is not confined to a natural person. The word "person" in s137(1)(a) is broader than the word "employee", a difference which is clearly established by the distinguishing use of those words in ss137(1)(a) and (c) respectively. Whereas s137(1)(a) allows the Commission to make broad orders that a "person" cease or refrain from taking industrial action, s137(1)(c) specifies that the Commission may order an employer not to dismiss an "employee". Whilst "employee" falls within the broader category of "person", its use in the context of s137(1)(c) is narrower. 38 Further, the power to make dispute orders under s137 falls within Chapter 3 of the Act regarding "Industrial Disputes", a core element of which is disputation involving employers and industrial organisations, the usual parties in arbitration proceedings. The power to make dispute orders springs from the arbitration of disputes, and is identified in s136(1)(c) as being one of the powers available to the Commission in arbitration proceedings. Thirdly, s138(1) identifies those against whom dispute orders may be made, and includes a party to an industrial dispute. Section 130(1)(a) of the Act specifically provides that a union may be a party to an industrial dispute. Finally, a significant element of s139 regarding contravention of dispute orders focuses on the implications of such a contravention by an industrial organisation (see, for example, s139(3)(d)).

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41 Secondly, the practical operation of the principle is apparent in the present matter where the union was either responsible for the industrial action in question (by its direction and control) or the coordinating entity for its fulfilment (in the sense of convening meetings and being the centrepiece of the transmission of information and consideration of any action to be taken by the union's members). As earlier explained, given its corporate status, the AWU only has capacity to participate in industrial action through the actions of its officials, employees and members. Without jurisdiction under s137(1) to make an ancillary order against those officials and employees (such as order 2), the Commission could well be rendered powerless to intervene in and assist in the resolution of an industrial dispute, in circumstances where the union was a major protagonist in the dispute. Such a conclusion would be plainly contrary to general principle and the scheme of the Act. 24 The evidence pertinent to the question of whether, at the relevant time, employees in the coke oven batteries were members of the AWU includes the following: (1) Mr Anderson, in his evidence, accepted that those employees of the prosecutor engaged in production at the Port Kembla plant who were not members of the AWU would be the exception rather than the rule. Those employees engaged in production included employees in the coke oven batteries. (2) It may reasonably be inferred that the absence from work of employees in the coke oven batteries on 29 April was in response to the call from Mr Gillespie that all "members" of the combine steel unions stop work to attend the mass meeting. (3) The dispute concerning the dismissal of Mr Malufuka came before Connor C on 22 and 23 April 2004. Mr Anderson stated in his affidavit in these proceedings that, "as Organiser for the coke ovens site I appeared on behalf of the Union and its members at Dispute Notification proceedings before Commissioner Connor in matter number IRC 2434 of 2004 at Wollongong on 22 and 23 April 2004." (4) Mr Malufuka was a member of the coke oven battery crew. Mr Anderson represented Mr Malufuka. On 22 April the Commissioner recommended a return to work of the striking employees in the coke oven batteries. On 23 April Mr Anderson advised the Commissioner that he had conducted meetings of his "members" in the coke oven batteries and they had rejected the recommendation to return to work. Mr Anderson referred to the AWU's "members at the coke oven" as not being "altogether militant". In the transcript of proceedings Mr Anderson consistently referred to the employees in the coke oven batteries as members of the AWU. (5) Mr Anderson understood that the Commissioner was being asked to direct the dispute orders to, inter alia , members of the AWU employed in the coke oven batteries and whilst the dispute orders were opposed by the AWU, Mr Anderson did not, at any stage of the proceedings, indicate that there were no members of the AWU employed in the coke oven batteries against whom such an order could be made. (6) In his affidavit in the proceedings Mr Anderson consistently referred to his dealings with employees in the coke oven batteries in connection with the Malufuka dispute as dealings with "members". (7) In his affidavit Mr Anderson referred to his discussion with "members" following the stop work meeting; referred to "members" taking a decision to form a picket line; and, referred to "members" manning the picket line. Mr Gorman in his affidavit also referred to "members" manning the picket line. (8) Both Mr Anderson and Mr O'Toole identified persons manning the picket line as employees employed the coke oven batteries. (9) Mr Bell in his evidence identified Mr Formosa at the picket line on 29 April. Mr Bell said he was aware that Mr Formosa was the AWU delegate when the usual delegate was on leave. Mr Burns, another AWU delegate, was also at the picket line. The picket was described in signs in the vicinity of the picket as "Official Union Picket". (10) The delegates of the AWU may be regarded as the representatives of the Union in the workplace for the purpose of rule 60 of the AWU's Rules. Rule 60 requires such representatives to be members of the Union.

