23 This appeal hinges on the statutory interpretation of s 137(1)(a) of the Act; in particular, whether the power to make orders under that section is limited to the specific dispute before the Commission. In order to answer that question, we must first examine the legislative context of the provision: see Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at [42]-[43] and Fox v GIO Australia Ltd (2002) 120 IR 401 at [42]. That context depends on the terms of the Act and does not include any constitutional considerations of ambit as might concern the reach of s 51(xxxv) of the Constitution: see Federated Municipal and Shire Council Employees' Union of Australia, New South Wales Division v Energy Australia (1999) 90 IR 311 at 321-322.
24 The general nature of the power to make dispute orders under s 137 (and the context and purpose of such orders) was considered by the Full Bench in Sydney Water Corporation and Australian Services Union (New South Wales and Australian Capital Territory Branch) (2005) 146 IR 388 at [36]-[37]:
36 While we agree that the tests formulated in Castlemaine Tooheys as adopted in Hill (on the submissions of both parties) offer some useful guidance for the exercise of power to grant interim orders, it would be wrong to apply, strictly and inflexibly, what are essentially private law and equity principles to the full range of industrial disputes under Chapter 3 of the Act, many of which fall into the realm of a jurisprudence not only more closely aligned to public law but having its own particular features. Industrial disputes may cover a spectrum from what is essentially an isolated, ordinary unfair dismissal case, to an industrial dispute in which dismissals or threatened dismissals are subsidiary, and then to a full-blown collective dispute involving stoppages, lock-outs, and mass dismissals. Across most of the spectrum, there will be factors at play which cannot be accommodated by the Hill tests, and the further the situation approaches the collective dispute at the end of the relevant spectrum, the more strained the application will become. The Hill tests will usually be applicable to applications brought under s 89(7) of the Act.
37 The Commission, in using its powers under the Act to conciliate, arbitrate and generally facilitate the resolution of industrial disputes, is engaged in an undertaking considerably removed from the adjudication of individual civil grievances. In furthering the objects of the Act (including the promotion of efficiency and productivity in the economy of the State and providing for the resolution of industrial disputes in a prompt and fair manner with the minimum of legal technicality), it is vital that the Commission recognise the broad discretion granted by the Act to fashion appropriate relief by reference to the merits of the industrial dispute itself and the steps necessary to resolve it. This will involve a variety of considerations, some of which may include those deriving from private litigation, but more usually will include the public interest in managing the industrial dispute in a fair and just manner with minimum disruption and disputation.
25 The Full Bench's observations concerning the particularity of industrial jurisprudence (most notably the interplay between the private rights or grievances in issue and the public interest in managing industrial disputes in a fair and just manner with minimum disruption) and the vital importance of the broad discretion granted by the Act are at odds with the AWU's submissions in this case urging a confined interpretation of s 137(1)(a). Nor does a confined interpretation, dependant upon drawing boundaries around a particular industrial dispute, sit well with the Full Bench's description of the spectrum of industrial disputes. The idea of a spectrum encompasses not only the broad range of industrial disputes, but also the fluidity or potential escalation of disputes. Disputes can begin at one end of the spectrum and advance towards the other end.
26 Pursuant to s 146(2), the Commission is obliged to take into account the public interest in the exercise of its functions and, for that purpose, must have regard to the objects of the Act, the state of the economy of New South Wales and the likely effect of its decisions on that economy. The notion that the power to grant dispute orders under s 137(1)(a) should in some way be limited by the way the parties, at a particular time, define the dispute - for example, by way of the notification - reverts to concepts of private law (such as the conduct of proceedings in courts of strict pleadings) which cannot be reconciled with the broad, public objects of the Act, including the promotion of efficiency and productivity in the economy of the State, providing for the resolution of industrial disputes in a prompt and fair manner with the minimum of legal technicality and general public interest notions. It also rests upon the notion that an industrial dispute is static, and confined to issues which are readily identifiable before full consideration of the merits of the matter. Often this is not the case. Many industrial disputes have the potential to conflagrate and the Commission's broad discretionary powers - including the power to make orders under section 137(1)(a) - are vital to prevent such a conflagration. The ability, in arbitration, to order industrial action to cease - to enable the parties to resolve the dispute efficiently and fairly under the auspices of the Commission rather than leaving the matter to be determined by the economic and industrial power of the participants without reference to the public interest - is one of the most important features of the system created by the Act.
27 It is in that context that we turn to consider the terms of s 137. We agree with the submissions of BlueScope that there is nothing in the language of the section which limits the power to make orders under s 137(1)(a) so that orders "should relate only to the industrial dispute in respect of which they were made". The preamble in s 137(1) describes the precondition necessary for the exercise of the powers granted by the section - that the Commission must be dealing with an industrial dispute in arbitration proceedings - but does not circumscribe the scope of the powers. The use of the indefinite article, rather than the definite article, indicates that there is no distinct limitation or clear definition of a particular industrial dispute in the preamble.
