Fair Work Act 2009

s.418 - Application for an order that industrial action by employees or employers stop etc.

Castlemaine Perkins Pty Limited T/A Castlemaine Perkins

Section 418 application for order that industrial action stop - Non-compliance with order of the Commission - Section 413(5) compliance with orders - Application under s. 603 for variation of order to cure non-compliance - Consideration of principles relevant to exercise of discretion under s. 603 to vary order in circumstances of non-compliance in relation to s. 413(5) - Whether non- compliance with order due to inadvertent/oversight or unacceptably careless disregard/contumaciousness - Finding that discretion to vary order should not be exercised in circumstances of case - application for variation of order refused - Further consideration of whether s. 418 order should issue - Interim order previously issued under s. 420 to remain in place pending further consideration.

[1] Castlemaine Perkins Pty Ltd (CPPL) and United Voice are bargaining for an enterprise agreement. United Voice and its members have been engaging in industrial action and notified CPPL on 5 July 2018 that industrial action would be taken on 11 July 2018. On 6 July 2018 CPPL at 9.22 am, CPPL filed an application for an order under s. 418 of the Fair Work Act 2009 (the Act) to stop or prevent industrial action by United Voice, employees of CCPL who have United Voice as their bargaining representative and officers, servants and agents of United Voice (the industrial action order application).

[2] The application for the industrial action order is made on the basis that CPPL contends that United Voice has not complied with an earlier interim order of the Commission made under s. 229 of the Act in relation to enterprise bargaining (the interim bargaining order) and that any industrial action taken by United Voice and employees for whom the Union is a bargaining representative, is unprotected as provided in s. 413(5) of the Act. The alleged non-compliance identified in the application for the industrial action order was in relation to a term of the interim bargaining order requiring United Voice to post certain material at a specified website address (the posting requirement).

[3] At 2.14 pm on Friday 6 July 2018 a notice of listing for the industrial action order application was issued for a hearing to be held at 2.00 pm on Monday 9 July 2018, consistent with CPPL's request that it be heard after 10.00 am on that date. At 4.47 pm on Friday 6 July United Voice filed an application under s. 603 of the Act (the variation application). The variation application sought to extend the time for compliance with the term of the interim bargaining order relating to the posting requirement and a further requirement of the interim bargaining order that an SMS text message in certain terms be sent by United Voice to its members (the SMS text message requirement). United Voice sought that the variation application and CPPL's application for the industrial action order be heard together.

[4] A mention/directions hearing was conducted at 5.20 pm on Friday 6 July 2018. Permission was granted for both parties to be represented by Counsel at that hearing and in subsequent proceedings on the basis that I was satisfied that the matters were complex and it would enable them to be dealt with more efficiently. CPPL was represented by Mr M Follett of Counsel instructed by Herbert Smith Freehills and United Voice by Mr W Friend QC instructed by Hall Payne Lawyers.

[5] At the mention/directions hearing United Voice conceded that it had not complied in all respects with the interim bargaining order but maintained that the non-compliance was a matter of form rather than substance and that the case was an appropriate one for the Commission to exercise discretion under s. 603 of the Act to amend the interim bargaining order retrospectively. CPPL indicated that it would oppose the application for variation to the interim bargaining order and that the non-compliance on the part of United Voice was significant and deliberate. CPPL further indicated that it would not be in a position to deal with the variation application if it was heard on Monday 9 July 2018 at the same time as the industrial action order application.

[6] United Voice accepted that if the Commission was of the view that it would be unfair to CPPL to require it to respond to the variation application at the hearing on Monday 9 July 2018 in relation to the industrial action order application, then the appropriate course would be to list both matters at a later time and that the Commission would be required by virtue of s. 420(2) to issue an interim order that industrial action not occur until that hearing had been conducted.

[7] After considering the views of both parties, I determined that it would be unfair to CPPL to require it to respond to the variation application on Monday 9 July and that as sought by United Voice, it was desirable that both applications be heard together. Accordingly both applications were listed for hearing on Thursday 12 July 2018 and as required by s. 420(2) of the Act an interim industrial action order was made pending the hearing and determination of both matters. A decision and order to that effect was issued on Monday 9 July 2018.[1]

[8] The industrial action order application and the variation application were heard on Thursday 12 July 2018. Evidence for CCPL was given by:

• Mr Adam Ray, Solicitor employed by Herbert Smith Freehills;[2] and

• Ms Michelle Wicks, Workplace Relations Leader Lion Pty Ltd.[3]

[9] Mr Ray and Ms Wicks were not required for cross-examination and their witness statements were admitted without objection. Evidence for United Voice was given by Ms Neva Woolmer, Media and Communications Director for United Voice.[4] Ms Woolmer was cross-examined. United Voice produced a number of emails and other documents at the request of CPPL which were shown to Ms Woolmer during cross-examination and were tendered. The parties agreed to proceed on the basis that the application for a variation to the interim bargaining order would be determined first as if that application was granted, the basis for the industrial action order would no longer exist.

1. THE VARIATION APPLICATION

2.1 The approach to varying or revoking decisions under s. 603

[10] United Voice seeks to vary the interim bargaining order pursuant to s. 603 of the Act. section 603 provides:

(1) The FWC may vary or revoke a decision of the FWC that is made under this Act (other than a decision referred to in subsection (3)).

Note: If the FWC makes a decision to make an instrument, the FWC may vary or revoke the instrument under this subsection (see subsection 598(2)).

(2) The FWC may vary or revoke a decision under this section:

(ii) if the kind of decision is prescribed by the regulations - a person prescribed by the regulations in relation to that kind of decision.

(3) The FWC must not vary or revoke any of the following decisions of the FWC under this section:

(a) a decision under Part 2-3 (which deals with modern awards);

(b) a decision under section 235 or Division 4, 7, 9 or 10 of Part 2-4 (which deal with enterprise agreements);

(c) a decision under Part 2-5 (which deals with workplace determinations);

(d) a decision under Part 2-6 (which deals with minimum wages);

(e) a decision under Division 3 of Part 2-8 (which deals with transfer of business);

(f) a decision under Division 8 of Part 3-3 (which deals with protected action ballots);

(g) a decision under section 472 (which deals with partial work bans);

(h) a decision that is prescribed by the regulations.

Note: The FWC can vary or revoke decisions, and instruments made by decisions, under other provisions of this Act (see, for example, sections 447 and 448)."

[11] It is not in dispute that the interim bargaining order sought to be varied is a "decision" for the purposes of s. 603 of the Act and that subject to being satisfied that the present case is an appropriate one for the exercise of the discretion in s. 603, that the section empowers the Commission to vary the interim bargaining order retrospectively as sought by United Voice.

[12] The discretion in s. 603 of the Act is expressed in broad terms. However, as the High Court observed in Norbis v Norbis[5], it does not follow that, because a discretion is expressed in broad terms, the courts should refrain from developing rules or guidelines affecting its exercise.[6] It was also observed in that case that there is a need to balance the desirability of doing justice in every case with the need for consistency in adjudication. In Grabovsky v United Protestant Association of New South Wales[7] Justice Ross considered the outer limits of the power in s. 603 of the Act. His Honour noted that the starting point is the ordinary and grammatical meaning of the words in the section and that it must also be read in context by reference to its legislative purpose. It was further noted that the apparent scope of discretion such as that in s. 603 may be limited by other sections of the Act which may require a provision to be read more narrowly than it would if it stood on its own.[8]

[13] In Grabovsky the applicant was seeking to vary four decisions of members of the Commission including a decision of a Full Bench in an unsuccessful appeal by the applicant, and in essence was asking that the Commission overturn the Full Bench decision on the grounds that it was wrongly decided. In finding that the case advanced by the applicant was not an appropriate one for the exercise of the discretion in s. 603 of the Act Justice Ross held:

"[37] It is apparent from its terms and the legislative context that s.603 is intended to be broader than a statutory form of the slip rule. So much is clear from s.602, which is directed at slip rule problems. The question is how broad the power is and in what circumstances should it be exercised?

