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

LEGISLATION CITED: Industrial Relations Act 1996, ss 137 138 141 142 146(2) 179

Bluescope Steel (AIS) Pty Ltd v Australian Workers' Union, New South Wales [2005] NSWIRComm 260 Bluescope Steel Ltd v Australian Workers Union, New South Wales (2004) 137 IR 176 Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 CFMEU v Newcrest Mining Limited (2005) 139 IR 50 Commander Australia Limited v Kerr (2004) 134 IR 160 CASES CITED: Crown Employees' (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award (2000) 102 IR 202 Federated Municipal and Shire Council Employees Union v Energy Australia (1999) 90 IR 311 Fox v GIO Australia Ltd (2002) 120 IR 401 Knowles v Anglican Church Property Trust (1999) 95 IR 380 Sydney Water Corporation and Australian Services Union (New South Wales and Australian Capital Territory Branch) (2005) 146 IR 388 Tempo Services Ltd v Strezouski (2005) 146 IR 411

APPELLANT Mr RJ Buchanan QC and Mr Warren of Counsel SOLICITOR: Mr David Lloyd Blake Dawson Waldron LEGAL REPRESENTATIVES: Lawyers

RESPONDENT: Mr A Hatcher of counsel SOLICITOR: Ms Roshana May Slater & Gordon Lawyers

CORAM: WRIGHT J, President WALTON J, Vice-President MARKS J

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

Application by BlueScope Steel (AIS) Pty Ltd for leave to appeal and appeal against the judgment of Justice Boland given on 28 July 2005 in Matter No. IRC 2779 of 2004.

1 This appeal concerns whether dispute orders made pursuant to s 137 of the Industrial Relations Act 1996 ("the Act") in the context of one industrial dispute can apply to industrial action in a subsequent industrial dispute between the same parties. 2 The relevant facts may be stated briefly. 3 On 22 April 2004, members of the Australian Workers' Union, New South Wales Branch ("the AWU") employed by BlueScope Steel (AIS) Pty Ltd ("BlueScope") at the coke oven batteries of its Port Kembla Steelworks went on strike in protest at the dismissal of a fellow employee, Mr Malufuka. BlueScope notified the Industrial Registrar of an industrial dispute pursuant to s 130 of the Act (Matter No IRC 2434 of 2004). The notification included the following sentences: The dispute concerns strike action by production employees employed by the Company at the Coke Oven Batteries 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.

