6 The circumstances upon which the AWU relied for its submission that the Court should take no action on the contravention relate to the reasons why this Court originally found it had no jurisdiction to entertain the prosecutor's application: see Bluescope Steel (AIS) Pty Ltd v Australian Workers' Union, New South Wales [2005] NSWIRComm 260, a judgment given on 28 July 2005. 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 and 29 April 2004, but rather the orders applied to industrial action connected to what the Court considered was a separate industrial dispute that occurred on 22-23 April 2004.
7 This 'separate' dispute involved strike action by production employees employed by the prosecutor at the Coke Ovens of Port Kembla Steelworks. The employees were members of the AWU. The strike was in protest at the dismissal of an employee, Mr Methuisela Malufuka, an operator, for allegedly threatening behaviour towards a supervisor.
8 On 23 April, after hearing the parties, Connor C issued a certificate of attempted conciliation and made the dispute orders that are the subject of these proceedings. It may be noted the Commissioner's orders came into effect on and from 6.00pm on Friday, 23 April 2004 and were to remain in force until Monday 24 May 2004 unless, on formal application, they were varied or rescinded in the meantime. Following a meeting of the striking employees to consider the Commissioner's orders, a return to work was effected at about 6.30 pm on 23 April.
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 a report on enterprise bargaining negotiations and outsourcing on Coil Handling. The meeting on 29 April was subsequently held and it was resolved to take strike action. On 30 April, following proceedings before a Full Bench of the Commission, the striking employees returned to work on 30 April.
10 The Court, as presently constituted, took the view in its decision of 28 July 2005, that the dispute involving the dismissal of Mr Malufuka was separate to the dispute that occurred between 27 and 30 April and, consequently, as the dispute order made by Connor C did not apply to the later dispute, the Court had no jurisdiction to hear and determine the prosecutor's application alleging contravention in respect of the later dispute.
11 In Bluescope Steel (AIS) Pty Ltd v Australian Workers' Union, New South Wales (2006) 153 IR 176, a judgment given on 7 June 2006, the Full Bench found that the Court at first instance was wrong. Whilst the Full Bench did not expressly say so, it is apparent from a reading of the judgment as a whole that the Full Bench was of the view that the orders made by Connor C on 23 April 2004 in relation to the Malufuka dispute applied with equal force to the dispute that arose on 27 April and which continued until the return to work on 30 April.
12 It was on the basis of the Full Bench's decision and the remittal of the matter to the Court as presently constituted, that I proceeded to consider whether the AWU, its officers, employees and members had contravened the Commissioner's dispute orders of 23 April 2004 and consequently made the findings set out at [2] of this judgment.
13 Prima facie, the findings in [2] hereof would attract a penalty under s 139(4) of the Act. The complicating factor, however, is that there was evidence in the proceedings that certain officers of the AWU believed the dispute orders made by Connor C did not apply to the events of 27-30 April 2004 but were limited to the Malufuka dispute. It was, primarily, on this basis that counsel for the AWU contended that the Court should take no action on the contraventions found to have occurred between 27 and 29 April 2004 because the officials honestly held a belief that "the orders had no application to the industrial dispute which was the subject of the findings of contravention."
14 Counsel for the prosecutor, on the other hand, contended that the AWU, through its officials, could have been in no doubt that the orders were to remain in force for one month from 23 April and that the orders were not limited to the Malufuka dispute but rather applied to the organising and taking of any industrial action during the period the orders were in force.
15 Mr Darryl Anderson was the Acting Branch Secretary of the Australian Workers' Union, New South Wales Port Kembla, South Coast and Southern Highlands Branch when he swore his affidavit in the proceedings in July 2004. In referring to the industrial action that occurred on 29 April 2004 Mr Anderson deposed that:
As the stop-work meeting and the subsequent picket line was a consequence of the EBA negotiations, I did not have a view that in any way the action taken by the members was breaching the Dispute Orders issued by Commissioner Connor on 23 April 2004. As (sic) I maintained a belief that those orders related solely to the alleged unfair dismissal of Mr Malufuka.
16 Mr Anderson was cross-examined about this statement that he believed the orders related only industrial action associated with the dismissal of Mr Malufuka. The relevant extract from the transcript of proceedings is set out below:
Q. At what time do you say you formed the belief that these orders didn't apply to the behaviour of the 29th and 30th?
A. When the members - when I read the orders to the members and they returned to work my belief was that we complied with the orders and that was it, and that was to be the end of it. Return to work over the orders that were issued in relation to Neil Malufuka.