Bluescope Steel v AWU and Anor [2005] NSWIRComm 99 | Case summary

Bluescope Steel v AWU and Anor [2005] NSWIRComm 99 | Case summary | Zoe

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2 The alleged contraventions related to alleged industrial action taken by employees of the prosecutor, members of the two Unions, on the dates aforementioned. It is necessary to consider the background to the industrial action. In March 2002, the prosecutor, through Mr Derek O'Callaghan, the former Vice President of the prosecutor's Packaging Products Department, met with Mr Andrew Gillespie, the Branch Secretary of the AWU's Port Kembla, South Coast and Southern Highlands Branch, to discuss the need to upgrade the Coil Handling and Packaging operations within the Packaging Products Department. The Department employed approximately 200 employees. The work in this Department involved the packaging of tin plate that had been rolled into coils and the distribution of the coils to customers. The process was largely manual and the prosecutor had become concerned at the amount of damage occurring to the coils, quality of packaging and the need to increase productivity. At the same time as these discussions occurred, employees in the Department, other than employees, members of the AFMEPKIU and ETU, who the prosecutor considered would not be affected by any changes, were advised of two projects being considered to achieve improvements in yield, safety, costs, delivery and throughput in the Department. The two projects were: · The introduction of Automated Guided Vehicles (AGVs) for coil handling downstream from the ET lines. · The rationalisation of wrapping facilities. One option being evaluated would involve the consolidation and upgrading of our wrapping facilities. 3 The employees were advised that no decisions had been made on the projects and that: Should the commercial viability of these projects be established, we will hold further discussions with those involved on the implementation of the changes, and in particular, any impact on employees. 4 In July 2002 Mr Kevin Lewry, the prosecutor's Vice President, Operations for the Packaging Products Business, met with Ms Julianna Dickinson, an AWU organiser at the time who had responsibility for Packaging Products, regarding the Company's intention to enter into an agreement with Brambles Industries Limited ("Brambles"). Mr Lewry advised Ms Dickinson that the improvement proposal was subject to a suitable business case being completed. Mr Lewry provided Ms Dickinson with a copy of a written update on the proposal that was given to employees on 24 July 2002. Relevantly the update stated: Our intent would be to enter into a long term Service Agreement with Brambles Steel Services, whereby: i) Brambles would own and operate the AGV system, servicing the ET Line exit, both CPLs, N0. 1 NCR and the wrapping facility, and ii) Brambles would consolidate the wrapping facilities such that there would be a single new Wrapping Line adjacent to the FWC, which would be extended to the north of the existing line, and would have the capability to fulfil all the coil wrapping requirements for PP. The implementation timeframe of the projects would be 15 months from date of approval for the AGV's and 10 months from date of approval for the Wrapping Line. 5 The update indicated that employees would be affected and "every effort will be made to work with employees affected, in accordance with Award and EBA commitments, to secure positive outcomes for all concerned." A commitment was given to keep employees informed. 6 In February 2003, Mr Lewry wrote to each employee in Packaging Products advising them that the business case to complete an agreement with Brambles had been approved and that the next step was for the Company to finalise an agreement with Brambles. The note stated: This project does have an impact on a number of people at the finishing end. I recognise this and know that there will be much more discussion with these people so that we can all reach the best possible outcome. Note that if this project proceeds, it will take up to 18 months to complete so there is plenty of time for discussion. 7 On 3 July 2003 Mr Lewry advised employees that the Company had signed a Service Agreement with Brambles. The letter stated: Who Will be affected Through the investigation work carried out in the initial stages of this project, 56 to 65 positions in the FWC Wrapping Line, #1 & #2 Coil Prep Lines and Cranes F492, F942 & F787 have been identified as being directly affected by this decision

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What will happen from today · Dale Finucane is appointed as the individual case manager for each of the 56 to 65 people in the business that are affected by this decision, · Taking our people through a process with their future plans as they require it, · We will collect questions and concerns sheets, so that we can provide you with the answers in the shortest time possible 8 The letter indicated that Mr Lewry would be regularly communicating with employees about the progress of the project. Prior to releasing the letter to employees Mr Lewry sent a "courtesy copy" to Mr Gillespie who indicated to Mr Lewry in a telephone conversation on 3 July that the prosecutor's position was unacceptable and that it was "not going to happen". Mr Lewry deposed in his affidavit read in the proceedings that Mr Gillespie said to him: There will be industrial war for the next 12 months. 9 Annexed to Mr Lewry's affidavit was a file note dated 3 July 2003 of the crux of the conversation between he and Mr Gillespie. The file note indicated a meeting had been arranged between Mr Lewry and Mr Gillespie for the following day. Mr Gillespie did not keep the appointment. Consequently, Mr Lewry sent to Mr Gillespie a facsimile message enclosing copies of documentation that outlined: (a) the rationale for the decision to enter into a Service Agreement with Brambles; (b) a timetable for implementation; (c) an estimate of the number of employees affected; and (d) copies of previous correspondence sent out to employees and the AWU about the proposals. 10 A meeting eventually took place between Mr Gillespie and Mr Lewry on 9 July 2003. Mr Lewry deposed: During the meeting Mr Gillespie agreed with the Company's rationale for entering into a Service Agreement but also made some demands. Mr Gillespie said words to the effect of: The Company must look after the people who will be displaced otherwise life will become very difficult. 11 In the file note dated 9 July 2003 recording the conversation with Mr Gillespie, Mr Lewry stated: Mr Gillespie indicated that if we could come to an agreement on that issue [employees would remain on Bluescope's payroll, managed by Brambles] then he had no great argument with what was proposed, provided we [Bluescope] were able to look after the people who were displaced. He added that if we could not agree, life would be very difficult. He would oppose the project, and we [Bluescope] would face significant disruption. 12 On 5 August 2003 Mr Brian Rooney, the Superintendent of Strip Finishing in Packaging Products, and Mr Lewry, met with Mr Gillespie and another AWU organiser, Mr David Hancock. Also at the meeting were four AWU delegates (Messrs Baritov, Borg, Volkanovski and Georgio). Mr Rooney took the minutes of the meeting. During the meeting, Mr Lewry deposed that Mr Gillespie said words to the effect that: Brambles should not be the employer of employees in the new coil processing plant, but rather the Company [Bluescope] should be. If the Company does not agree then there will be a mass meeting organised by the Union. 13 On 11 August 2003 Mr Rooney wrote to Mr Gillespie informing him that Bluescope intended to progress the implementation of the Service Agreement with Brambles and that further consultation should focus on management of employees affected by this decision. 14 According to the evidence of Mr Rooney, during August and September 2003 he met with the AWU and Packaging Products employees to discuss the Brambles installation project. After these meetings he recorded the questions raised by individual employees in the one document and supplied written answers to those questions. In addition to this, he provided employee personal action plans and the assessment form that Bluescope proposed using for the selection of employees who would remain employed by Bluescope in Packaging Products. 15 On 26 September 2003 employees were invited to apply for positions on the Coil Preparation lines that would exist after the completion of the installation project. Employees were supplied with internal application forms and information about the proposed selection process. 16 On 7 October 2003 Messrs Gillespie and Hancock approached Mr Lewry and advised him that operators would not complete the application forms for the positions that would remain at the Coil Preparation Lines until further consultation was undertaken. Mr Lewry agreed that the further consultation could occur and that the applications could wait until consultation occurred. 17 On 22 October 2003 Bluescope notified the Industrial Relations Commission of a dispute with the AWU regarding a proposed stop work meeting to be held on 23 October. The dispute related to the Company's objection to the AWU convening a stop work meeting of all Packaging Products employees. Mr Hancock appeared for the AWU. At the conclusion of the compulsory conference, Commissioner Bishop issued a recommendation that the proposed stop work meeting be divided into 2 separate off-shift meetings to prevent any disruption to the Company's production. Subsequent to the recommendation being made it is apparent from the transcript of proceedings before Bishop C Mr Gillespie telephoned the Commissioner and advised her that the AWU would not comply with the recommendation. Consequently, Commissioner Bishop converted the recommendation into a direction. 18 Mr Lewry deposed that on 23 October 2003 the AWU convened one stop work meeting in breach of the Commissioner Bishop's direction. The stop work meeting lasted one and a half hours and resulted in a loss of 200 tonnes of steel.