... The strike, if it continues, will result in serious adverse operational consequences for the Company given the Coke Oven Batteries must be operated on a continuous basis. 4 Commissioner Connor, having issued a certificate of attempted conciliation on 23 April 2004, granted BlueScope's application for dispute orders, stating in his decision (among other things): 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. 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 that matter. It does nothing but place an unnecessary burden in the way of the effective resolution of the issue in dispute. and, later: Also I propose to accede to Mr Brotherson's request and make the dispute orders he seeks in terms of s.136(1)(c). I decline to make those dispute orders extend for three months, however. As Mr Anderson pointed out, the coke ovens have been relatively free from industrial action in recent times and, in those circumstances, I believe that a shorter period for the orders is justified in this case. 5 The dispute orders made by Connor C 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. 6 Following a meeting at 6pm on 23 April 2004 of employees who worked at the coke oven batteries and Mr Daryl Anderson, AWU official, the striking employees returned to work at about 6.30pm that day. 7 On 27 April 2004 there was a stop-work meeting of all members of the "combined steel unions" at the steelworks in relation to enterprise bargaining issues. After the meeting some employees established picket lines and the remaining employees (including those employed in the coke oven batteries) commenced strike action. Mr Anderson was present at the picket line. 8 BlueScope notified the Industrial Registrar of an industrial dispute relating to the enterprise bargaining negotiations (in newly created Matter No IRC 2543 of 2004) which was listed as a matter of urgency, at BlueScope's request, with Matter No IRC 400 of 2004 (earlier dispute proceedings between the same parties regarding the enterprise bargaining negotiations). No mention was made of Matter No IRC 2434 of 2004. 9 When those proceedings came before the Full Bench in Wollongong on 29 April 2004, the Full Bench observed: Upon receipt of the notification we formed the view that the issues raised by the notification were both serious and indicating a further deterioration, in our view, of what may be described as local industrial relations. 10 The key issues in dispute arising from the enterprise bargaining were whether the proposed award would prohibit the dumping of hot metal (described by the AWU as the "supply agreement") and the dispute settling procedure, which the AWU regarded as being inextricably linked. During the proceedings before the Full Bench, it became clear that the unions were particularly concerned about security of employment. 11 Mr A Gillespie, Assistant State Secretary of the AWU, stated in his submissions to the Full Bench: The issue between the parties results in terms of the supply arrangements in place and your Honour is familiar with those, and also the issue about disputes settling procedure or disputes avoidance procedure -as the union puts - it needs to clearly have some semblance of a status quo arrangement where in fact it replaces or puts both parties on equal footing industrially. Currently, because of the supply arrangement - since that has been put in place - there has been a quickening of the deterioration of industrial relations between the unions and the company in terms of industrial relations because of BHP's more aggressive attitude towards change, towards dismissals and towards a whole range of issues. And later: My members feel they have no job security. The enterprise agreement offers them nothing. They can outsource at the blink of an eye and tell people later on that - if you don't find a job in 12 months then we are going to unjustly make you redundant. 12 Mr Phillips, who appeared on behalf of the Australian Metal Workers' Union, made these observations as to why the unions had taken industrial action when the contentious issues were already programmed for arbitration before the Commission: My gut feeling is the decision this morning was taken out of pure frustration. It has been floated around this afternoon, but that is the case. The members have had enough. The company has brought in a consultant, I think Proudfoot, looking for a 20 per cent cut in manning. The company can accept that or deny it. We know that they have been doing time and motion studies. When they don't get cooperation from the employees they do it any rate. We have continual outsourcing being done - which I don't want to go into now because it has been brought to the Commission's attention already many times. ... I understand we have had 19 people sacked in the last few months for breaches of cardinal rules. Myself and Mr Tomlins yesterday had two people suspended on a shift - because the company agreed it was not an intentional breach, but their cardinal rule said they had to take action. There are lots and lots of things like that happening. 13 Following recommendations of the Full Bench, the pickets were removed on the evening of 29 April 2004 and, following a mass meeting of employees at 7.30am on 30 April 2004, all employees returned to work. 14 Asserting that the industrial action on 27, 28, 29 and 30 April 2004 contravened the dispute orders of Connor C, BlueScope applied for a summons against the AWU pursuant to s 139 of the Act to show cause why the Court should not take action for the contravention. In Bluescope Steel (AIS) Pty Ltd v Australian Workers' Union, New South Wales [2005] NSWIRComm 260, Boland J dismissed BlueScope's application, finding 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 issues. BlueScope now seeks leave to appeal and appeals that decision. The Legislation

15 The following definitions and sections of the Act are relevant to our consideration of the judgment at first instance:

The definitions of industrial action and industrial dispute in the Dictionary to the Act are as follows: industrial action means a strike by employees or a lock-out by an employer, and includes: (a) a practice relating to the performance of work, adopted in connection with an industrial dispute, that restricts, limits or delays the performance of work, or (b) a ban, limitation or restriction affecting the performance of work, or the offering or acceptance of work, that is adopted in connection with an industrial dispute, or (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. industrial dispute means a dispute (including a question or difficulty) about an industrial matter, and includes the following: (a) a demarcation dispute, (b) a threatened or likely industrial dispute, (c) a situation that is likely to give rise to an industrial dispute if preventative action is not taken.

(1) General definition In this Act, industrial matters means matters or things affecting or relating to work done or to be done in any industry, or the privileges, rights, duties or obligations of employers or employees in any industry.

(2) Examples Examples of industrial matters are as follows: (a) the employment of persons in any industry (including the employment of minors, trainees, apprentices and other classes of employees), (b) the remuneration (including rates of pay, rates for piece-work and allowances) for employees in any industry, (c) the conditions of employment in any industry (including hours of employment, qualifications of employees, manner of work and quantity of work to be done), (d) part-time or casual employment (including part-time work agreements), (e) the termination of employment of (or the refusal to employ) any person or class of persons in any industry, (f) discrimination in employment in any industry (including in remuneration or other conditions of employment) on a ground to which the Anti-Discrimination Act 1977 applies, (g) procedures for the resolution of industrial disputes, (h) the established customs in any industry, (i) the authorised remittance by employers of membership fees of industrial organisations of employees, (j) the surveillance of employees in the workplace.