[38] The power to vary or revoke a decision has generally only been exercised where there has been a change in circumstances such as to warrant the variation or revocation of the original decision or, where the initial decision was based on incomplete or false information, fraudulently procured or otherwise.

[39] As a general proposition applications to vary or revoke a decision should not be used to re-litigate the original case. After a case has been decided against a party, that party should not be permitted to raise a new argument which, deliberately or by inadvertence, it failed to put during the original hearing when it had the opportunity to do so."[9] (citations omitted)

[14] In Endeavour Energy[10] (cited in Grabovsky) Senior Deputy President Hamburger was considering an application to vary a decision in relation to the manner of testing for drugs in circumstances where the manner of testing had been determined in the original decision which was then upheld on appeal by the applicant. Senior Deputy President Hamburger observed:

"[8] Section 603 of the Act empowers the Fair Work Commission to vary or revoke a decision made under the Act (with certain exceptions), either on its own motion or on application by a person affected by the decision. There are no legislative criteria prescribing when or how this power should be exercised. However, as the applicant acknowledged during the proceedings, it is a power that is rarely exercised and in many respects is exceptional because it is contrary to the principle regarding the finality of decisions.

[9] Applications to vary or revoke a decision should not be used to re-litigate the original case. It would generally be unacceptable, for instance, to allow a party, after a case has been decided against it, to raise a new argument which, deliberately or by inadvertence, it failed to put during the original hearing when it had the opportunity to do so. In this case, the applicant submitted that since the original decision was made, there has been a change in circumstances such that the applicant can no longer comply with the original decision. I agree that if there has been such a change this could constitute a reasonable basis for a variation of the original decision."[11]

[15] In Esso Australia Pty Ltd v Australian Workers' Union[12] the High Court made some observations about the power in s. 603 of the Act. In that case the Court was considering whether the requirement in s. 413(5) that persons organising or engaging in industrial action must not have contravened any orders that apply to them in relation to the relevant agreement, included orders that were in operation at the time of the contravention but had ceased to operate. The facts in Esso were that the Australian Workers Union (AWU) had engaged in industrial action after an order had been made by the Commission under s. 418 of the Act, and the order had ceased to operate a few days after the contravention. Esso contended that s. 413(5) was enlivened regardless of the fact that the order had ceased to operate when further industrial action was taken. One of the arguments advanced by the AWU to the contrary was that to construe s. 413(5) in the manner contended for by Esso would be productive of capricious unjust results. Identifying s. 603 of the Act as a mechanism to address such issues the majority said:

"The Fair Work Commission has broad powers under s 603 of the Fair Work Act to vary or revoke orders, including power to vary or revoke orders retrospectively. The very considerable breadth of the power accorded by s 603 stands in contrast to the more limited power accorded by s 602 to correct "obvious errors". Thus, although it has been said that courts should eschew the exercise of inherent power to vary an order nunc pro tunc where the variation would have the effect of altering the substantive rights of the parties, the statutory power accorded by s 603 is different."[13]

[16] In concluding that the power under s. 603 could be exercised on a retrospective basis the Court observed that the former Australian Industrial Relations Commission had always been entitled to vary or set aside an award provision in accordance with the Act even if its new provision operated "locally, temporarily, prospectively or retrospectively, provided the provision would have been within the scope or ambit of the original dispute". The Court went on to hold:

"...And the same is surely true of the Fair Work Commission's statutory power under s 603 of the Fair Work Act to vary or revoke orders relating to a proposed agreement or matters arising during the bargaining for such an agreement. To adopt and adapt the language of Kirby J in Emanuele v Australian Securities Commission, it may be inferred that Parliament contemplated that oversight and inadvertence would sometimes occur for which the Fair Work Commission's powers of variation and revocation under s 603 would be available."

Hence, if a document cannot be filed within the time specified in an order made by the Fair Work Commission, an application might be made for the time to be enlarged, or alternatively for the order to be revoked and a new order made allowing greater time, and, if there were good reason for the failure to file the document timeously, no doubt time would be enlarged, especially when it is appreciated that to refuse to enlarge time would preclude the possibility of protected industrial action by reason of s 413(5). Similarly, if a document were filed within time but later found not to comply with requirements imposed by the Fair Work Commission, and there was a satisfactory excuse for the failure in compliance, time in which to file a document complying with requirements might be enlarged retrospectively.

If, in exercise of the power conferred by s 603, an order were made by the Fair Work Commission varying or revoking a previous order with effect from a time earlier than the alleged contravention, the effect would be that there would not have been a contravention of the order. If, however, it appeared that the failure to file the document on time or to file what was required by the previous order was the result of contumaciousness or unacceptably careless disregard for the terms of the order, or if it were thought that to alter the order retrospectively would amount to an inappropriate or unfair interference with the rights of the parties, it might be expected that the Fair Work Commission would decline to exercise the power conferred by s 603 with the effect that the immunity attaching to protected industrial action would not arise.

Moreover, whether or not s 603 were available or adequate to overcome all such procedural or inconsequential breaches of orders by variation or revocation of those orders, the possibility that minor or unintended breaches of orders could preclude protected industrial action would not be a sufficient reason to construe s 413(5) as it was construed by the Full Court."[14] (citations omitted)"

[17] Whether a variation of the interim bargaining order is made under s. 603 is a discretionary decision. The majority of the High Court described such a decision in Coal and Allied Operations Pty Ltd v CFMEU[15] as follows:

"Discretion" is a notion that "signifies a number of different legal concepts". In general terms, it refers to a decision-making process in which "no one [consideration] and no combination of [considerations] is necessarily determinative of the result." Rather, the decision-maker is allowed some latitude as to the choice of the decision to be made. The latitude may be considerable as, for example, where the relevant considerations are confined only by the subject-matter and object of the legislation which confers the discretion. On the other hand, it may be quite narrow where, for example, the decision maker is required to make a particular decision if he or she forms a particular opinion or value judgment."[16] (citations omitted).

[18] The interim bargaining order which United Voice seeks to vary was made following an application by CPPL on 3 April 2018, under s. 229 of the Act. An amended application was filed by CPPL on 19 April 2018. The s. 229 application sought orders in relation to a number of matters including that United Voice be restrained from organising obstructive rallies or pickets at the Brewery. The s. 229 application was heard by Commissioner Hunt on 17 and 18 May. The Commissioner reserved her decision at the end of the hearing and it remains reserved. On 31 May 2018 CCPL applied for an interim bargaining order pending the Commission's determination of the s. 229 application. Ms Wicks' evidence is that the application for the interim bargaining order was made as a result of United Voice organising, and its representatives participating in, another obstructive rally at the Brewery. The interim bargaining order was made by Commissioner Hunt on 8 June 2018 and remains in effect. Relevantly the terms of the interim bargaining order are:

2. Until the determination of matter B2018/223 or further order, United Voice (whether by itself, its officers, servants, agents or howsoever otherwise) be restrained from:

(a) preventing, hindering or interfering with, or attempting to prevent, hinder or interfere with, free access to and free egress from the Site by any person or vehicle, whether by themselves or by any object or vehicle; and

(b) advising, causing, inducing, procuring or inciting any person to do or attempt to do any of the things restrained by sub-paragraph 2(a) of these orders.