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19 On 28 November 2003, 4 December 2003 and 10 December 2003 Mr Rooney attended meetings with crew representatives and Mr Hancock from the AWU to discuss the proposed selection criteria and what comments or ideas the employees had regarding these. I note from the minutes of the meetings, a significant complaint by employees at the meetings was that after many years' service (34 in one case) they were being required to re-apply for the job they had been performing for years. January 2004 20 On 5 January 2004 Mr Rooney wrote to Mr Hancock and acknowledged that consultation regarding the selection process for identifying which employees would be offered employment in the remaining Coil Processing Line had been exhausted and that the Company was ready to implement that selection process. The process was exhausted in Mr Rooney's view because he was unable to get agreement to Bluescope's proposals and that the AWU's reliance on seniority as a criterion was unacceptable. 21 On 6 January 2004 Mr Hancock wrote to the Company invoking the 14-day cooling off period. The relevant industrial instruments that applied to the Port Kembla Works were the BHP Steel (AIS) Pty Ltd - Port Kembla Steel Works Employees Award 2000 and the BHP Steel Port Kembla Operations Enterprise Agreement 2002. Clause 7 of the Agreement was entitled "Processes for introducing change which is significant in nature and for resolving associated issues and disputes." Clause 7.3.6 provided that where a consultation process had been exhausted and there was disagreement the proposed change could be implemented unless a party gave notice in writing that it sought a "cooling off period" that applied for 14 days. During the cooling off period the status quo was to prevail. Clause 7.3.7 provided that the change could be put into effect after the expiry of the cooling off period subject to any decision of the Industrial Relations Commission pursuant to s 130 of the Act. It was open to a party to seek an extension of the cooling off period. 22 On 13 January 2004, Mr Rooney wrote to Mr Hancock and advised him that Bluescope would maintain the status quo during the cooling off period and that it was also willing to have further discussions with the AWU and its members during the cooling off period if it wished. However, no request was made by the AWU for a meeting to take place. 23 On 13 January 2004 Mr Lewry deposed that he met Mr Hancock who said to him words to the effect: Mr Gillespie has instructed me to organise a delegates meeting because Brambles are advertising Coil Handling and Packaging positions in the Mercury newspaper this weekend. The purpose of the meeting is to pass a resolution to go on strike when the adverts are published. 24 Consequently, Bluescope notified the existence of an industrial dispute, involving the prospect of strike action on Saturday 17 January 2004, which was listed for hearing on 15 January 2004 before Staunton J. Mr Gillespie for the AWU denied that any strike action was about to occur. On the basis of Mr Gillespie's statement that there would be no strike action that weekend Staunton J adjourned the proceeding. 25 Mr Lewry deposed that on 28 January 2004 he had a telephone discussion with Mr Gillespie. During the discussion Mr Gillespie was alleged to have threatened industrial action with words to the effect of: There will be a big blue over the Brambles contracts. There will be a big stoppage and we will give you five minutes notice. 26 Mr Gillespie denied he said the words attributed to him by Mr Lewry and indicated he had said to Mr Lewry from time to time: You are creating a big blue unnecessarily. All we want to talk about is the Brambles contract and our members doing the same work for Brambles. 10, 11 February 2004 27 On 10 February 2004, the AWU circulated a notice requiring all AWU members employed at the Tin Mill [where Packaging Products was located] to attend a gate meeting regarding the "outsourcing proposal" at 3.00pm on 11 February 2004. The notice was authorised by Mr Gillespie. 28 Mr Peter Talbot, the prosecutor's Vice President Human Resources, deposed that at approximately 3.30pm on 11 February 2004 Mr Gillespie advised him that the members of the AWU in the Packaging Products Department had commenced strike action. He said that Mr Gillespie said words to the effect of: Packaging Products employees are on strike for 24 hours and are meeting again at 3.00pm. The Company will not get away with this. I will involve the hot strip mill and others. If this has to go to the Showground then so be it. 12, 13 February 2004

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31 On Friday 13 February, in relation to the dispute notified by the AWU, Connor C made the following further recommendation: 1 All existing Bluescope operators involved in the coil handling and packaging operations to be taken over by Brambles should be given the opportunity to apply for the positions available in Brambles operations and Brambles should give preference to those existing employees in selecting operators who meet the necessary requirements of the positions available. I understand that some assessment and training may be necessary in that respect. I also understand that there are a limited number of positions available and that should be understood by the employees concerned. 2 Therefore Bluescope Steel retains responsibilities for the bulk of the employees who are surplus to requirements as a result of the new arrangements entered into with Brambles. Bluescope Steel must either (i) take all steps necessary to find suitable alternative employment for those employees (ii) alternatively, if no such position has become available by Thursday, 1 April, 2004, those employees will be eligible for redundancy. At this time, and until there is further discussions between the AWU and Bluescope Steel, I do not believe that it is appropriate to consider any forced redundancy. 32 Mr Gabriel Meena, President of the Springhill, Port Kembla Works of BlueScope Steel Limited, stated in his evidence that at approximately 4.00pm on 13 February 2004 he received a call from Mr Gillespie. During the telephone conversation Mr Meena said Mr Gillespie made reference to the strike action that had been taking place at the Packaging Products Department since 11 February. Mr Meena deposed that Mr Gillespie said words to the effect of, "Unless the matter is resolved over the weekend, the strike action will escalate … to include the Hot Strip Mill, Plate Mill, then Slab Yard and then Springhill." Monday 16 February 2004 33 A meeting occurred at 7.00am on Monday 16 February 2004 of Packaging Products operators at which shift mechanical trades employees, members of the AFMEPKIU attended. Mr Talbot said arising out of this meeting Packaging Products operators (members of the AWU) and shift mechanical trades employees (members of the AFMEPKIU) commenced strike action. At approximately 8.00am Mr Talbot said he telephoned Mr Gillespie and asked him about the meeting. Mr Talbot deposed that Mr Gillespie said words to the effect of: There is strike action, with a further report back meeting at 3.00pm. If there is no resolution it will go a lot longer. Orders will not resolve it. The only way to resolve it is for the Company to guarantee that our people get jobs. Whether or not Brambles get the contract is another matter. We will take some legal steps. 34 The disputes that the previous week had been before Connor C were relisted before the Commissioner on Monday 16 February 2004 and a hearing took place at about midday. The prosecutor sought dispute orders. Mr Gillespie advised the Commissioner that the meeting earlier that morning had rejected his recommendations of the previous Thursday unanimously. It is clear from the transcript of the proceedings that the AWU's demand was that it wanted a guarantee that the 61 employees whose jobs were to become redundant in the Packaging Products Department would retain their employment. 35 In the course of the proceedings Mr Gillespie submitted: Commissioner, I'll tell you. I'll cop the fines, I'll cop whatever, but this ain't going to happen. This is not going to happen. Whatever's going to happen here, whatever's going to happen today. Now … we are not going to tolerate what these people want to introduce. If we think its going to get bigger, then yes, Commissioner, it is going to get bigger, because there is … quite a significant issue at stake in this particular matter which doesn't only affect the tin mill. It affects all of BHP. 36 After hearing the parties, the Commissioner made dispute orders pursuant to s 137 and s 138 of the Act at about 12.45 pm on 16 February in the following terms: (i) That members of the AWU and the AFMEPKIU employed in its coil handling and packaging operations shall cease and refrain from taking any further industrial action and shall work in accordance with normal work requirements and their contracts of employment effective from 3.00 pm on Monday, 16 February, 2004;