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31 The stop work meeting was called to hear a report on enterprise bargaining negotiations and outsourcing. It was Mr Gorman's evidence that the stop work meeting was not satisfied with the prosecutor's participation in negotiations and a resolution was passed to hold a 24-hour stoppage. Where the absence of AWU members from work in the coke oven batteries coincided with the stop work meeting and the subsequent stoppage, and where employees in the coke oven batteries participated in the picket, the probability that coke oven battery employees, members of the AWU, engaged in industrial action on 29 April 2004 is so high that "the contrary cannot reasonably be supposed": Martin v Osborne per Dixon J. 32 Whilst it is clear that members of the AWU engaged in industrial action on 29 April, Mr A Hatcher for the AWU challenged the proposition that the AWU per se could engage in industrial action and submitted that it would only be in rare circumstances that an officer of a union could be regarded as engaging in industrial action. There was no evidence that employees of the AWU were involved in the events of 27-30 April, so I do not propose to refer henceforth to such employees. 33 It is apparent from the decision of the Full Bench that I earlier quoted that a union may be responsible for the actions of its members and that where an order is made against the members of a union, there is power to make an ancillary order requiring a union to take steps to have its members comply with the primary order. It is also apparent that the Full Bench considered that an order might properly be made against a union requiring that union, as distinct from its officers and members, to cease and refrain from taking industrial action. 34 This would appear to flow from the Full Bench's view about the corporate status of unions and the role prescribed for them under the Act and, in particular, that the Commission is empowered to make orders under s 137(1)(c) of the Act that a "person" cease or refrain from taking industrial action. Further, at [40] the Full Bench referred to a union being a party to a dispute and therefore at its centre, and at [41] the union being "either responsible for the industrial action in question (by its direction and control) or the coordinating entity for its fulfilment…" 35 The Full Bench also referred to a decision of Hungerford J in Public Employment Office v The NSW Fire Brigade Employees Union [1999] NSWIRComm 556. His Honour, in that case, made orders under s 137 of the Act directing the union to cease all industrial action by a certain time and further directing that the union and its members refrain from taking industrial action during a specified time frame. The Full Bench considered that his Honour was entitled to make the orders he did: [44].

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41 The stop work meeting resulted in further industrial action in the form of a strike, which did not cease until a return to work was effected on 30 April. There was no evidence that the AWU, its officers or employees took any steps, let alone "all reasonable and necessary steps", to ensure there was compliance with Order 1 during the stop work meeting or the early part of the ensuing strike. This was contrary to Order 3. It was not until the Full Bench proceedings later in the day on 29 April when union officials, including Mr Gillespie, indicated to the Full Bench that they would take steps to secure a return to work by striking employees. Following a meeting at about 7.30 am on 30 April, the striking workers did return to work, with normal work resuming in the coke oven batteries at about 9.30 am on 30 April. 42 I will return to the steps taken by union officials to end the strike action shortly. But before doing so I should refer to the evidence regarding Mr Anderson and his presence at, and active role in organising the conduct of persons on, the picket on 29 April. Mr A Hatcher for the AWU submitted the picket did not constitute industrial action and, therefore, that it could not be said the AWU, its officers or employees were engaged in organising, encouraging or inciting industrial action in so far as the activities of the picket were concerned. 43 It seems to me, however, that the picket was an activity undertaken during the period the relevant employees absented themselves from work for the purpose of striking. By his presence and conduct on the picket line it may reasonably be inferred that Mr Anderson was organising and encouraging a continuation of the industrial action; that he was organising and encouraging employees to picket, the corollary of which was a failure or refusal by the striking employees to attend for work on 29 April. 