3. By 4.00pm on Monday, 11 June 2018, United Voice must send an email to each of its employees, officers and delegates who have since July 2017, had any involvement or association with the Site and the negotiations for the Proposed Agreement and for whom it has an email address, attaching a copy of these orders and containing a message substantially in the following terms:

The Fair Work Commission has made an interim bargaining order. The interim bargaining order, during its period of operation, restrains United Voice (including through its officers, servants and agents) from preventing, hindering or interfering with persons or vehicles accessing or exiting the XXXX Brewery Site at 185 Milton Road, Milton, Qld. You are hereby advised that United Voice no longer authorises or supports any obstruction of access to, or egress from, that site whilst the interim bargaining order is in operation.

Specifically, as an employee, officer or delegate of United Voice, you must not, whilst the interim bargaining order is in operation:

(1) prevent, hinder, interfere with, or attempt to prevent, hinder or interfere with, free access to and free egress from the XXXX Brewery Site by any person or vehicle; or

(2) advise, cause, induce, procure or incite any other person to do so.

For a full and complete picture of what you, as an employee, officer or delegate of United Voice must not do, please review the interim bargaining order made by the Fair Work Commission, a copy of which is attached to this email.

4. By 4.00pm on Monday, 11 June 2018, United Voice must:

(a) send an email to each of the Employees who are its members and for whom it has an email address; and

(b) send an SMS text message to each of the Employees who are its members and for whom it has a mobile phone number;

containing a message substantially in the following terms:

The Fair Work Commission has made an interim bargaining order. The interim bargaining order, during its period of operation, restrains United Voice (including through its officers, servants and agents) from preventing, hindering or interfering with persons or vehicles accessing or exiting the XXXX Brewery Site at 185 Milton Road, Milton, Qld. You are hereby advised that United Voice no longer authorises or supports any obstruction of access to, or egress from, that site.

5. By 4.00pm on Monday, 11 June 2018, United Voice must:

(a) post on its Facebook page at "United Voice Queensland" (https://www.facebook.com.au/unitedvoiceq/); and

(b) post prominently on the homepage of the internet site of its Queensland Branch (https://www.myunitedvoice.org/);

a copy of this order and a message substantially in the following terms:

The Fair Work Commission has made an interim bargaining order. The interim bargaining order, during its period of operation restrains United Voice (including through its officers, servants and agents) from preventing, hindering or interfering with persons or vehicles accessing or exiting the XXXX Brewery Site at 185 Milton Road, Milton, Qld. You are hereby advised that United Voice no longer authorises or supports any obstruction of access to, or egress from, that site.[17]

2.3 United Voice evidence and submissions in the variation application

[19] The terms of the interim bargaining order that United Voice seeks to vary are respectively paragraph A.4(b) (the SMS text message requirement) which required an SMS text message to be sent by the Union to members in substantially the terms prescribed with a link to the interim bargaining order (the SMS text message requirement) and paragraph A.5(b) which required a message in substantially the terms prescribed in the interim bargaining order to be posted at a particular website address with a link to the order (the posting requirement). The time for compliance with both requirements of the interim bargaining order was 4.00 pm on 11 June 2018. The variation to the interim bargaining orders sought by United Voice is to extend the time for compliance with the SMS text message requirement to 29 June 2018 and the time for compliance with the posting requirement to 19 June 2018.

[20] United Voice contends that it is an appropriate exercise of the Commission's discretion to vary the bargaining order in the manner sought and it would be unjust in the circumstances for CPPL to insist on strict compliance with the relevant paragraphs. United Voice submits that the paragraphs of the bargaining order with respect to which the variation is sought, are ancillary and are intended to ensure in a number of overlapping ways that the purpose of the bargaining order is achieved. The substantive part of the bargaining order dealing with access and egress to the site, has been complied with and has achieved its purpose and continues to do so.

[21] The steps United Voice took following the issuing of the bargaining order and the reasons for taking those steps were outlined it its application for a variation to the interim bargaining order and in the statement of Ms Woolmer. It is convenient to deal first with paragraph A.5(b) of the interim bargaining order which required United Voice to "post prominently on the home page of the internet site of its Queensland Branch (https://www.myunitedvoice.org/)" a copy of the interim order together with an explanatory message in substantially the terms set out in the order. In its variation application United Voice states that the interim bargaining order: "did not provide any further detail about how A.5(b) was to be complied with." United Voice further states in its variation application that it caused the interim bargaining order to be "placed prominently on the news page of its website, at www.myunitedvoice.org/news." United Voice also states in the variation application that it did not understand the homepage stipulated in the interim bargaining order to be the homepage of its website and did not have the ability to access and edit the page nominated in the interim bargaining order "at that time."

[22] Ms Woolmer's evidence is that from time to time, communications staff update the website of United Voice, "https://www.myunitedvoice.org/", the Facebook pages of the Union and its Twitter pages and Instagram account. According to Ms Woolmer, the Union publishes content on these social media platforms and they are the main methods of electronic communication utilised by United Voice. The website was created by the Union's National Office in February or March 2018. Ms Woolmer states that it is not a significant part of the Union's communication strategy and the Union does not generally "direct traffic" concerning its campaigns to the website. Rather, United Voice directs traffic to the social media platforms used to host the relevant content.

[23] Ms Woolmer also states that the primary role played by the website "https://www.myunitedvoice.org/" is to host background information about the Union and updates that are primarily issued via other digital channels. This latter material is placed behind the news tab of the website located at "www.myunitedvoice.org/news." Ms Woolmer tendered a screenshot of the top part of the page "https://www.myunitedvoice.org/" as at 22 June 2018. According to Ms Woolmer the first row at the top of the page is controlled by the National Office of United Voice. The second row is controlled by the Queensland branch with the first tab on that row being "News". Ms Woolmer states that the "News" tab is the most frequently updated with the contents of the other tabs being more static.

[24] Ms Woolmer further states that there is no home page on the website and the webpage "https://www.myunitedvoice.org/" is a "landing page" rather than a "homepage". Ms Woolmer's understanding is that a homepage contains standalone content which can be accessed without following a link to another part of a website while a landing page is a place to go to see "other sorts of things that are available within the website and, at the discretion of the reader, to follow the links that are contained on the landing page to another part of the website."[18] Ms Woolmer also stated that prior to 18 July 2018 her team had not accessed or edited the landing page of the website.

[25] Ms Woolmer said that she was provided with a copy of the bargaining order at around 12.30 pm on 8 June 2018. Ms Woolmer received instructions from Mr Damien Davie, a Co-ordinator at the Union, to ensure that United Voice complied with the parts of the bargaining order that the communications team had responsibility for - paragraphs A.3, A.4 and A.5 which included the SMS text message and the posting requirements. Ms Woolmer said that "at the same time", the Union wanted to send a "positive message" to members and update them about the campaign.[19] In relation to compliance with the posting requirement, Ms Woolmer said that she drafted a post to be put on the United Voice website. For reasons involving the landing page/homepage issue identified by Ms Woolmer, the post was made on "https://www.myunitedvoice.org/news" which Ms Woolmer said that she understood at the time to be compliant with the order. The website post had three parts. One part was the "message text" required by the bargaining order which Ms Woolmer said was "available in full". Another part was a link contained within the text required by the bargaining order, to the interim order itself.