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(ii) The AWU, their respective officers and employees shall take all reasonable steps to ensure compliance with that order in para 1 above. (iii) This order shall come into effect from 3.00 pm on Monday, 16 February, 2004 and shall remain in force until Tuesday, 30 March, 2004 unless, on formal application, it is varied or rescinded in the meantime. 37 Mr Gillespie was somewhat confused about just which meeting he did attend on 16 February. He certainly attended one at about 7.00am in company with Mr Hancock but that was before any orders had been issued. Mr Gillespie said the next meeting he attended was on 17 February. Later in his oral evidence in answer to a question from counsel for the prosecutor, Mr Warren, about the steps he took to comply with the orders on 16 February, Mr Gillespie said he sent Mr Hancock to the "gate" on Monday afternoon to have a meeting with the afternoon shift as they came in for work. Then later in his evidence, in re-examination, Mr Gillespie agreed with counsel for the AWU that at about 1.00pm or 2.00pm on Monday 16 February he convened a meeting of employees at "Northgate". The meeting involved Packaging Product employees and shift mechanical trades employees. Mr Gillespie said he explained to the employees the outcome of the proceedings before Connor C earlier that day and that the Commissioner had issued dispute orders. Mr Gillespie said he recited the orders to the employees present and deposed in his affidavit he said words to the effect: What these orders mean is there is an order on you to return to work, that means the Commission is directing you to return to work without bans and limitations and work in accordance with the needs of the industry and if you don't there are consequences under the Act for the Union. 38 In cross examination Mr Gillespie agreed he did not direct employees to return to work but instead said, "I am making recommendations and recommending that you comply with that order". Mr Gillespie said he also advised employees at the meeting, "There's a direction from the Commission and you are obliged to accept that direction and return to work". Mr Gillespie stated that he received a hostile reaction from the employees who accused him, amongst, other things, of "taking backhanders from the Company". Mr Gillespie said he judged it inappropriate to issue directions that the employees comply with the dispute orders because of the angry mood of the meeting. 39 Mr Gillespie said the meeting ended with a vote to remain on strike and a resolution that there be a further meeting at 7.00 am on Tuesday 17 February. It was also resolved, according to Mr Gillespie, that he should advise employees in the Hot Strip Mill, Plate Mill and Slab Yard of the industrial action. Mr Gillespie said it was not he who called the meeting for the next day but the employees in Packaging Products. He said that after he had advised delegates in the Hot Strip Mill, Plate Mill and Slab Yard of the industrial action in Packaging Products they resolved to participate in the meeting on 17 February. Mr Gillespie said he advised the delegates of the orders and what they meant. 40 At about 4.00 pm on 16 February, according to Mr Talbot, he was present at a meeting when Mr Gillespie interrupted the meeting and said words to the effect of: The employees remain on strike. There is a meeting again at the Visitors Centre at 7.00am tomorrow. It will involve the Hot Strip Mill, Plate Mill and Slab Yard. 41 Mr Gillespie said in his evidence that what he said to Mr Talbot was that the employees had resolved that the industrial action was going to extend to include the Hot Strip Mill, Plate Mill and Slab Yard and it was not until later that evening after he had advised the delegates in those areas of what was occurring in Packaging Products that the delegates resolved to join the meeting the following day. 42 Mr Hancock stated in his affidavit that he also attended the meeting on 16 February with Mr Gillespie but it was Mr Gillespie's evidence that Mr Hancock attended a later meeting on 16 February at about 3.00pm of about a dozen employees who had come in to work on the afternoon shift. Mr Hatcher of counsel for the AWU submitted that Mr Hancock was confused about this issue and that: …when he gave his account in his affidavit about the meeting at 3pm on the 16th, he got confused with an event that occurred at 7am on the 17th and when he was cross-examined about that he realised what he had done. So when your Honour looks at his affidavit which describes what occurred at this meeting, that is to be taken as events that occurred on the 17th at 7am. 43 The difficulty with this, of course, is that if I accept it Mr Hancock then gives two different versions of what occurred at the meeting at 7.00am on 17 February. I will deal with this conundrum under the next heading. Tuesday 17 February 2004 44 A meeting of employees did take place at about 7.00 am on Tuesday 17 February. Mr Gillespie and Mr Phillips were in attendance at the meeting. Mr Gillespie said in his evidence the mood of the meeting was angrier than that he had encountered the previous day. Nonetheless, Mr Gillespie's evidence was he said to the meeting, "I strongly recommend you comply with the Commission's orders and you return to work." Mr Phillips corroborated Mr Gillespie's version of events. The meeting resolved that a meeting of "combined steel industry union delegates" be convened that afternoon and that a mass meeting of all steel works employees be held the next day, Wednesday 18 February 2004. It is evident that the meeting also decided to take strike action and after the meeting there was no return to work by Packaging Products operators and shift mechanical trades employees. In addition, Hot Strip Mill and Plate Mill employees joined in the strike. 45 Mr Hancock gave evidence that he attended the meeting with Mr Gillespie on 17 February although as I have noted, Mr Hancock was confused about just which meeting he did attend. He gave evidence that he attended a meeting on 16 February 2004 but counsel for the AWU urged me to regard the evidence of Mr Hancock relating to that meeting as evidence relating to the 7.00am meeting on 17 February. Mr Hancock did not attend three meetings on 16 February, that is at 7.00 am with Mr Gillespie, at about 1.00pm or 2.00pm with Mr Gillespie and another meeting at 3.00 pm that day by himself. There were only two meetings of AWU members on 16 February - one at 7.00am and one in the afternoon after Connor C had made his dispute orders.

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46 If I were to accept Mr Hatcher's explanation, undoubtedly made on instructions, as to Mr Hancock's confused state, it would mean there are two versions in Mr Hancock's evidence as to what occurred at the meeting of 17 February. For instance, Mr Hancock said in relation to the meeting he said he attended on 16 February (which counsel said should be regarded as evidence of what occurred on 17 February): At that meeting Andy Gillespie reviewed the proceedings before the IRC on that date and the fact that Dispute Orders had been issued. Mr Gillespie recited the Dispute Orders and confirmed that no industrial action could be taken or further proceedings could be commenced against the Union. Mr Wayne Phillips then addressed the meeting and recited from the Dispute Orders and again confirmed that industrial action would result in his Union being in breach of Dispute Orders. The members were very angry and Mr Gillespie was doing his best to convince them to leave the matter to him and the Union to try and negotiate the whole Brambles matter with the Company. Mr Gillespie ended his part of the meeting by again explaining that the Dispute Orders were in place, that there should be no industrial action and the outsourcing issue with Brambles should be left with him and the Union to negotiate with the Company. It was not a very pleasant meeting as some of the employees were yelling out statements from the floor like " You've gone soft, the Company's got it all over us, you're receiving backhanders from the Company ". At the meeting on 16 February 2004 the members took matters into their own hands and motions were moved for the strike to continue which were seconded. Notwithstanding both the attempts of Mr Gillespie and Mr Phillips the members voted to maintain industrial action. Mr Gillespie continued arguing with the employees reminding them of the seriousness of the Orders and that they had to return to work. Again, the members maintained industrial action notwithstanding Mr Gillespie and Mr Phillips' attempts to have them return to work. The meeting eventually ended and the members started walking away from the meeting. The final motion put to that meeting was that there would be a further meeting held at the same venue, that is the Northgate carpark the next morning at 7:00am. It was moved by the members taking industrial action and not Mr Gillespie or Mr Phillips. 47 In relation to the meeting on 17 February 2004 Mr Hancock deposed: Both Mr Gillespie and myself attended the meeting at 7:00am on 17 February 2004 at the Northgate carpark. I attended with Mr Gillespie in our capacity as AWU representatives. More company employees attended the 17 February 2004 meeting than attended the 16 February 2004 meeting. At the 7:00am meeting Mr Gillespie again addressed the Company employees. At that meeting he said words to the effect: As I said yesterday, there are Dispute Orders in place that do not allow any form of industrial action, that is work bans, strikes, etc. You have to return to work as we will be back in the Commission fighting a case about breaching Dispute Orders. In addition to Mr Wayne Phillips attending for the AMWU, Mr Tomlins for the ETU also attended the same meeting. Mr Phillips read the same Orders and also recommended compliance with the Orders and that there be a return to work immediately. Like the meeting on 16 February 2004, the members were very angry and a lot of their anger was directed at our Union with statements being made in words to the effect " You're all soft, you're obviously taking backhanders from the Company, we're losing our jobs and you're doing nothing about it, what's the using of being in a fucking Union if we're not going to get any help from it ". 48 It may be seen that in his affidavit Mr Hancock distinguished, quite clearly, between the two meetings, making reference in his description of the meeting of 17 February to what occurred on 16 February. If I were to accept Mr Hatcher's explanation I would have to come to the conclusion that Mr Hancock concocted his evidence about attending the meeting on 16 February.