28 Paragraphs (a)-(d) of s137(1) provide limitations of varying degrees concerning the scope of the orders which may be made. Although paragraphs (b), (c) and (d) all expressly require a connection to the industrial dispute in arbitration proceedings, paragraph (a) does not. This circumstance suggests that, as discussed above, Parliament intended the power conferred by s 137(1)(a) to be broader, to encompass the possibility of a general order prohibiting all industrial action for a fixed period of time. Nor can a limitation of the type contended by the AWU be found in the definition of "industrial action", which has been drafted broadly to include "a strike by employees". Again, the use of the indefinite article is noteworthy. Finally, although ss 137(3) and 138 impose further limitations on the power to make dispute orders, neither has the effect of limiting s 137(1)(a) to orders relating only to the industrial dispute in respect of which they were made. Section 137(2) does not limit the operation of s 137(1)(a), but merely confirms the long-standing jurisprudence of the Commission that it may refrain from dealing with the broader subject matter of a dispute (for example, the dismissal of an employee) until it has dealt with industrial action.
29 Similarly, there is no basis to imply a limitation of this kind. Not only would it be inappropriate to read s 137(1)(a) by imposing limitations which are not found in the express words (because it is a provision granting power to a court: see, for example, Fox v GIO Australia Ltd (2002) 120 IR 401 at [71] and Crown Employees' (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award (2000) 102 IR 202 at [52]), it would be contrary to the objects of the Act and to the purpose of s 137 as discussed above. We agree with the submissions of BlueScope that "the undermining of ss 141 and 142" does not provide such a basis. The fact that future industrial action may be prohibited by a dispute order made under s 137(1)(a) does not necessarily preclude future industrial disputes from the conciliation phase. Sections 141 and 142 seem more directed at "industrial action" but conciliation is also designed to deal with that industrial action whether on a narrower or broader basis.
30 We agree that conciliation is the primary and threshold dispute-settling mechanism under the Act, and should not lightly be determined at an end: see the Full Bench decision in CFMEU v Newcrest Mining Limited (2005) 139 IR 50 at [19]. This is reflected by ss 141 and 142. However, it is wrong to suggest that conciliation is confined to the immediate subject matter of the dispute; as we discussed in the context of disputes orders, disputes (or their subject matter) are ambulatory in nature.
31 The submissions advanced by the AWU seem to suggest that conciliation could not have had the same scope or similar subject matter as the dispute orders, leading to an issue concerning natural justice. But there is no reason to reach this conclusion on the evidence or based on our experience of such matters. Conciliation is more likely to have dealt with broader issues concerning the dispute or other potential disputes.
32 Having rejected the AWU's narrow interpretation of s 137(1)(a), it is not necessary for the purposes of this appeal to determine the scope of the industrial dispute notified in Matter No IRC 2434 of 2004. We do, however, note that based on the evidence before us it appears that the dispute was, in fact, broader than an isolated strike in response to the dismissal of Mr Malufuka, or took place in the context of the broader enterprise bargaining dispute concerning (for the unions' part) general job security and (for the company's part) continuous production. In our view, there was a real connection between the strike action in Matter No IRC 2434 of 2004 and the broader enterprise bargaining dispute. We note, in particular, that the dispute notification referred, baldly, to "strike action by production employees employed by the Company at the Coke Ovens Batteries" and stressed the importance to BlueScope of the continuous operation of the Coke Ovens Batteries. The critical nature of any industrial action of this type to the dispute was reflected in the decision of Connor C that: "It, of course, goes without saying that there should be continuous operations for the coke ovens which are such an integral part of the steelworks operations that any problems in production in that area must have a significant impact across the whole steelworks, especially over the forthcoming Anzac Day holiday period" and in the breadth of the orders made.
33 We accept the submissions of BlueScope that there was no denial of natural justice. Both parties were present and understood that the issue being canvassed before Connor C was the operation of the coke oven batteries unhindered by any industrial action. In particular, the AWU's representative understood the importance to BlueScope of the continuous operation of the coke oven batteries (not the operation of the coke oven batteries free from this particular strike) and understood that this was a factor influencing Connor C's decision. This is clear from the fact that Connor C made the order for a shorter term than that requested by BlueScope on the basis that "the coke ovens have been relatively free from industrial action in recent times".
34 Finally, we note that, although it was not raised by counsel for either party, there is a strong argument that Boland J had no power to dismiss BlueScope's summons because of the operation of s 179. In Tempo Services Ltd v Strezouski (2005) 146 IR 411, the Full Bench held at [62] that a member of the Commission in Court Session (now the Industrial Court) had no power to grant declaratory relief in circumstances where the grant would involve an appeal, a review, a quashing or a calling into question of an award or held award made by the Commission. Furthermore, the Full Bench stated that even if there had been jurisdiction it would have been an inappropriate exercise of discretion to permit a collateral attack on an award in proceedings for declaratory relief pursuant to s 154 of the Act. In this case, given the breadth of s 179 (which is not restricted to awards, but extends to any decision, purported decision or order of the Commission), it is arguable that, by accepting AWU's jurisdictional argument and consequently dismissing BlueScope's summons, Boland J permitted the AWU to "appeal against, review, quash or call into question" an order of the Commission contrary to s 179(10)(b). The appropriate manner for the AWU to challenge the scope of Connor C's orders was by way of appeal to the Full Bench of the Commission.
35 It remains to add an observation concerning the dismissal of Mr Malufuka. We feel compelled to correct any suggestion that dismissals, in the course of an industrial dispute, may not be dealt with until the dispute is resolved, or may only be dealt with by way of proceedings under Pt 6 of the Act. It was, in fact, open to Connor C, properly, at the time of making the dispute orders to deal with the subject matter of the dismissal in the context of the industrial dispute proceedings, although it was an appropriate exercise of discretion in this case to refrain from doing so until the strike was over.
Orders