[26] Ms Woolmer said that the link was the only way to publish the interim bargaining order because a PDF copy of the document could not be displayed and the text of the order was so lengthy that character limits would result in it being "squeezed down" such that the first few lines only would be shown and a reader would be required to click a further button to see the balance of the bargaining order. A third part of the post was a heading: "MEDIA RELEASE: XXXX WORKERS RAMP UP FIGHT TO HIT LION WHERE IT HURTS." It should be noted that "XXXX" is a reference to a beer produced by CPPL at the Brewery where the present dispute has been occuring. According to Ms Woolmer this was a reference to a media release published by the Union that day, which was available by clicking "read more" at the bottom of the post.[20] The media release, the text of which was tendered by Ms Woolmer in a Microsoft word document appended to her statement, contained the following paragraphs:

"...United Voice Queensland Coordinator Damien Davie said the workers would not be discouraged by the Interim Order issued by Fair Work today, and it would only make them more determined..." [21]

[27] Ms Woolmer said that prior to posting the material on the website on 11 June 2018, she circulated a Microsoft word document detailing the steps she proposed to take in compliance with the interim bargaining order to persons she understood were responsible for the carriage of the case on behalf of United Voice. That document which was appended to Ms Woolmer's statement included the text to be published and the website address to which it would be published. According to Ms Woolmer, Mr Damien Davie, Co-ordinator and Mr Simon Ong, an Industrial Officer of United Voice, confirmed the steps that Ms Woolmer proposed to take as meeting all of the requirements of the bargaining order.

[28] On 18 June 2018 when it came to Ms Woolmer's attention that CPPL was alleging that United Voice had breached the bargaining order in relation to the posting requirement in paragraph A.5(b) Ms Woolmer was instructed to duplicate the post she had made at "www.myunitedvoice.org/news" and place it on "www.myunitedvoice.org/." Ms Woolmer said that she did not know how to do this as she had not accessed or edited the latter webpage previously and set about attempting to comply at around 11.30 am on 18 June 2018 by causing one of her staff to look into the matter as a priority. According to Ms Woolmer, efforts to achieve the desired result required four different people looking into the matter which took "some time". Ms Woolmer said that the task of accessing and editing the "landing page" was completed by 1.00 pm on that date.

[29] Ms Woolmer said the post on the "landing page" made on that date was simply the news item carried over to the landing page. The post had four parts: a heading "FAIR WORK COMMISSION INTERIM BARGAINING ORDER"; the required explanatory text in full; a hyperlink within the text to the bargaining order and a preview of the full news story which the reader could view by clicking on "READ MORE". For the same reasons as applied to the previous post, the full text of the bargaining order could not be placed on the landing page and the hyperlink was used instead.

[30] Under cross-examination Ms Woolmer said that she understood what a URL is and that she proposed to post the explanatory text and the order on the URL "www.myunitedvoice.or/news." Ms Woolmer agreed that this was not the URL specified in the bargaining order. Ms Woolmer could not recall whether she asked anyone about the appropriateness of taking this step. Ms Woolmer was shown an email sent by her to Mr Davie at 8.59 am on 11 June 2018. That email attached the Microsoft word document attached to Ms Woolmer's statement as Annexure "NW-2" discussed above, and requested Mr Davie to review the material. Mr Davie responded to the email at 1.27 pm on 11 June 2018 stating that the material was "good to go".[22]

[31] A further email chain commencing with an email from Mr Ong to Ms Woolmer at 1.45 pm on 11 June 2018 was also shown to Ms Woolmer in cross-examination. The document attached to that email is the Microsoft Word document sent by Ms Woolmer to Mr Davie at 8.59 am on 11 June 2018 but incorporating some track changes which were inserted by Mr Ong. The track changes were made to the text set out in A.3, A.4(b) and A.5(b) of the bargaining order to the effect that the first paragraph of the text was amended as follows:

"The Fair Work Commission has made an interim bargaining order. The interim bargaining order, during its period of operation, restrains United Voice (including through its officers, servants and agents) from preventing, hindering or interfering with persons or vehicles accessing or exiting the XXXX Brewery Site at 185 Milton Road, Milton, Qld. You are hereby advised that United Voice no longer does not authorises or supports any obstruction of access to, or egress from, that site."[23]

[32] The covering email from Mr Ong states that he will telephone Ms Woolmer to discuss the changes. Ms Woolmer said that Mr Davie forwarded a copy of her email to Mr Ong and that she did what Mr Ong asked and made the changes to the text. Ms Woolmer agreed that each of the final publications of the text was made in the form proposed by Mr Ong and that she did not raise in the discussion that she had with Mr Ong, the fact that Mr Ong had changed the text set out in the bargaining order. Ms Woolmer also agreed that the initial publication on 11 June 2018 of the material required by the bargaining order had taken no more than two hours. Further, Ms Woolmer agreed that the later publication of the material on 8 June 2018 at the website address "www.myunitedvoice.org" had taken one and a-half hours and that the posting of the material on the website specified in the bargaining order could have been achieved by 4.00 pm on 11 June 2018.[24]

[33] In relation to her evidence about the distinction between a home page and a landing page, Ms Woolmer said that this was her understanding and interpretation and how United Voice refers to its website.[25] In relation to her definition of a home page, Ms Woolmer said that it would have more comprehensive content than would be found on a landing page and such content would be accessible without following a link to another page. Ms Woolmer also agreed that a reader does not have to click off a home page to get content from another page. A landing page is to enable persons to access information on other parts of the website and to navigate from.[26] Ms Woolmer was shown Annexure MW-11 to the statement of Ms Wicks comprising a printout of United Voice's Twitter feed. Ms Woolmer agreed that under the heading and the words: "Official Twitter account of United Voice Queensland. Authorised by Gary Bullock, Branch Secretary..." there is a reference to "myunitedvoice.org". In response to the proposition that this is the home page of United Voice, Ms Woolmer said: "I don't know." Ms Woolmer agreed that assuming her understanding of the nature of the page on which the material was posted was correct, it was not the page specified in the interim bargaining order.[27]

[34] In response to the proposition that the news tab where the information required by the interim order was posted was not the homepage of United Voice, Ms Woolmer said that it while it was not the home page it was the most prominent section of the Union's website that is most used. In response to the proposition that if the posting on the incorrect website was not deliberate, it was at least careless, Ms Woolmer said that it was an oversight which was rectified as soon as it was brought to the Union's attention.[28] Ms Woolmer disputed that the posting of the required text on the news link was deliberate non-compliance with the order.[29] Ms Woolmer said that when the bargaining order was given to her she looked that the URL and realised that it was referring to the "landing page" but did not make inquiries about how to access that page.[30] Ms Woolmer later agreed that the effect of putting the message on the news link of the website was that the message was invisible to a person who navigated to what Ms Woolmer called the "landing page" and that person would have to click on another link to see the message.

[35] Ms Woolmer also agreed that a person viewing the post the Union made on Facebook would see the "positive" message that United Voice wanted to convey about the campaign and not the content of the order which could only be viewed by clicking on a further link. Ms Woolmer maintained that the introductory text put into the post by United Voice was to encourage people to continue reading. Ms Woolmer disputed that the real reason for structuring the posts in the way that she had was that most people would not see the content required by bargaining order unless they took another step and clicked the "See more" link. [31]

[36] Ms Woolmer was shown a post on the webpage "https://myunitedvoice.org" and agreed that it was made by a Queensland employee of United Voice at some time in February or March 2018 when the National Branch created the website. In response to the assertion that this evidenced that her statement that the Queensland Branch could not access that page was incorrect, Ms Woolmer said that the employee who had made the earlier post was not in the office at the time that she was posting the material required by the bargaining order.[32]

[37] In relation to the SMS message requirement in paragraph A.4(b) of the bargaining order, the content of the SMS drafted by Ms Woolmer was as follows:

"United Voice won't be discouraged by the interim bargaining order issued by Fair Work Commission, it only makes us more determined. More info: bit.ly/20P27N"

[38] The SMS message contained a link to the initial publication containing the required text of the bargaining order on https://www.myunitedvoice.org/news. Ms Woolmer said that when she was putting the proposed wording for the SMS together she was conscious that text messages sent by the Union must contain 160 characters or less in order to be sent through the program that United Voice uses to send mass text messages. This requirement is also set out in the applicable United Voice procedure. Ms Woolmer confirmed that she sought approval of the proposed wording for the SMS text message by way of the Microsoft Word document she sent by email to Mr Davie at 8.59 am on 11 June 2018. Mr Davie approved the message by return email sent at 1.27 pm on 11 June 2018. Mr Davie also forwarded the Microsoft word document to Mr Ong who amended the text of the message which had been set out in the interim bargaining order and which was required by the order to be communicated in substantially those terms. Ms Woolmer than caused the SMS message to be sent out by administration staff of the Union on 11 June 2018.