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52 A tape of that interview and a copy of the transcript of that interview were exhibited to Mr Talbot's affidavit. 53 The prosecutor and Bluescope Steel Limited notified disputes to the Commission and these notifications came before Connor C at about 11.15 am on 17 February. After hearing the parties Connor C made a "supplementary decision" and issued amended dispute orders in accordance with the terms proposed by the prosecutor. The orders were in the following terms: 1. The AWU, the AFMEPKIU and the ETU, their respective officers and employees and their respective members employed by either: (a) Bluescope Steel (AIS) Pty Limited at its Port Kembla steelworks; or (b) Bluescope Steel Limited at its Springhill works, 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, the AFMEPKIU and the ETU and 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, the AFMEPKIU and the ETU an their respective officers and employees must take all reasonable and necessary steps to ensure that order in para 1 is complied with, including, but not limited to: (i) advising their members of these orders by no later than 3.20pm on Tuesday, 17 February 2004; and (ii) convening a meeting by 3.20pm on Tuesday, 17 February, 2004 of all members who are engaging in industrial action and directing them to comply with the order in para. 1. 4. This order shall come into effect on and from 3.20pm on Monday (sic - Tuesday), 17 February, 2004 and shall remain in force until Tuesday, 30 March, 2004 unless, on formal application, it is varied or rescinded in the meantime. 54 Mr Gillespie and Mr Phillips had left the Commission proceedings prior to the Commissioner making the orders but both officials were aware of the Commissioner's intention and the terms of the proposed orders. 55 Mr Talbot deposed that: The signed supplementary decision and further dispute orders were then served on the Sydney offices and Wollongong offices of the AWU, AFMEPKIU and ETU at the following times: · AWU Sydney office - 2.26pm · AWU Wollongong office - 2.02pm · AFMEPKIU Sydney office - 2.20pm · AFMEPKIU - Wollongong - 3.56pm · ETU Sydney office - 2.13pm · ETU Wollongong office - 2.10pm 56 Mr Talbot made telephone contact with Mr Gillespie at about 2.15 pm on 17 February and asked him what was the position regarding the dispute orders. Mr Gillespie's response according to Mr Talbot was: The meeting this afternoon is not going to happen. It's unrealistic. It's 2.15pm. The first opportunity is 7.00am tomorrow morning with everybody. 57 Mr Talbot also said in his evidence that at 2.25pm he telephoned Mr Phillips' mobile phone and left a voicemail message to the effect of: What is the position regarding Commissioner Connor's order that you call a meeting of your members and secure a resumption of work by 3.20pm.

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58 Mr Phillips had not been in a position to respond because he was engaged in enterprise negotiations in relation to the Appin Colliery. 59 In the meantime, Mr Shaun Towers, Process Expert Hot Coil Processing and Despatch, had been engaged in calling employees to advise them of the Commissioner's orders. Mr Towers deposed: At approximately 1.30pm on 17 February 2004 Max Bland the Manager of HCPD [Hot Coil Processing Department] instructed me and Alex Ridolfi, another supervisor to telephone all day shift employees employed in HCPD and inform them that the Industrial Relations Commission of New South Wales … had ordered that employees return to work by 3:20pm. Mr Bland also gave me a copy of the Commission's orders. Mr Ridolfi and I divided the telephone numbers of the 24 employees rostered to work on day shift in HCPD. I then telephoned approximately 12 employees and told them about the Commissions orders. At approximately 3.20pm on 17 February 2004 I went out into the HCPD to check who had turned up for work. I took a (sic) copies of the orders Mr Bland had given me and gave copies to employees that had arrived at work. By approximately 4.00pm on 17 February 2004 I had ascertained that the despatch crew had arrived for work at North Despatch, some crane drivers had arrived and some Skin Pass Mill employees had also returned to work. Of the HCPD employees that had been telephoned and told to return to work 12 employees presented themselves ready for work. At approximately 4:10pm on 17 February 2004 I was walking back to my office when I noticed Mr Hancock from the AWU talking to a group of employees at the Skin Pass Mill. I recognised three of the employees as Mr Babaroski, an operator 4 in the HCPD, Mr Goldsmith, an operator 5 in the HCPD and Mr Manfiotto, an operator 5 in HCPD. Mr Bland was also present and I decided to walk over and see what was being discussed. As I approached the meeting I then heard Mr Hancock say words to the effect of: We broke the commission's orders yesterday and we are doing it today as well. Mr Bland then responded to Mr Hancock by stating words to the effect of: The Industrial Relations Commission requires a return to work. Mr Bland then showed Mr Hancock the Commission's orders which he had in his hand. Mr Hancock then turned to the employees and stated words to the effect of: I can't tell you to go home, but I want to tell you all that you are all on strike. Mr Bland then spoke to the employees and said words to the effect of: There is work for those who want to stay in accordance with the Commission's orders. It is your decision about what to do. Mr Hancock then repeated his earlier statement with words to the effect of: I can't tell you to go home, but I want to tell you all that you are all on strike. He then added words to the effect of: Until the meeting at 7:00am tomorrow. Mr Bland then repeated his earlier statement with words to the effect of: There is work for those who want to stay. It is your decision about what to do. Mr Bland and I then left the meeting and went back to our office. At approximately 4.40pm I went back to the Skin Pass Mill to see what had happened at the end of the meeting. When I got there Mr Hancock and the employees had gone. I then checked the area and found that all of the employees had gone home. I went back to my office and told Mr Bland what I had observed. 60 Mr Towers made a file note of the foregoing at about 5.00 pm that day. The file note was in evidence. Mr Bland corroborated Mr Tower's version of conversations and events. Mr Bland also stated: By approximately 8.30pm on 17 February 2004, when I left to go home, all production employees in the HCPD, Roll Shop and Hot Strip Mill had ceased working. When I arrived at work at approximately 8.00am on 18 February 2004, no employees were at work at the HCPD, Roll Shop or Hot Strip Mill. At approximately 9.30am I observed employees arriving at work. 61 Mr Hancock's evidence about the events of the afternoon of 17 February differed considerably from that of Mr Towers and Mr Bland. He said he attended the "B2 carpark" at 3.00pm. In attendance were approximately eight to ten employees. He said he explained to the employees that the Commission had issued amended dispute orders advising them that they must return to work. He said that employees asked him, "Where's everyone else, why should we go back to work if no one else is?" Mr Hancock said he replied: You go back to work and you work at a safe manning level. The reality is that we haven't been given much time to contact everyone, but its important that anyone else you speak to that doesn't know about these Orders or cannot be contacted, has to return to work. Any further problems please call me. 62 In response to the evidence of Mr Towers and Mr Bland that he said words to the effect, "I can't tell you to go home, but I want to tell you are all on strike", Mr Hancock said the words used were, "I'm not going to tell you to go home, I'm here to tell you to work in a safe manning level". Mr Bland and Mr Towers both denied there was any reference in the conversation to safe manning levels. Delegate's meeting - 17 February 2004 63 In the late afternoon of 17 February a meeting of combined steel union delegates took place at the AWU office in Wollongong. Mr Gillespie deposed that: At that meeting the combined steel representatives, that is myself for the AWU and Mr Wayne Phillips for the AMWU [AFMEPKIU] distributed to the steel union delegates copies of the Dispute orders. Again, I and Mr Wayne Phillips of the AMWU reviewed the Dispute Orders and we both indicated the necessity for a return to work in compliance with the Dispute Orders. 64 In the cross examination of Mr Gillespie by counsel for the prosecutor as to what occurred at the delegate's meeting the following exchange took place: Q. The process of that was, prior to that there was a delegates' meeting in your office? A. Yes, there was.

