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.
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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.