[39] Ms Woolmer said that she understood at the time that the message complied with the SMS text message requirements in the interim bargaining order as it had a link to the text required in the order. With the benefit of hindsight and the issue having been raised by CPPL, Ms Woolmer accepts that the content of the message could have more accurately reflected the words required by the interim order. On 27 June 2018 Ms Woolmer was advised by Mr John Spreckley, Industrial Coordinator with United Voice, that there was a concern that the SMS message did not include the text specified in the bargaining order. Ms Woolmer advised Mr Spreckley that the text in the order could not be sent as an SMS message because of the character limit and for this reason it was sent as a link, as to send the full text would have occupied four text messages and been unintelligible. Following discussions between Ms Woolmer and Mr Spreckley, a further text message was sent to United Voice members on 29 June 2018 in the following terms:

"FWC Interim Order restrains United Voice from hindering access at XXXX Brewery. Such conduct is not authorised by UV. Please read: bit.ly/2y0P27N."

[40] That text message also contained a link to the website "https://www.myunitedvoice.org/news" that revealed the full content set out in the bargaining order. Ms Woolmer agreed under cross-examination that the text in the first SMS message was more positive than the text of the bargaining order of the Commission. In response to the proposition that the link to the text of the bargaining order was just a series of numbers and letters, Ms Woolmer said that it is common practice to shorten a web link for an SMS to ensure that character limits are not taken up. Ms Woolmer also maintained that the second text message sent on 29 June 2018 was an abbreviated version of the text required in the interim bargaining order. Ms Woolmer agreed that the required text in the interim bargaining order could have been sent in four consecutive text messages but maintained that this was not desirable from a communications perspective.

[41] Ms Woolmer was taken to a witness statement she made on 22 June 2018 in support of an earlier application to vary the bargaining order which was filed by United Voice on that date and discontinued on 27 June 2018.[33] In relation to assertions in the earlier witness statement to the effect that she complied with the interim bargaining order, Ms Woolmer said that she believed those statements to be true at the time she made them. Ms Woolmer agreed that none of the documents referred to in her earlier statement were appended to that statement. Ms Woolmer could not explain why Mr Spreckley did not raise non-compliance with the SMS text message requirements in paragraph A.4 of the interim bargaining order until 16 days after the date for compliance.

[42] Ms Woolmer said that she was not aware that on 25 June 2018 CPPL had requested that documents referred to in her first witness statement be provided to its lawyers by 2.00 pm on 27 June 2018 or that the first variation application was withdrawn by United Voice before the documents were provided. Ms Woolmer rejected the proposition that it was only after this request was made that United Voice sent a new SMS text message to members as it realised that: "the jig was up" in respect of the first SMS text message.[34]

[43] In its outline of submissions United Voice submitted that the present case is an appropriate one for the Commission to exercise its discretion to vary the interim bargaining order for the following reasons:

• the object of the interim bargaining order - the cessation of interference to access and egress at the Brewery - was achieved in a timely way;

• the orders not complied with were strictly ancillary to the main purpose of the order;

• the Union has fully complied with paragraphs A.3, A.4(a) and A.5(a) of the interim bargaining order;

• the Union has promptly corrected any default in compliance;

• CPPL would not be prejudiced by the variation other than becoming subject again to protected industrial action;

• by contrast, in the absence of a change to the status quo, United Voice members at the brewery would be prejudiced by any industrial action after 4.00 pm on 11 June 2018 being unprotected industrial action because of the operation of s. 413(5) of the Act on a prior contravention of the interim bargaining order;

• the proposed variation would not amount to an inappropriate or unfair interference with the rights of CPPL;

• it would be unfair to punish the United Voice members at the brewery for the casual and unintended error of Union employees; and

• the bargaining position of the employees would be adversely affected in a way totally disproportionate to the effect of any default if the order is not varied.

[44] United Voice also submits that it is not consistent with the objective of enterprise bargaining to shut out a party from using its principal means of bargaining - protected action - because of a default in respect of an order which, even if not innocent, did not in any way detract from the effectiveness of the order itself. United Voice further submits that to allow that situation to continue indefinitely would be to impose a punishment for the default which far outweighs the gravity of any offence.

[45] According to United Voice the justice of the case renders it appropriate for the Commission to exercise its discretion to vary the interim bargaining order as sought and to do so would strike a balance between the interests of CPPL and United Voice, particularly the interests of members employed by CPPL at the brewery site.

[46] Mr Friend submitted at the hearing that the conduct the interim bargaining order is directed to provides context for consideration of the variation application. United Voice accepts that it did not comply with the SMS text message requirements in the interim bargaining order but maintains that to comply would have resulted in confusion because of the character limit for text messages. In relation to Mr Ong's amendments to the message that United Voice was required to communicate, the only relevant difference is that the message set out in the interim bargaining order contained an implied admission about the blocking of access and egress to the site. The interim bargaining order did not require strict compliance as evidenced by the fact that the Union was ordered to send a message in "substantially the terms" set out in the order. This requirement had been complied with and the de minimis principle should be applied.

[47] Mr Friend further submitted that all non-compliance on the part of United Voice had been rectified and that the broad power of the Commission to amend the interim bargaining order should be exercised in the circumstances of the present case, where there was an explanation for the failure to comply based on a misunderstanding of the requirements. In exercising the broad discretion, Mr Friend submitted that the Commission should take into account that the fundamental obligation in the interim bargaining order was complied with. Any defects have been cured and the adverse consequences if the interim bargaining order is not varied are out of all proportion to the defect in compliance, and will mean that employees are not able to take protected industrial action for the rest of the bargaining. According to Mr Friend an outcome in the present case where employees are deprived of the right to take protected industrial action would be a triumph of form over substance.

[48] In relation to the differences between the statements made by Ms Woolmer with respect to the first and the second variation applications, Mr Friend submitted that the statements were based on Ms Woolmer's belief at the relevant time.

• 2.4 CPPL evidence and submissions in the variation application

[49] Ms Wicks gave evidence about CCPL's s. 229 application for a good faith bargaining order including allegations about a range of conduct engaged in by officials of United Voice. Those matters are the subject of proceedings before Commissioner Hunt and a decision in relation to the application is currently reserved. CPPL also asserted that United Voice had failed to attend s. 240 bargaining conferences conducted by Commissioner Hunt. After the hearing in relation to the s. 229 application, United Voice participated in what Ms Wicks described as another obstructive rally at the Brewery. This caused CPPL to make an application for an interim bargaining order pending the final determination of the s. 229 application. As previously noted the interim bargaining order was issued by Commission Hunt on 18 June 2018. I have not had significant regard to the conduct on the part of officers and officials of United Voice in relation to the s. 229 application and the issuing of the interim bargaining order on the basis that those matters are being considered in the proceedings before Commissioner Hunt and the decision in relation to those matters is reserved. The present case is primarily concerned with non-compliance with the interim bargaining order rather than the circumstances which led to the order being issued.