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67 Mr Phillip's affidavit evidence in relation to what was said at the delegate's meeting by himself and Mr Gillespie and Mr Tomlins was that: I informed them [the delegates] that the orders [of Connor C] required a return to work and recommended in the strongest possible terms a resumption of work. I read the orders out and said words to the following effect: The Commission has put orders on us to return to work. I strongly recommend that these orders be complied with and there will be an immediate return to work. This recommendation was unanimously rejected by the delegates present. I felt as though, I put the recommendation in a forceful and strong manner. Both officials [Gillespie and Tomlins] on behalf of their unions indicated that the employees were obliged to return to work. I supported them in there (sic) submission to the employees. The delegates determined to call a mass meeting for the morning of Wednesday 18 February 2004. 68 In relation to Mr Phillips' members employed by the prosecutor, I am satisfied on the evidence that it was established that those employees would not be affected by the proposed changes in the Packaging Products Department. Mr Rooney advised Mr Phillips orally of this on 13 February and in writing on 17 February. Mr Phillips advised members of this at one meeting he attended (17 February) but it seems that by that time his members had decided to support the AWU and Mr Phillips obviously did not see any point - because he took no contrary action - in insisting that his members not participate in any industrial action because of what he perceived to be the angry mood of the employees and the tradition of solidarity that appears to prevail amongst members of the AWU and AFMEPKIU employed by the prosecutor. The AFMEPKIU was not subject to the dispute order made on 16 February. I should add, however, that if Mr Phillips had been more active earlier than he was in advising his members they were not affected by the outsourcing and had been more forceful in that respect, it may have been the case that his members would not have joined the industrial action. Wednesday 18 February 2004 69 A mass meeting of employees of the prosecutor and Bluescope Steel Pty Limited took place at 7.30 am on Wednesday 18 February at the Showground. Mr Talbot said in his evidence: At approximately 7.00am on 18 February 2004 the AWU, AFMEPKIU and the ETU convened a stop work meeting for all employees of the Company and BlueScope Steel Limited (ie all Port Kembla Steelworks and Springhill Works employees). The meeting lasted approximately 1.5 hours and at approximately 9.00am I was advised by Mr Gillespie that the employees had returned to work. 70 Mr Gillespie's affidavit evidence regarding the meeting on 18 February 2004 was that: …the AWU did not convene a stop-work meeting as alleged by the Company. This was a meeting at the initiative of the employees. I addressed the mass meeting at the Wollongong showground on 18 February 2004. In addressing the mass meeting there were approximately two thousand (2,000) employees in attendance. I reviewed the entire recent history, that is the Orders issued on 16 February 2004 and again the amended Orders on 17 February 2004. I summarised the meetings held at Northgate the resolutions made at the Northgate meetings along with the delegates resolutions made in the AWU office in Wollongong on the evening of 17 February 2004 . I said to the employees in words to the effect: "We recommend that a resumption of work take place in compliance with the Orders and the amended Orders from the New South Wales Industrial Relations Commission." That resolution was supported both by Mr Phillips of the AMWU and Mr Tomlins of the ETU and after a heated debate our recommendation was put to the mass meeting and narrowly carried for a return to work. There was a return to work approximately half an hour after completion of the mass meeting, which would have been about 8:30am to 8:45am. 71 It was Mr Hancock's evidence that: Prior to the IRC proceedings on 17 February 2004 I was aware that the employees wanted a showground meeting to proceed on 18 February 2004. Our attendance at that meeting was going to be a last ditch effort to persuade the employees that were on strike to go back to work to ensure compliance with Dispute Orders issued originally on 16 February 2004 and amended again on 17 February 2004. I am aware that some employees did return to work on 17 February 2004, but a number continued to participate in industrial action. The meeting proceeded at 7:00am on 18 February 2004 at the Wollongong Showground. Andy Gillespie commenced the meeting as he had commenced meetings on 16 February 2004 and 17 February 2004 by referring all employees to both the 16 February 2004 Dispute Orders and the amended Dispute Orders of 17 February 2004 and instructing the employees that they must return to work. Also at the same meeting was Mr Wayne Phillips of the AMWU and Mr Warwick Tomlins for the ETU. Both Mr Phillips and Mr Tomlins made similar addresses to Company employees as Mr Gillespie did. It was resolved by the employees that there be a return to work and that occurred on 18 February 2004. The return to work occurred at the insistence of the AWU, the AMWU and the ETU. The meeting was probably more conciliatory on 18 February 2004 than the previous meetings where there was no return to work. Absent on 18 February 2004 were the allegations from the floor that were made against the AWU on previous occasions. 72 Mr Phillips said in his evidence: A mass meeting was held of all striking employees at 7.30 am on Wednesday 18 February 2004. This meeting was held at the Wollongong showground.

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After some debate from the members present, this was agreed to and the members accepted the recommendation to return to work. 73 The Court viewed a video tape recording. In relation to the recording Mr Trent Sebbens deposed: I am a solicitor employed by Blake Dawson Waldron, solicitors for BlueScope Steel (AIS) Pty Ltd (the Company ), the Prosecutor in these proceedings. I have been provided by the Company's External Affairs Department with a video tape recording part of the WIN Television 6.00pm nightly news broadcasts for Monday 16 February 2004, Tuesday 17 February 2004 and Wednesday 18 February 2004. Exhibited to me at the time of swearing this affidavit and marked " TDS 1 " is the video tape. It is labelled "WIN TV 16, 17 & 18 February Union Dispute". The video tape contains the following footage: (a) A stop work meeting of employees of the Company being addressed by Mr Andy Gillespie of The Australian Workers' Union, New South Wales (the AWU ). (b) An interview with Mr Wayne Phillips, an official from the Automotive, Food, Metals, Engineering, Printing And Kindred Industries Union, New South Wales Branch. (c) Mr Phillips and Mr Warwick Tomlins, the Assistant Secretary of the Electrical Trades Union of Australia, New South Wales Branch walking into the Industrial Relations Commission of New South Wales at Wollongong. Behind Messrs Phillips and Tomlins are Mr Dave Hancock and Mr Darryl Anderson, both officials, of the AWU, and Mr Marek Kuczwal an employee of the Company and AWU delegate. (d) Mr Gillespie entering the Industrial Relations Commission of New South Wales at Wollongong. (e) A stop work meeting of employees of the Company being addressed by Mr Phillips. (f) A stop work meeting of employees of the Company being addressed by Mr Andy Gillespie. (g) An interview with Mr Gillespie. I am able to identify the people I have listed above because I had dealings with each of them when I was previously employed by the Company as a Human Resources Officer from January 1995 to February 2003. 74 I note that in proceedings involving other matters before Grayson DP on 19 February 2004, in cross examination Mr Gillespie agreed that: · A strike occurred involving Packaging Products employees on 16 February 2003 and that there was no return to work despite orders by Connor C that the striking employees return to work no later than 3.20 pm that day. · There was a meeting of the striking employees at 7.30 am on Tuesday 17 February 2004 and it involved employees of the Hot Strip Mill, Plate Mill and Hot Coil Packaging Department. · A stop work meeting occurred of all steel workers at 7.30 am on Wednesday 18 February 2004. 23, 27 February 2004 75 Mr Talbot said that on 23 February 2004 Mr Gillespie advised him, Mr Lewry and Mr Rooney that he intended holding a stop work meeting of Coil Preparation Line ("CPL") employees within two weeks. In the afternoon of 23 February Mr Talbot said he was approached by Mr Hancock requesting a conference room on site to enable the AWU to hold a stop work meeting with CPL employees on Friday 27 February 2004. Mr Talbot said he declined the request. Mr Rooney said he also declined the request. 76 Mr Hancock rejected Mr Talbot's version of the conversation on 23 February and said his words were to the effect, "Can we have an on-site conference room so I can give a report-back to the coil prep line employees on Friday, 27 February 2004?" Mr Hancock said he was intending to have a meeting in between shifts. 77 A meeting subsequently took place of Numbers 1 and 2 Coil Preparation Line employees on 27 February and between 30 and 40 minutes production time was lost resulting in the loss of 5 tonnes of steel production. Mr Hancock said that he attended the meeting but did not organise it. He said: I became aware that it [the meeting] was on and in my capacity as the Organiser I attended it. I attended this meeting as Mr Rooney declined what I thought was my reasonable request that I have a meeting to discuss the Brambles issue with about four (4) of the crew members. The employees took matters into their own hands and attended the meeting. I was telephoned and was advised the meeting was proceeding and it was in that capacity that I attended. At that meeting I addressed the members and said words to the effect: "There are Orders in place, you must all return to work." The members who attended the meeting then returned to work. Evidence - contemporaneous notes 78 In relation to the evidence in the proceedings, a feature of the prosecutor's case was that virtually every witness had made notes of relevant conversations with union officials. These notes were either taken at the time of the conversation, or committed to writing within a matter of hours of the conversation or in a couple of cases within days of the conversation. The notes were produced in evidence. In contrast, no notes were produced in the Unions' cases and the witnesses relied on their memories as to what was said or done during the dispute - memories, in the case of Mr Gillespie and Mr Hancock, which were not entirely reliable. Where the prosecution's witnesses were unshaken in cross examination as to their testimony, where that testimony reflected the content of notes they had made of conversations or events and where there was no basis to disbelieve the accuracy of the notes or the witnesses' evidence, I have generally preferred the evidence of the prosecution's witnesses where it conflicted with evidence of the Unions' witnesses, especially where the prosecution witness had an independent recollection of the conversation or event. I have been careful, however, to weigh up the competing versions of words said and events that took place before arriving at any final conclusion as to which evidence I should prefer. THE DISPUTE