(1) The Commission may make the following kinds of dispute orders when dealing with an industrial dispute in arbitration proceedings: (a) The Commission may order a person to cease or refrain from taking industrial action. (b) The Commission may order an employer to reinstate or re-employ any one or more employees who were dismissed in the course of the industrial dispute or whose dismissal resulted in the industrial dispute. (c) The Commission may order an employer not to dismiss employees in the course of the industrial dispute if the employer has threatened to do so. (d) The Commission may order a person to cease a secondary boycott imposed in connection with the industrial dispute.

(2) If employees are taking industrial action in connection with the industrial dispute, the Commission may order the employees to cease taking that industrial action before it makes any other kind of dispute order against the employer. (3) A dispute order may not provide for the payment of compensation, lost remuneration or any other amount. 138 Making of dispute orders

(1) A dispute order may be made only against: (a) a party or likely party to the industrial dispute, or (b) a member, officer or employee of an industrial organisation that is such a party or likely party, or (c) a person engaged, or likely to be engaged, in a secondary boycott in connection with the industrial dispute.

(2) A dispute order: (a) must clearly identify the persons against whom the order is made and who are bound by the order, and (b) must state a time within which the order is to be complied with or state a period during which it remains in force, and (c) may be varied or revoked by the Commission at any time.

(3) If an employee is reinstated or re-employed under this Part, the Commission may order that the period of employment of the employee with the employer is taken not to have been broken by the dismissal. 141 Actions in tort while Commission attempting to conciliate dispute not actionable

(1) A person may not bring or continue an action in tort to which this Part applies while the industrial dispute to which the action relates is subject to conciliation by the Commission. (2) For the purposes of this section, an industrial dispute is subject to conciliation if: (a) the Commission has been notified under this Chapter of the dispute or has decided on its own initiative to resolve the dispute, and (b) a certificate of attempted conciliation has not been issued by the Commission under this Chapter in respect of the dispute.

(3) For the purposes of this section, an industrial dispute is not subject to conciliation if the Commission has decided to dismiss or otherwise discontinue the proceedings concerned. (4) A certificate issued by a member of the Commission as to whether a specified industrial dispute is subject to conciliation by the Commission is admissible in evidence in any proceedings in which this Part is in issue and is evidence of the matters stated in the certificate. The decision at first instance

16 In summary, Boland J made the following findings:

The scope of the industrial dispute in Matter No. IRC 2434 of 2004 was a strike in protest at Mr Malufuka's dismissal (and at the attitude or conduct of certain supervisors) and/or in support of his reinstatement.

It was not apparent that there were common elements to the two disputes; if that were the case, it was open to BlueScope to at least suggest this to AWU witnesses in cross-examination, which it did not do.

The Commission is empowered by s 137(1) to make dispute orders "when dealing with an industrial dispute". Connor C had not dealt with, and was not dealing with, the dispute that erupted over enterprise bargaining. Nor did he give any consideration to it. He could not, therefore, make a dispute order in respect of that dispute.

An interpretation which limits the power to make orders under s 137(1)(a) to the specific dispute before the Commission is supported by the provisions of Part 1 of Chapter 3 of the Act (which governs the conciliation and arbitration of industrial disputes). The entire process leading up to arbitration (and hence the power to make dispute orders) - from notification of a dispute under s 130 through conciliation and certificate of attempted conciliation to arbitration - is posited on the existence of a particular dispute. This is reflected in the drafting: ss 130, 131, 132, 133, 134, 135 and 136 of the Act each refer to " an industrial dispute" or " the industrial dispute". Moreover, the definition of industrial dispute itself is limited by factual specificity: the dispute must be about "an industrial matter". The terms of section 138 also indicate a concern on the part of the legislature that dispute orders should relate to the industrial dispute in respect of which they were made.

The effect of Pt 3 Ch 3 (which includes s141) is to provide immunity from prosecution for certain types of tort action where industrial action is taking place during conciliation. If BlueScope's interpretation of s 137(1)(a) is correct, that immunity is undermined because dispute orders may be made proscribing industrial action and thereby leaving s141 without any work to do.

The whole purpose and intent of Pt 1 of Ch 3 is to make conciliation the primary method of resolving industrial disputes. Arbitration is a last resort. Should BlueScope's approach be correct, this purpose would be undermined as industrial disputes could be the subject of dispute orders before conciliation and even before the dispute came into existence.