[50] In relation to non-compliance with the interim bargaining order, Mr Ray gave evidence about steps he took to access the webpage "www.myunitedvoice.org" (referred to by Mr Ray as the United Voice Queensland homepage) on 12 and 13 June 2018 and tendered screenshots of various information he found at that website address. Mr Ray said that on viewing the website address on 12 and 13 June 2018 he could not see anywhere on the page anything resembling the message required to be posted by United Voice pursuant to paragraph A.5 of the interim bargaining order or any link to that order. Mr Ray did observe a box referring to a media release with a banner containing the words "KEEP XXXX ON HOME TURF" and the heading "MEDIA RELEASE: XXXX WORKERS TAKE ACTION TO KEEP QLD JOBS LOCAL" below the banner. The box which was approximately half way down the page contained a link to another page which contained a media release about XXXX workers voting to take industrial action.

[51] Mr Ray navigated back to the webpage "www.myunitedvoice.org" and clicked on a "News" link on that webpage which brought up another page with a website address of "https://www.myunitedvoice.org/news". The post at the top of the list of items was as follows contained a heading: "MEDIA RELEASE: XXXX FIGHT RAMPS UP AS LION TRIES TO SHUT US DOWN" and a statement that the post had been made by Gary Bullock on 11 June 2018 at 3.24 pm.[35] Underneath the line indicating that Mr Bullock posted the item appears the text in A.5(b) of the interim bargaining order that United Voice was required to post, as edited by Mr Ong. Mr Ray then clicked on "Read more" in the post which brought up another page with a URL of "https://www.myunitedvoice.org/interim orders." On that page was the text in A.5(b) of the interim bargaining order (as edited by Mr Ong) with the words "interim bargaining order" containing a hyperlink to the text of the interim bargaining order. Underneath the text appeared a media release entitled "XXXX WORKERS RAMP UP FIGHT TO HIT LION WHERE IT HURTS". The media release contains a number of statements attributed to Mr Davie including that:

"The fight to secure jobs for XXXX workers and the long term viability of the Milton brewery will step up from next week with multiple rallies being planned in numerous locations across Brisbane.

The move comes in the face of Lion's concerted efforts through the Fair Work Commission to stop workers from speaking out and rallying at the brewery.

United Voice Coordinator Damien Davie said the workers would not be discouraged by the interim order issued by Fair Work on Friday and that it would only make them more determined..."[36]

[52] Mr Ray again accessed the webpage "www.myunitedvoice.org" on 26 June 2018 and took a number of screen shots of its content. On this occasion when Mr Ray clicked on the "News" link there was a post with the heading "FAIR WORK COMMISSION INTERIM BARGAINING ORDER" with the introductory text from A.5b of the interim bargaining order (as edited by Mr Ong) appearing twice and on the second occasion, containing a hyperlink to the interim bargaining order. The "Read more" button brought up the same media release entitled "XXXX WORKERS RAMP UP FIGHT TO HIT LION WHERE IT HURTS." Mr Ray observed that the time and the date under the post continued to indicate that it was made by Mr Bullock on 11 June 2018 at 3.34 pm.[37]

[53] Mr Ray also made a number of observations about various websites operated by United Voice. In particular he noted that on the webpage "http://www.myunitedvoice.org" there is a tab at the top labelled "BRANCHES". According to Mr Ray's evidence, when the cursor is hovered over the link, a drop down list of branches appears. When a viewer clicks on Queensland he or she is redirected to "https://www.myunitedvoice.org." Links for other branches of the Union have different URLs. Mr Ray also noted that the second line of links on the website of the Queensland Branch of United Voice remain static and wherever a reader navigates to on the website, clicking on the "QUEENSLAND BRANCH" link takes the reader back to "https://www.myunitedvoice.org". Mr Ray also appended to his statement a post found on the "About" link in United Voice's Face Book page which contains contact details including a reference to "https://www.myunitedvoice.org" which appears under the Union's telephone number.

[54] Further, Mr Ray gave evidence about submissions made by United Voice in response to the application by CPPL under s. 229 of the Act for a bargaining order. Mr Ray said that CPPL's application included a draft order requiring posts to be made on "the homepage of the internet site of its Queensland Branch (https://www.myunitedvoice.org)" had been provided to United Voice on 1 May 2018. Mr Ray tendered the response of United Voice to the application for bargaining orders and the draft order, in which United Voice did not take issue with the URL set out in the draft order proposed by CPPL and did not indicate that the URL was not the Union's home page.[38] Mr Ray also tendered an extract of the transcript of the proceedings before Commissioner Hunt on 8 June 2018 where the terms of the interim bargaining order were discussed. According to Mr Ray, Mr Greg Davey and Mr Simon Ong were present at that hearing. The transcript indicates that Mr Reed, Counsel for United Voice in that matter, sought and was granted an adjournment to seek instructions about the draft order which had earlier been proposed by CPPL and which Commissioner Hunt had determined to issue. No concern was raised by Mr Reed, Counsel for United Voice following the adjournment and the following statements were made:

"MR REED: Commissioner, my instructions are that United Voice doesn't anticipate any logistical difficulties with meeting the proposed timeframes in respect of those particular actions if the Commission was minded to make an order of that type. ...

If anything did arise, we'd obviously inform the Commission and see how it could be dealt with. But my present instructions are that we don't anticipate difficulty."[39]

[55] Ms Wicks referred to a series of correspondence sent by CPPL through its lawyers to the lawyers for United Voice, which was appended to the application by United Voice to vary the interim bargaining order. The correspondence was mainly authored by Mr Tiley of Hall Payne Lawyers on behalf of United Voice and Mr Doyle of Herbert Smith Freehills on behalf of CPPL. By letter dated 18 June 2018 directed to Mr Tiley, Mr Doyle pointed out inter alia that United Voice had not posted a copy of the interim bargaining order or the required text set out in that order on its homepage at https:www.myunitedvoice.org and that rather, it appeared that a modified version of the message was posted under the News section of the internet site. The letter went on to point out that any contravention of the interim bargaining order, minor, unintended or otherwise, means that any future industrial action would not be protected. The letter sought Mr Tiley's views on the matter and requested that in the interim notice of industrial action for 19 June be withdrawn.[40] The response from Mr Tiley also sent on 18 June 2018 was that he was instructed to respond that United Voice had complied with paragraph A.5(b) of the interim bargaining order by making the necessary publication at "https://www.myunitedvoice.org/news" and that: "Your contention about what constitutes the "homepage" is a matter about which reasonable minds may differ. Further debate on the topic would be a distraction".[41]

[56] In a response dated 19 June 2014, Herbert Smith Freehills for CPPL asserted that the URL on which the post was made was not the homepage of United Voice and that the post was "buried" within the site so that it would not be apparent to any person visiting the Union's internet page. The letter goes on to raise other issues with the form and content of the message posted on Facebook and the addition of introductory text resulting in the reader having to click "see more" to read the requisite message and order. Further the letter asserts that United Voice has given more prominence to its media release than it has given to the order and the required message, indicating that the contravention is more than a mere slip. The letter invites a response and indicates that if further industrial action is notified CPPL will lodge an action in either the Federal Court or the Commission to obtain a declaration or orders stopping further industrial action by United Voice and its members for the remainder of the bargaining process. The letter puts United Voice on notice that as part of any such application CPPL expects that United Voice will put on evidence to demonstrate compliance with other parts of the order.