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79 It was at least as early as July 2002 (and perhaps even March 2002) that the AWU and employees employed in the Packaging Department were advised of the prosecutor's intention to enter into an agreement with Brambles and that employees would be affected. There was no evidence that the AWU made any meaningful inquiry as to how employees would be affected, notwithstanding the fact the Union was advised that Brambles would have a significant role if the agreement were made. The information that a significant part of the prosecutor's packaging products operation may be outsourced should have alerted the AWU to the prospect that the jobs of members employed in those operations might come under threat and that it should seek some early discussions about the implications of the possible outsourcing of jobs. None were sought. 80 I note that the Enterprise Agreement applying to employees in Packaging Products contained detailed provisions regulating the conduct of parties in the event change, including specifically, outsourcing, was to be introduced into the workplace. The Agreement provided in cl 7.1.5 that all parties shared "an intent that there be "zero industrial action" and to that end will actively ensure that employees, delegates and officials will, on each and every occasion where a dispute arises and is not resolved, follow the applicable dispute procedure and not take industrial action." 81 The Agreement also provided (in cl 7.3.2) for a process of consultation that required the employer to notify the employees and Unions affected in writing of the elements of the proposed change, the intended date of commencement for the change and the likely consequences for the employees and Unions affected. It is apparent on the evidence that the prosecutor took early steps, consistent with the terms of the Enterprise Agreement, to advise the AWU and employees affected of its intentions regarding outsourcing. 82 In February 2003, employees were advised in writing that the business case to complete an agreement with Brambles had been approved and that negotiations with that company would proceed. The memorandum advised that the proposed changes would have an impact on a number of people at the finishing end. Whilst it may have been the case at this stage that the prosecutor would not have known the extent of any impact on employees, and the prosecutor had said in its memorandum there was plenty of time for discussion, which may have lulled the AWU into a false sense that change was not imminent, there was still no response at all from the AWU seeking any information on the likely impact of the changes on employees. 83 In July 2003, employees were advised that an agreement had been reached with Brambles and that some 56-65 employee positions would be directly affected. On the day employees were so advised Mr Gillespie spoke to Mr Lewry indicating the agreement was unacceptable. Then followed a series of discussions and meetings between the AWU and the prosecutor regarding the impact on employees of the outsourcing arrangement, with the AWU insisting initially, at least, that employees who would be affected remain employees of the prosecutor and that a primary criterion for selection for any remaining jobs be seniority. The prosecutor's position was that Brambles would hire its own employees and that it was open to displaced employees to apply for those positions. In respect of any positions remaining within Bluescope after the outsourcing arrangement had been put in place, employees would need to apply for those positions with skills being a primary consideration. 84 Ultimately, following the invocation of a cooling-off period by the AWU in January 2004, discussions broke down and industrial action ensued as earlier described. 85 I note that the Enterprise Agreement in cl 8 provided for a process to manage employees who were surplus to requirements after the introduction of workplace change such as outsourcing. This involved finding suitable positions in other parts of the prosecutor's operations and that redundancy was a last resort. I understand that no redundancies occurred as a result of the outsourcing arrangements with Brambles. 86 If the AWU were to seek to have the work outsourced to Brambles performed by Bluescope employees and that selection for the jobs remaining was to be according to seniority (all other things being equal), which was in fact the AWU's position, it should have signalled its position well before Bluescope signed the agreement with Brambles in July 2003. Whilst I consider that the prosecutor itself could have done more than simply relying on its obligations under the Award and Agreement in relation to the fundamental question of how displaced employees would be managed, and should have taken the early initiative in this regard because the prosecutor must have known from its experience in such matters it would become an industrial issue, the AWU failed in its responsibility to its members in not making its position clear until after the agreement between Bluescope and Brambles had been signed off. It had every opportunity to do so and its failure in that regard contributed significantly, in my opinion, to the difficult position it later found itself in when Bluescope and Brambles refused to accept its demands. 87 Moreover, the AWU followed neither the spirit nor the intent of the disputes procedure in the Enterprise Agreement. Rather than seeking the intervention of the Commission and the exercise of the Commission's conciliation and arbitration powers, once it was apparent that agreement was not achievable the AWU contributed to a situation developing that resulted in industrial action in circumstances where the intent of the Agreement was to avoid industrial action. 88 It might be contended that a strategy of resort to the Commission to avoid industrial action is unrealistic when strong emotions are involved in industrial disputes where jobs might be at stake. It has to be accepted that it is unrealistic to expect that industrial action will never occur in the course of a dispute simply because the parties have expressed an intent to avoid industrial action. And, in this case, the Enterprise Agreement does not ban industrial action, except in certain circumstances. But if organisations are not genuine in their expressions of intent in agreements freely made, they should not make such agreements. In this case, there was no attempt by the AWU to seek the assistance of the Commission before the outbreak of industrial action. Moreover, having invoked the 14 day cooling off period in January 2004, which would have enabled the AWU to seek the assistance of the Commission or engage in further discussions with the prosecutor whilst the status quo was maintained, the Union did neither. 89 Accordingly, I cannot accept the AWU's submission that Bluescope should bear the whole, or even a substantial part, of the responsibility for the dispute that eventuated. The lesson to be learnt, however, by both parties is that where change is foreshadowed that may affect the continuing employment of employees the question of the future of those employees must be tackled as early as possible and an understanding of each other's position reached before one party or the other becomes locked into a course of action, an arrangement or an agreement that is impossible to change. 90 Counsel for the AWU submitted that Bluescope refused to ensure that Brambles adhered to the recommendation of Connor C of 13 February 2004, namely, that Brambles give first preference in employment to surplus employees of Bluescope who applied for the vacant jobs and met its requirements and that Bluescope refused to negotiate further about selection criteria, even after Connor C directed on 16 February that the parties confer about the dispute. I note, however, that Mr Gillespie advised Commissioner Connor on 16 February, members of the AWU unanimously rejected the Commissioner's recommendation of 12 February that the parties have urgent discussions. It would seem somewhat pointless for the employer parties in those matters to carry through with the recommendation in circumstances where the AWU had resolved not to engage in discussions. THE ISSUES

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91 The summonses are directed against the AWU and the AFMEPKIU. No summonses were sought against individual members of either of these two organisations or against individual officers or employees of the organisations. Of course, an organisation can only act through its members, officers and employees and, therefore, any contravening act of a member, officer or employee may be held to be a contravention by the organisation. 92 The issue, therefore, in relation to the dispute orders made by Connor C on 16 February 2004 is whether the AWU and its officers and employees took all reasonable steps to ensure compliance with those orders on 16 February 2004 and up to the time that the amended orders came into force at 3.20 pm on 17 February. This is because it was conceded by the prosecutor that at 3.20 pm on 17 February, the earlier orders would have been superseded by the amended orders. 93 The contravention alleged in the summons in relation to the orders of 16 February was that the AWU and its officers and employees did not take all reasonable steps to ensure that "members of the AWU and AFMEPKIU employed by Bluescope Steel in its coil handling and packaging operations shall cease and refrain from taking further industrial action and shall work in accordance with normal work requirements and their contracts of employment effective from 3.00pm on Monday 16 February 2004." The orders took effect from 3.00pm on 16 February and purported to remain in force until Tuesday 30 March 2004 unless varied or rescinded in the meantime. 94 The issues in relation to the amended dispute orders made by Connor C on 17 February 2004 are whether: (a) On 17 and 18 February 2004, the AWU and the AFMEPKIU and their respective officers and employees did not immediately cease and refrain from organising, encouraging or inciting any industrial action contrary to order 1 of the amended dispute orders made on 17 February 2004 in contravention of order 2 of the amended dispute orders made on 17 February 2004. (b) On 17 and 18 February 2004, the AWU and the AFMEPKIU and their respective officers and employees did not take all reasonable and necessary steps to ensure compliance with order 1 of the amended dispute orders made on 17 February 2004 in contravention of order 3 of the amended dispute orders made on 17 February 2004. (c) On 17 February 2004, the AWU and the AFMEPKIU and their respective officers and employees did not advise their respective members of the amended dispute orders by no later than 3.20pm on 17 February 2004 in contravention of order 3(i) of the amended dispute orders made on 17 February 2004. (d) On 17 February 2004, the AWU and the AFMEPKIU and their respective officers and employees did not convene a meeting by 3.20pm on 17 February 2004 of all of their respective members who were engaging in industrial action and directing them to comply with order 1 of the amended dispute orders in contravention of order 3(ii) of the amended dispute orders made on 17 February 2004. (e) On 27 February 2004, the AWU, its officers and employees, and its members employed by the prosecutor at the prosecutor's Port Kembla Steelworks engaged in strike action in contravention of order 1 of the amended dispute orders made on 17 February 2004. (f) On or about 27 February 2004, the AWU, its officers and employees did not immediately cease or refrain from organising, encouraging or inciting any industrial action contrary to order 1 of the amended dispute orders made on 17 February 2004 in contravention of order 2 of the amended orders made on 17 February 2004. (g) On or about 27 February 2004, the AWU and its officers and employees did not take all reasonable and necessary steps to ensure compliance with order 1 of the amended dispute orders made on 17 February 2004 in contravention of order 3 of the amended dispute orders made on 17 February 2004. Whether there was a contravention of 16 February orders on 16 February 2004