Acceptance of BlueScope's approach would amount to a denial of natural justice. Members of the Commission must have a proper basis for making a dispute order (attracting, as they do, potentially serious consequences for contravention). A respondent is entitled to put its case and it may be, in the exercise of the Commission's discretion after hearing both parties, no such order is made. Grounds of Appeal

17 The grounds of appeal listed in BlueScope's application may be summarised, broadly, as follows:

Boland J erred in finding that a dispute order was only valid insofar as it related to the industrial dispute that gave rise to its making (and, consequently, that the only type of industrial action which may be constrained by a dispute order was industrial action related to the subject matter of the industrial dispute which gave rise to the dispute orders);

The interpretation of s 137 adopted by Boland J was contrary to the scheme and intent of the Act and renders the Commission powerless to direct enforceable orders against parties which prohibit future industrial action;

Boland J erred in finding that s 138 restricted the kind of dispute orders that could be made pursuant to s 137;

Boland J erred in finding that Pts 1 and 2 of Ch 3 restricted the application of dispute orders to the dispute then before the Commission; and

Boland J erred in apparently considering the term "industrial dispute" to be synonymous with the term "industrial action". Leave to Appeal

18 The AWU accepted that, given the subject matter of BlueScope's application, it would be open to the Court to grant leave to appeal in accordance with Knowles v Anglican Church Property Trust (1999) 95 IR 380 at 382. 19 We agree with BlueScope's submissions that this appeal raises an important question of construction about one of the Commission's fundamental dispute-settling powers and that it is in the public interest that the jurisdiction and powers of the Commission under s 137 be examined by the Full Bench of the Industrial Court. 20 On that basis, leave to appeal is granted. Submissions

21 In summary, BlueScope made the following submissions:

When he made the dispute orders, Connor C stated, generally: There should be continuous operations for the coke ovens which are such an integral part of the steelworks operations. and, in relation to the period of operation of the orders: The coke ovens have been relatively free from industrial action in recent times and, in those circumstances, I believe that a shorter period for the orders is justified in this case.

It is clear from his decision that Connor C intended the dispute orders to apply generally, and to be limited by nothing but their period of operation. This did not involve a denial of natural justice. At the time, Mr Anderson, on behalf of the AWU, clearly understood that BlueScope was seeking - and the Commission was contemplating - a complete ban on any form of industrial action for the defined period. He addressed the Commission with a view to limiting the period but there was no suggestion that the orders should be (or would be understood to be) limited in scope. The orders are broadly drafted, and, on a plain reading, apply to the industrial action on 27, 28, 29 and 30 April 2004. There is no basis to read the orders down to restrict them to the particular dispute.

The content of dispute orders, the period of their operation, and whether they apply to all industrial action are matters entirely within the discretion of the Commission. The Commission also has a discretion how to deal with contraventions (which includes a discretion to take no action) pursuant to s 139(3)(a). The fact that discretion exists at the point of making orders, and at the point of considering their observance, is quite a different matter from identifying limitations on jurisdiction.

Boland J erred in concluding that the power to make orders under s 137 was limited so that the orders "should relate only to the industrial dispute in respect of which they were made". No such limitation appears in s 137(1)(a) nor in the definition of "industrial action". Section 138 limits the persons bound by a dispute order but does not limit the terms of that order. Such a limitation would have to be implied.

It is only permissible to read limitations into a statute in order to serve a clear parliamentary objective ( Commander Australia Limited v Kerr (2004) 134 IR 160 at [46]; Bluescope Steel Ltd v Australian Workers Union, New South Wales (2004) 137 IR 176 at [91]-[94]; Fox v GIO Australia Ltd (2002) 120 IR 401 at [71]). The limitation resulting from Boland J's interpretation seriously restricts the ability of the Commission to deal effectively with existing and potential industrial disputation and encourages reliance on technicality and semantics. If Boland J's interpretation is affirmed, the Commission would be stripped of the power (which has been important in some cases with respect to the steelworks) to be proactive to ensure the orderly conduct of industrial relations where necessary.

Considerations of ambit are not relevant here. The matter before the Commission turns on statutory language, not the reach of the constitutional power under s 51(xxxv) of the Australian Constitution. Although context is important, the primary task is to interpret the actual language of the statute.

The protection granted by ss 141 and 142 to industrial action during conciliation does not apply to actions taken by the Commission itself. Accordingly, the fact that the Commission has authority, and may choose to exercise it, does not undermine the protections granted by s 141.