[57] United Voice through Hall Payne Lawyers responded to the letter on 19 June 2018 advising that it would not be in a position to provide a substantive response until 20 June and would not notify further industrial action until such response had been provided. On 20 June 2018 United Voice through Hall Payne Lawyers provided a detailed response essentially in the same terms as the Union has asserted in support of its application to vary the interim bargaining order in the present proceedings, stating that if there was a contravention of the interim bargaining order it was a mere slip. The letter concluded by stating that bearing the concerns of CPPL in mind an application to vary the interim bargaining order could be made and seeking the consent of CPPL to such a variation.[42]

[58] By letter dated 22 June 2018 Herbert Smith Freehills for CPPL responded in detail. The letter included a proposal that the parties agree to refrain from further industrial action and media campaigns for a period to enable productive negotiations to occur and a proposed agreement to be put to a vote, thereby avoiding the need for a variation application or other applications seeking to restrain United Voice from organising industrial action. The letter further states that if the vote for such proposed agreement was not successful, United Voice could make its application to vary the interim bargaining order, and that while CPPL would oppose that application it would not do so on the ground of further delay caused by the course of action it proposed. The letter goes on to advance a case in essentially the same terms as the case conducted by CPPL in the present proceedings. The non-compliance with the interim bargaining order asserted by CPPL in the letter of 22 June 2018 is limited to the URL on which the message and order was posted; the Facebook posting and the amendment to the introductory text set out in the interim bargaining order by the deletion of the words "no longer authorises" and their replacement with the words "does not authorise" in relation to the obstruction of access or egress to the Brewery.[43] The correspondence does not refer to any alleged breach of the SMS text message requirement.

[59] On 22 June 2018 United Voice filed its first application to vary the interim bargaining order. That application was listed by Commissioner Hunt (on 26 June 2018) for hearing on 29 June 2018. In support of the first variation application, United Voice filed a statement of Ms Woolmer[44] which referred to a number of documents which were not attached. By correspondence dated 25 June 2018, Mr Doyle of Herbert Smith Freehills on behalf of CPPL wrote to Mr Tiley of Hall Payne Lawyers for United Voice, making a request for the production of documents referred to in Ms Woolmer's statement in the first variation application. The requested documents included the Microsoft Word document drafted by Ms Woolmer setting out steps she took to comply with the interim bargaining order; copies of correspondence in which Ms Woolmer circulated that document to individuals responsible for carriage of the case and affirmative responses from those individuals.[45] On 27 June 2018, Mr Tiley on behalf of United Voice corresponded with Mr Webb in the following terms:

"We refer to your correspondence dated 22 June 2018.

We are instructed that our client has reconsidered your correspondence and is now willing to suspend contentious litigation and industrial action to enable constructive negotiations to occur as suggested by your client. As a result, our client's application under s. 603 does not need to be heard and determined in the short term. We are therefore instructed to discontinue it...

Our client reserves the right to make a fresh application under s. 603 at a later time..."[46]

[60] On the same date, United Voice discontinued the first variation application and the hearing listed for 29 June 2018 was vacated. On 27 June 2018 CPPL through Herbert Smith Freehills wrote to Hall Payne Lawyers for United Voice requesting that the Union give an undertaking that it would not organise, notify of, or encourage its members to engage in industrial action in relation to the Brewery until such time as an application by United Voice under s. 603 of the Act (if any) to retrospectively vary the interim bargaining order was determined by the Commission.[47] On 29 June 2018 Mr Tiley of Hall Payne Lawyers for United Voice responded advising that the Union: "was not minded to give the requested undertaking".[48]

[61] CPPL submits that the application by United Voice to vary the interim bargaining order is devoid of substantive merit and in some respects lacks utility. CPPL also submits that the application seeks relief under s. 603 of the Act which goes far beyond the proper, balanced exercise of the discretion and is an application to relieve United Voice of at worst, its deliberate decisions and at best significant failings either by way of carelessness or negligence.

[62] CPPL also submits that the application lacks utility because it assumes that at the times specified - 19 June and 29 June 2018 - United Voice had complied with the interim bargaining order and that a retrospective variation would remove the contravention. In relation to the SMS, CPPL submits that neither the SMS text message sent on 11 June 2018 or the message sent on 29 June 2018 comply with the SMS text message requirement in paragraph A.4(b) of the interim bargaining order. That paragraph of the interim bargaining order required that a message be sent in substantially the terms set out in the order. CPPL contends that if the first message sent on 11 June 2018 did not comply then it could not be said that the second message complied either. Secondly, it assumes that the other publication requirements which were changed by Mr Ong equal a message substantially in the terms set out in the interim bargaining order.

[63] It is accepted by CPPL that the terms of the interim bargaining order did not require the message in the order to be set out verbatim. However, CPPL submits that it is at least debatable that the changed wording was not in substantially the terms set out in the order. A finding by the Commission that the changed wording was in substantially those terms would require an assumption about how important that particular wording was to the member of the Commission who made the order.

[64] According to CPPL, the evidence given by Ms Wicks and Mr Ray establishes that United Voice made exhaustive submissions to Commissioner Hunt in relation to the form of the orders proposed by CPPL in the s. 229 proceedings, which included an order requiring a message to be posted at the same locations including the United Voice homepage. The Union raised no issue at that time with respect to identifying the home page or the character limitation with SMS messages and informed the Commission that there were no logistical difficulties complying with these requirements.

[65] In response to a proposition from the Commission that there would be no prejudice to CPPL if the variation was granted other than it would be exposed to protected industrial action, Mr Follett on behalf of CPPL contended that for the Commission to start from the direction of granting the application in the absence of prejudice to CPPL would place the onus on the Company to justify why the discretion should not be exercised and constitute an improper exercise of the discretion. It was also submitted that such an approach would give United Voice a "free pass" for failing to play by the rules.

[66] CPPL submitted that the starting point should be that the discretion in s. 603 of the Act is exercised rarely and in exceptional cases. Even if the Esso principles are applied, the discretion should only be exercised in cases where there is a purely accidental omission or technical failure to comply with an order in circumstances where everything possible for compliance had been done. It was also submitted that even if United Voice established careless disregard, there was no reason why the variation should be granted simply because the Company could not show prejudice or give a good reason why the discretion should not be exercised.

[67] Further, CPPL contended that there was no evidence before the Commission from operatives or decision makers to explain why United Voice did what it did in relation to steps to comply with the interim bargaining order. The evidence of Ms Woolmer was limited to what she believed rather than an explanation for the various actions taken or not taken. As a result of the actions taken by employees and officers of United Voice, the message in three of the four forms of communication ordered by the Commission was practically invisible to persons receiving it and those persons had to take another step by clicking on a link with no direction or pointer indicating that this should be done. The various forms of communication had also been filled with text about the industrial campaign being conducted by United Voice rather than the terms required by the interim bargaining order. This was not consistent with the requirement that the material in the order be posted prominently. The distinction between a home page and a landing page was entirely disingenuous and if there was doubt about any of the requirements of the interim bargaining order or difficulty complying with them, the Union could have referred the matter to the Commission.

[68] CPPL also pointed to a lack of evidence about the traffic on the web page on which the message was posted. Further there was a failure on the part of United Voice to take legal advice which was of itself careless disregard. It was asserted that the differences in the first and second witness statements made by Ms Woolmer, and in particular the assertion by Ms Woolmer in the first statement that the SMS requirements in the interim bargaining order had been complied with, was demonstrably untrue and that the Commission should conclude that there had been a deliberate attempt to hide the non-compliance. The non-compliance with respect to the SMS message may have gone unnoticed if CPPL's lawyers had not sought the documents referred to by Ms Woolmer. There had been no reference to the non-compliance with the SMS text message requirement until the 6 July 2018 statement made by Ms Woolmer. It was also asserted that the real reason for United Voice withdrawing the first application to vary the interim bargaining order was not to enable negotiations to continue, but rather, because the SMS message was also non-compliant with the interim bargaining order. Further it was submitted that the Union could have complied with the SMS text message requirement of the interim bargaining order by sending four consecutive text messages which would have been able to be understood by recipients.