44 In the cross-examination of Mr Anderson the following exchange occurred: Q. So in effect you organised the manner in which the behaviour of the picket line with respect to cars gaining access was to occur? A. I was asked. Q. You were asked, by whom? A. I was asked by members what they should say. Q. And then you told people, did you? A. Yes. 45 The fact that Mr Anderson, after receiving a telephone call from Mr Gillespie, lifted the picket by informing the picketers that it was over and they could go home is a strong indication that the AWU, through Mr Gillespie and Mr Anderson, were controlling the picket, at least in so far as members of that Union were concerned. 46 A question did arise as to whether Mr Anderson himself was engaged in industrial action because of his attendance at and participation in the picket. The mere fact that Mr Anderson was present on the picket line does not lead to a conclusion that he, as a person, was engaging in industrial action. Moreover, there was insufficient evidence to prove that Mr Anderson participated in conduct that restricted, limited or delayed the performance of work in any meaningful sense such that it could be described as industrial action according to the definition in the Dictionary to the Act. Nor could it be said that Mr Anderson engaged in strike action. 47 As to the prosecutor's allegations regarding 30 April, it is apparent from the transcript of proceedings before the Full Bench that at some point on 29 April the unions representing the striking employees indicated their intention to secure a return to work and that this could be achieved following a further mass meeting the following morning. Mr Anderson said in his evidence that he received a phone call about 5.00 pm or 5.30 pm on 29 April to lift the picket. From that point I consider the AWU took "reasonable and necessary steps" to ensure compliance with Order 1 of the dispute order: see Australian Workers' Union (NSW) v Bluescope Steel (AIS) Pty Ltd (2006) 151 IR 153 at [54]. 48 The Court makes the following findings: (1) On 27, 28 and 29 April 2004, contrary to Order 2 of the dispute orders made by Connor C on 23 April 2004, the AWU and its officers did not cease and refrain from organising and encouraging industrial action. (2) On 27, 28 and 29 April 2004, contrary to Order 3 of the dispute orders made by Connor C on 23 April 2004, the AWU and its officers did not take all reasonable and necessary steps to ensure compliance with Order 1 of those orders. (3) On 29 April 2004, contrary to Order 1 of the dispute orders made by Connor C on 23 April 2004, the AWU and its members employed in the coke oven batteries, did not cease and refrain from taking industrial action. (4) On 27 and 28 April 2004 the AWU and its officers acted in contravention of the dispute orders made by Connor C on 23 April 2004. (5) On 29 April 2004 the AWU its officers and its members employed in the coke oven batteries, acted in contravention of the dispute orders made by Connor C on 23 April 2004. 49 There is one further matter I should address. At no time did the AWU or its officers bring to the attention of AWU members after 23 April 2004 the dispute orders made by Connor C that day. This supports the finding that the AWU and its officers failed to take all reasonable and necessary steps to ensure compliance with Order 1 of the dispute orders on 27, 28 or 29 April 2004. 50 However, there was evidence that at least Mr Anderson, Mr Gorman and Mr Formosa held a belief that the dispute orders applied only to the dispute involving Mr Malufuka and not to the dispute that might be regarded as having commenced on 27 April 2004 relating to enterprise bargaining and outsourcing, notwithstanding the fact that the dispute order covered the period over which the second dispute occurred. 51 There can be no question that the dispute orders applied to the events of 27 to 29 April 2004. So much has been put beyond doubt by the decision of the Full Bench earlier referred to. A question may arise, however, as to whether the evidence relating to the beliefs held by Messrs Anderson, Gorman and Formosa should attract the application of s 139(3)(a) of the Act, which is in the following terms: 3) The Commission may, after hearing any person who answered the summons to show cause and considering any other relevant matter, do any one or more of the following: (a) dismiss the matter if it finds that the dispute order was not contravened or if it finds that the circumstances were such that the Commission should take no action on the contravention, … 52 Although brief submissions were made by the parties regarding the application of s 139(3)(a), I do not propose to deal with the matter at this stage. I propose to list Matter No IRC 2779 of 2004 for directions at 9.30 am Thursday 31 August 2006 when a date will be fixed for hearing for the purpose of considering what action should be taken pursuant to s 139(3) of the Act in relation to the contraventions of the dispute orders. _____________________________

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