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99 Mr Hatcher submitted that having the Briginshaw standard in mind the prosecutor had failed to establish that members of the AWU took action in the Packaging Products Department in contravention of the 16 February orders. It was submitted the prosecutor did no more than show that some employees in that Department took industrial action. I do not accept that this was so. The very clear and direct inference that can be drawn from the evidence was that employees, or some of them, employed in the Packaging Products Department and who engaged in strike action on 16 February 2004 after Connor C made his orders, were members of the AWU. There would have been no need for Mr Gillespie to attend a meeting of striking employees on 16 February at about 1.00 or 2.00pm to recommend they return to work if there were not amongst them, members of the AWU, because the orders were directed not against employees but members of the AWU and AFMEPKIU. The whole history of the dispute involved the AWU seeking to represent the interests of its members, not employees who were non-members (if there were any) to whom the Union owed no duty. Mr Gillespie said in his evidence that at the time of the hearing before Connor C on 16 February, "the AWU was under a lot of pressure from its members … and their anger was increasing." In the proceedings before Connor C Mr Gillespie said he was attempting to explain the strength of that anger. Following those proceedings it is so unlikely as to be absurd that Mr Gillespie would attend at a meeting of employees who were not his angry members to explain the outcome of those proceedings and recommend that they return to work. 100 It was also the case that on 16 February Mr Gillespie advised his delegates in the Hot Strip Mill, Plate Mill and Slab Yard of the industrial action in Packaging Products and they resolved that employees in those areas would participate in the meeting on 17 February. What I am being asked to accept, in effect, is that none of those employees, including the delegates, were members of the AWU and that despite the statement by Mr Gillespie to Mr Talbot at about 9.15am, which I accept was made by Mr Gillespie, that "Everybody is out in Packaging Products, Hot Strip Mill, Plate Mill K Building, Roll Shop …", none of the employees who engaged in strike action after the meeting that morning were members of the AWU.

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101 Mr Hancock's evidence, although confused and to be treated with caution, was that in both versions of the meetings he said he attended, he referred to "members" being present. Mr Phillips said in his oral evidence that those attending the meeting on 17 February were the "combined members" of the AWU, AFMEPKIU and ETU. Finally, Mr Gillespie said of the meeting on 16 February in his oral evidence, "…we made the members clear what the orders were." 102 I am left in no doubt that at the meetings on 16 February and the morning of 17 February members of the AWU were in attendance. 103 The next issue is whether the AWU, its respective officers and employees took all reasonable steps to ensure compliance with order 1 in the orders of 16 February. The issue arose in BHP v AWU as to whether an organiser of the AWU, Mr Anderson, had taken reasonable steps to have members comply with an order that, amongst other things, they cease and refrain from taking any further industrial action. Haylen J held at [116]: It may well have been that Mr Anderson was somewhat tentative in dealing with these employees who were not part of his normal organising area and he may not have felt comfortable in using the words of Rule 64 in seeking to persuade the men, in their difficult mood, to return to work. ... In addressing this group of employees, the tone of his address and the words he used had to be left to the good judgment of Mr Anderson, accepting, as does BHP, that he was encouraging a return to work. To require a formulistic approach to the terms to be used at a volatile stop work meeting in order to secure a return to work is not only naïve but very well may not achieve the type of response to the orders that BHP desired in this dispute. This aspect of BHP's case is rejected. 104 The Full Bench on appeal concurred with the approach of his Honour. At [77]-[79] the Full Bench stated: We are satisfied that Mr Anderson took all reasonable steps, having regard to the circumstances, to ensure compliance with the first dispute order: he used his best efforts to get the members to return to work and to comply with the first dispute order; he spoke emphatically to employees, and his words were in the nature of a direction (albeit not a formal direction under the Rules of the AWU); there was no challenge to his evidence that he could or should have said anything more to employees on the morning of 6 August 2002 to convince them to return to work; there was no evidence that issuing a formal direction under Rule 64 was the proper course of action in the circumstances, or that doing so would have made any difference to the eventual outcome; and his actions in seeking the assistance of Mr Phillips were appropriate.

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79 We should not, therefore, be taken as suggesting that, in a given set of circumstances, a direction under the Rules of the AWU should not be given, or would be unnecessary. However, in the present circumstances, it is our view that Mr Anderson used his best endeavours, having regard to the issues and having also gauged the mood of the employees at the meeting, to ensure compliance with the first dispute order. 105 Mr Gillespie said in his evidence that at the meeting he attended on 16 February he read out the orders and explained their implications. He said he recommended a return to work and said that members were obliged to return to work but judged it inappropriate to issue directions that the employees comply with the dispute orders because of the angry mood of the meeting. 106 It may be accepted that there was hostility amongst members of the AWU at the meeting on 16 February and I also consider in the circumstances, it was understandable that a union official may have felt some reluctance to direct employees to return to work. But I am bound, I believe, to take into account a number of other considerations: 1 Dispute orders are rarely made by members of the Commission. Long experience has demonstrated that most matters can be resolved by conciliation and/or arbitration without resorting to the prospect of sanctions. The making of a dispute order is a serious step given the consequences for contravention. Persons against whom a dispute order is made are bound to take it seriously, especially members, officials and employees of organisations who may be putting in jeopardy the very existence of their organisation. 2 Mr Gillespie is a person of very considerable standing and authority at the steel works. He has a strong personality. He has been associated with industrial relations at the steel works for many years. He was in an environment that was not new to him. Indeed, it was very familiar territory. In my opinion, Mr Gillespie was well capable of taking, and should have taken, a stronger and more effective stand in encouraging members to cease and refrain from industrial action on 16 February 2004 if he had been of a mind to; he did not use his best endeavours to achieve compliance. 3 Unlike the position in BHP v AWU , Mr Gillespie's words to his members on 16 February were not "in the nature of a direction" but only a recommendation; the evidence does not suggest the recommendation was forcefully put by a person with the authority and character to do so. By comparison, Mr Gillespie's attempts at the delegate's meeting on the afternoon of 17 February to secure a return to work were much more forceful (see [131]-[132]).

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4 From the outset (when Bluescope signed the agreement with Brambles in July 2003) Mr Gillespie manifested strong feelings about the prosecutor's role in the dispute and threatened stridently throughout, that the prosecutor would not achieve its objectives and that it would result in a serious industrial dispute involving industrial action. This is apparent from the evidence of the prosecutor's witnesses and the transcript of various proceedings in the Industrial Relations Commission. Mr Gillespie said in proceedings before Connor C on 16 February 2004 that he was prepared to "cop" fines in defence of his Union's position. The unmistakeable inference is that Mr Gillespie was pre-disposed to a course of action that could lead to a contravention of dispute orders. In his submissions to Connor C on 16 February Mr Gillespie stated: Whatever's going to happen …we are prepared as a union to say, "we are not prepared to tolerate what these people want to introduce". If we think it's going to get bigger, then yes, Commissioner, it is going to get bigger, because there is a, quite a significant issue at stake in this particular matter which doesn't only affect the tin mill. It affects all of BHP. 5 That pre-disposition extended to widening the dispute to include the Hot Strip Mill, Plate Mill, Slab Yard and Springhill. As early as Friday 13 February 2004, before any resolution was passed at the meeting on 16 February for delegates in these other areas to be advised of the dispute, Mr Gillespie advised Mr Meena, the President of the Springhill operation, the dispute would escalate to include those areas. Mr Gillespie said in his evidence that he only indicated to Mr Meena that there was the "potential" for the dispute to spread to those other areas. Whatever words Mr Gillespie used, widening the dispute was clearly in his mind on 13 February. Whilst Mr Gillespie said he was only carrying out the directions of the meeting on 16 February in advising delegates in the Hot Strip Mill, Plate Mill and Slab Yard of the dispute in the Packaging Products Department, which had the effect of widening the industrial action, I consider it is more probable than not that Mr Gillespie knew that his advice to the delegates would mean a widening of the dispute and he took no reasonable steps to prevent that occurring. 107 The foregoing considerations lead me to the conclusion that Mr Gillespie did not take all reasonable steps to ensure compliance with order 1 of the orders of 16 February and through that failure of a senior officer of the AWU, the AWU contravened the dispute order. Whether there was a contravention of the 16 February orders on 17 February 2004 108 A further meeting of striking union members occurred on the morning of 17 February 2004. Mr Gillespie was in attendance. Mr Hancock said he was also in attendance and the evidence would seem to point to that being the case.