If the appeal is upheld, the matter should be remitted to Boland J to determine whether the dispute orders were contravened on the days claimed, and, if so, to determine what steps should be taken as a result. 22 The AWU made the following submissions (in summary):

BlueScope has not, in this appeal, challenged the findings of fact which underpinned the analysis of Boland J including the scope of the dispute in relation to which Connor C made the orders; the fact that it was not in the Commissioner's contemplation that the dispute order would apply to a different dispute; and the fact that the two disputes were distinct and that BlueScope had not run its evidentiary case on any different basis.

There is no basis for the contention that in making the dispute orders Connor C intended to determine any industrial dispute other than the one connected to Mr Malufuka's dismissal. In his decision, when considering whether a dispute order ought to be made, Connor C focussed on that particular strike as being "inappropriate and unnecessary" since a Pt 6 application had already been lodged on Mr Malufuka's behalf by the AWU.

It is notable that in relation to the separate and wider industrial dispute concerning the enterprise bargaining negotiations, BlueScope notified a new dispute (IRC 2004/2543) and sought the re-listing of an existing dispute matter (IRC 2004/400) concerning enterprise bargaining but did not seek to re-list the dispute concerning Mr Malufuka. In the course of those proceedings, BlueScope sought dispute orders with no suggestion that those employees in the coke oven batteries were already bound by a dispute order in relation to the enterprise bargaining dispute. This demonstrates that the confined nature of the industrial dispute considered by Connor C was well understood by both parties.

The power of any arbitrator to arbitrate a dispute is confined by the scope and subject matter of that dispute. This limitation of "ambit" applies to the exercise of arbitration powers to determine industrial disputes under Commonwealth legislation made pursuant to s 51(xxxv) of the Constitution.

The same limiting concept is apparent in the provisions of the Act relating to the conciliation and arbitration of industrial disputes. Any industrial dispute must be the subject of conciliation before arbitration; the power to make a dispute order is confined in terms to "dealing with" an industrial dispute; and unions, officials and their members are entitled to protection from actions in tort and injunctions while an industrial dispute remains in conciliation.

Section 137(1) contains an express limitation - the Commission is empowered to make disputes orders "when dealing with an industrial dispute in arbitration proceedings" (which must have earlier been the subject of conciliation) - and it is not necessary, to accept Boland J's interpretation, to "read a limitation into the statute", as BlueScope suggests.

Pursuant to s 3(g), one of the objects of the Act is "to provide for the resolution of industrial disputes by conciliation and, if necessary, by arbitration in a prompt and fair manner and with a minimum of legal technicality". This object shows the primacy of conciliation and the necessary connection between arbitration and the resolution of the relevant industrial dispute.

The process of conciliation and arbitration is initiated either by notification by the parties under s 130(1) of an industrial dispute "for the purpose of resolving the dispute" or by the Commission under s 130(2) "to resolve an industrial dispute". These provisions further demonstrate the necessary connection between the existence of a particular industrial dispute and the capacity under Ch 3 of the Act to exercise powers of conciliation and arbitration: see Federated Municipal and Shire Council Employees Union v Energy Australia (1999) 90 IR 311 at 313. This connection is also reinforced by ss 137(2), 138(1), and 139(3).

BlueScope's interpretation would lead to inconsistencies within the Act. A dispute order which purported to operate with respect to any future industrial dispute occurring in a specified period of time must necessarily contravene ss 133 and 135, since by that order future industrial disputes have been arbitrated before they have been the subject of conciliation.

The limited protection against tort action and injunctions afforded in relation to industrial disputes by Pt 3 of Ch 3 would be vitiated if "blanket" dispute orders could be obtained in advance of such disputes occurring because the conciliation stage of the dispute during which those protections would apply would be entirely by-passed.

Acceptance of Boland J's interpretation would not restrict the Commission to being reactive, nor restrict the ability of the Commission to "deal effectively with existing and potential industrial disputation" as contended by BlueScope. The definition of "industrial dispute" in the Dictionary includes a "threatened or likely industrial dispute" which could, on Boland J's approach, still be dealt with by way of a dispute order in arbitration if conciliation in relation to such a dispute was unsuccessful.

The AWU agreed that, if the appeal is upheld, the appropriate course would be to remit the matter to Boland J. Consideration

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

3. The order of dismissal of the summons made by Boland J is set aside.

4. Matter No IRC 2779 of 2004 is remitted to Boland J to determine the merits of the application in accordance with these reasons.

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