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111 As I earlier cited in Bluescope Steel v AWU the Full Bench held that: 71 The case law clearly establishes that the extent of the obligation to take "reasonable steps" depends on the particular circumstances existing at the time the obligation arises. Further, we consider that, in the context of the orders made by Connor C, the obligation, as with the requirement to use "best endeavours", refers to all steps that are reasonable to take, and does not extend to all steps that are reasonably open in some narrow or theoretical sense (which could encompass, for example, matters not directly within the particular knowledge or experience of a relevant party). We consider that that was not the intention of the Commissioner in the orders made on 5 August 2002. … 77 We concur with those findings. We are satisfied that Mr Anderson took all reasonable steps, having regard to the circumstances, to ensure compliance with the first dispute order: he used his best efforts to get the members to return to work and to comply with the first dispute order; he spoke emphatically to employees, and his words were in the nature of a direction (albeit not a formal direction under the Rules of the AWU); there was no challenge to his evidence that he could or should have said anything more to employees on the morning of 6 August 2002 to convince them to return to work; there was no evidence that issuing a formal direction under Rule 64 was the proper course of action in the circumstances, or that doing so would have made any difference to the eventual outcome; and his actions in seeking the assistance of Mr Phillips were appropriate. 112 The issue for me to determine in the present proceedings in relation to the industrial action on 17 February is whether the union officials took all steps that were reasonable to take in the particular circumstances existing at the time. The relevant circumstances were as follows: (a) The meeting on 17 February was larger than that on the previous day and involved members of both the AWU and AFMEPKIU. (b) The meeting was vocal and angry and there was a lot of "heat" generated. The officials were subjected to verbal abuse. (c) The meeting was advised of Commissioner Connor 's dispute orders. Mr Gillespie "strongly recommended" compliance with the orders. Mr Phillips also recommended compliance, although his Union was not subject to the order. Mr Gillespie considered that a direction by him to comply would have inflamed the situation, that members would not have heeded any direction and that a direction would not have been of any use whatsoever. 113 Notwithstanding these circumstances, I am not satisfied the union officials took all steps that were reasonable to take to achieve compliance with the dispute orders. That is, the officials did not use their best efforts to get the members to return to work. It may have been the case that a direction by AWU officials would not have achieved compliance, although I am not entirely convinced that the issuing of a direction was not a reasonable step to take. Mr Gillespie was empowered, under the rules of his organisation, to make a direction under rule 64(2). Members of the Union are required to comply with such a direction. 114 In my experience, directions of the sort provided by r 64(2) of the AWU's Rules are rarely made. Such a direction would be unnecessary if officials are able to persuade a meeting of members to follow a particular course of action in an industrial dispute. In most cases, particularly where the official is a seasoned operator like Mr Gillespie, members will follow the recommendation of the official. But where the meeting refuses to follow a path proposed by the official it is open to an AWU official to make a direction. It must be accepted, as the Full Bench pointed out in Bluescope v AWU, that whether such a direction is made will depend on the particular circumstances at the time. For instance, if the making of a direction were likely to cause the official to lose control of the meeting, or escalate the seriousness of the dispute, or attract the likelihood of physical abuse, then expecting the official to make a direction might be unreasonable. I hasten to add that, in the present case, there was no evidence of the likelihood of physical abuse or that the making of a direction would have caused Mr Gillespie to lose control of the meeting. It is difficult, in fact, to imagine how the situation may have led to a worsening of the dispute given that the meeting resolved to continue with the strike action and called for a mass meeting the following day. 115 But whether the making of a direction by an officer of the AWU under r 64(2) is a reasonable step to take must also be considered against the background that the Commission has made dispute orders and a contravention of those orders has serious consequences for the Union. The making of a direction is a step available to the AWU. 116 In my opinion, if the AWU is to successfully contend it was not reasonable to make a direction it has to show that at the relevant time active consideration was given to the making of a direction, that the pros and cons of doing so were weighed up by the relevant official(s) and if the direction is not given, the reasons why that was not a reasonable step to take. In my opinion, neither Mr Gillespie nor Mr Hancock, the relevant officials empowered under r 64(2) to make a direction, took these steps in this case. Moreover, that a union official of Mr Gillespie's status may be confronted with an angry meeting or may be subject to strong verbal abuse at the meeting does not seem to me to be a sufficient basis for declining to make a direction to return to work in circumstances where the official or his or her union is subject to dispute orders. 117 However, I do not rely on the fact that no direction was given to sustain a finding that all reasonable steps were not taken on 17 February to comply with the dispute orders. I consider that, short of making a direction, reasonable steps were not taken. I do not consider recitation of the orders or a strong recommendation following "heated" debate constituted Mr Gillespie speaking emphatically to his members or that his words were in the nature of a direction, as was the case with Mr Anderson in Bluescope v AWU. 118 There are some additional considerations. These are referred to earlier in this decision regarding the meeting on 16 February, namely Mr Gillespie's personal threats of industrial action being widened, his stated disregard in proceedings before Connor C for dispute orders, his standing and authority to be more forceful in securing compliance with the dispute orders by dint of his strong character and his position as Secretary. There was nothing that occurred between the meeting on 16 February and the next meeting on 17 February that would have caused Mr Gillespie to have a different perspective on the direction of the dispute. In other words, if, as I have found, all reasonable steps were not taken at the meeting on 16 February to have the industrial action cease, nothing occurred before 7.00am on 17 February to cause Mr Gillespie to become more forceful or persuasive in his attempts to secure a cessation of the industrial action. I consider that Mr Gillespie was not inclined to, and did not, take all reasonable steps to have his members cease and refrain from taking industrial action.

[95]

Matter No IRC 3226 of 2004 - Summons on the AWU 1 On 16 and 17 February 2004, the AWU and its officers and employees did not take all reasonable steps to ensure compliance with the dispute orders made on 16 February 2004 in contravention of order (ii) of the dispute orders made on 16 February 2004 in matter No IRC 423 of 2004. 2 Pursuant to s 139 of the Industrial Relations Act 1996, on 16 and 17 February 2004, the AWU contravened the dispute orders made on 16 February 2004 in matter No IRC 423 of 2004. 3 On 17 February 2004, the AWU and its officers and employees did not take all reasonable and necessary steps to ensure compliance with order 1 of the amended dispute orders made on 17 February 2004 in contravention of order 3 of the amended dispute orders made on 17 February 2004 in matter No IRC 423 of 2004. 4 On 17 February 2004, the AWU and its officers and employees did not immediately cease and refrain from organising, encouraging or inciting any industrial action contrary to order 1 of the amended dispute orders made on 17 February 2004 in contravention of order 2 of the amended dispute orders made on 17 February 2004 in matter No IRC 423 of 2004. 5 On 27 February 2004, the AWU, its officers and employees did not immediately cease or refrain from organising, encouraging or inciting any industrial action contrary to order 1 of the amended dispute orders made on 17 February 2004 in contravention of order 2 of the amended orders made on 17 February 2004 in matter No IRC 423 of 2004. 6 On 27 February 2004, the AWU and its officers and employees did not take all reasonable and necessary steps to ensure compliance with order 1 of the amended dispute orders made on 17 February 2004 in contravention of order 3 of the amended dispute orders made on 17 February 2004 in matter No IRC 423 of 2004. 7 Pursuant to s 139 of the Industrial Relations Act 1996, on 17 and 27 February 2004, the AWU contravened the amended dispute orders made on 17 February 2004 in matter No IRC 423 of 2004.

Bluescope Steel v AWU and Anor

At a glance

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Decision date

Before

Source

Judgment (98 paragraphs)

Parties

Cases Cited (5)

Cited By (4)