[69] Reference was also made to the various media releases issued by United Voice with respect to the order which were said to indicate a lack of support for the Commission and the interim bargaining order. The submission by United Voice in relation to the consequences of breaching the interim bargaining order was said by CPPL to be a distraction because the real issue was that parliament has decided that there are common requirements for protected industrial action and that if a party does not play by the rules it cannot take such action. In relation to prejudice to employees, it was submitted that this would only be so to the extent that employees have appointed United Voice as their bargaining representative and that individual employees representing themselves in bargaining would be able to continue to take protected industrial action if the variation was not granted.

1. THE INDUSTRIAL ACTION ORDER APPLICATION

[70] Section 418 of the Act provides that:

"418 FWC must order that industrial action by employees or employers stop etc.

(1) If it appears to the FWC that industrial action by one or more employees or employers that is not, or would not be, protected industrial action:

the FWC must make an order that the industrial action stop, not occur or not be organised (as the case may be) for a period (the stop period) specified in the order.

(i) a person who is affected (whether directly or indirectly), or who is likely to be affected (whether directly or indirectly), by the industrial action;

(ii) an organisation of which a person referred to in subparagraph (i) is a member.

(3) In making the order, the FWC does not have to specify the particular industrial action.

(4) If the FWC is required to make an order under subsection (1) in relation to industrial action and a protected action ballot authorised the industrial action:

(a) some or all of which has not been taken before the beginning of the stop period specified in the order; or

(b) which has not ended before the beginning of that stop period; or

the FWC may state in the order whether or not the industrial action may be engaged in after the end of that stop period without another protected action ballot."

[71] CPPL's written submissions in relation to the industrial action order application were filed with that application, prior to United Voice making its s. 603 application. In relation to the industrial action order application under s. 418 of the Act, CPPL submitted that United Voice is a bargaining representative in relation to a proposed agreement to cover and apply to employees of CPPL. The interim bargaining order relates to the proposed agreement and/or to a matter that arose during bargaining for the proposed agreement and United Voice has contravened the interim bargaining order. As a consequence, s. 413(5)(a) of the Act is engaged. The further consequence is that further industrial action organised by United Voice and engaged in (or to be engaged in) by any employee, does not meet the common requirement in s. 413(5) and hence is not protected industrial action "that meets the common requirements set out in Subdivision B" within the meaning of s. 409(c) of the Act. It cannot be "employee claim action" and hence, cannot be protected industrial action (s. 408(a)).

[72] CPPL also submitted that the industrial action notified on 5 July 2018 to be taken on 11 July 2018 had not been withdrawn and that evidence establishes that historically, when United Voice organises industrial action its members take that action. On this basis it was submitted that industrial action is impending, probable and is being organised. That industrial action is not protected industrial action.

[73] The industrial action order application states that between March 2018 and 6 July 2018 United Voice has notified CPPL of industrial action pursuant to s. 414 of the Act, on 11 occasions although on one occasion (13 June 2018) the notification was withdrawn. It is also the case that the most recent notification of industrial action on 5 July 2018 was provided to CPPL after its lawyers had pointed out that United Voice had breached the interim bargaining order.

[74] As previously noted, an interim industrial action order was issued by the Commission on 9 July 2018 as required by s. 420(2) of the Act. The current status is that the interim order remains in effect pending determination of the s. 603 application to vary the interim bargaining order. In accordance with the interim bargaining order the industrial action notified for 11 July 2018 did not take place.

1. CONSIDERATION

[75] I turn first to consider whether the s. 603 application should be granted. In Grabovsky it was noted that the apparent scope of a discretion may be limited by other sections of the Act. In that case, the applicant was attempting to re-litigate the original case and to vary or revoke an appeal decision by a Full Bench. It was held that acceding to the applications would undermine the statutory appeal process.

[76] Esso establishes that in a case involving a breach of an order of the Commission so that s. 413(5) of the Act is engaged, it may be appropriate to exercise the discretion to vary the interim bargaining order if a satisfactory excuse or good reason for non-compliance with the relevant order is established or the non-compliance is because of oversight or inadvertence. Esso does not establish that a variation must be granted in such circumstances. The cases dealing with the discretion in s. 603 of the Act establish that all relevant circumstances should be considered before a decision to vary an order is made so that a breach is cured or becomes of no effect. Other relevant circumstances may include matters such as the effect of a variation on the rights of other parties and whether the exercise of the discretion to vary an order so that non-compliance is cured would undermine other provisions of the Act.

[77] The provisions of the Act in relation to protected industrial action are part of a statutory scheme that prescribes the rules of engagement in relation to bargaining. Those provisions include s. 413(5). In Esso the majority of the High Court said in relation to s. 413(5) that the Fair Work Act 2009 is predicated on participants abiding by the rules. The majority also referred to the right to take industrial action being conditioned upon the absence of past contraventions and said that s. 413(5) denies the immunity of protected industrial action to persons who have not previously complied with a pertinent order or orders "and who had thereby demonstrated that they were not prepared, or prepared to take sufficient care, to play by the rules.[49]

[78] I accept that Esso does not establish the only grounds upon which s. 603 of the Act can be used to vary orders of the Commission in cases where non-compliance with such orders engages s. 413(5). However, the examples of appropriate cases for the exercise of the discretion in s. 603 of the Act given by the majority of the High Court in Esso are guidelines which should be followed. The majority in Esso contrasted cases involving oversight or inadvertence or failure to comply where there is a good reason, with cases involving contumaciousness or unacceptably careless disregard. The majority observed that in the latter cases it would probably not be appropriate to exercise discretion to vary an order. Cases where it was thought that to alter an order retrospectively would unfairly interfere with the rights of a party were also indicated as being inappropriate cases for the exercise of the discretion in s. 603 of the Act.

[79] Applying the guidelines established in Esso to the present case, I do not accept that the non-compliance with the interim bargaining order by United Voice involves oversight or inadvertence. I am of the view that the non-compliance by United Voice with the interim bargaining order was at best unacceptably careless disregard and at worst bordered on contumaciousness or wilful and deliberate non-compliance. I have reached this conclusion on the basis of the following matters.

[80] The terms of the interim bargaining order were clear. Paragraph A.5(b) of the interim bargaining order required United Voice to "prominently" post a message substantially in the terms set out in that paragraph and a copy of the interim bargaining order, on the home page of its internet site "https://myunitedvoice.org." That URL or website address is one where a reader can navigate to directly without clicking on any other link. It is implicit that this term of the interim bargaining order required that the post be made in such a way that a reader did not have to navigate from the specified website address to another part of the website. It is clear that the interim bargaining order at paragraph A.5(a) required a copy of the message and the order to be posted and did not provide for this to be done by way of a link. Even if a link was a method of compliance in relation to the posting of the order, the manner in which United Voice posted the required material was not consistent with the requirement for it to be posted prominently.

[81] I do not accept that a reasonable excuse or explanation for the failure to comply with the posting requirements of the interim bargaining order was provided by United Voice. The Union had an opportunity to review a draft of the order proposed by CPPL in the s. 229 application which formed the basis for the wording of the interim bargaining order. The draft of the interim bargaining order provided by CPPL to the Commission in that matter specified the website address at which CPPL sought that material in compliance with the order be posted at "https://myunitedvoice.org." In its detailed submissions in relation to the draft order United Voice took no issue with the specified URL and raised no concern about its ability to access that website address. Following the hearing into the application for the interim bargaining order and prior to it being issued, United Voice was provided with an adjournment and after the adjournment did not take any issue with the mechanics of the order and the website address at which it was to be posted. The order was issued and included this specific requirement.

[82] Ms Woolmer's evidence about the reasons for not posting the required content from the interim bargaining order on the website address specified in that order was not convincing. Ms Woolmer was provided with the interim bargaining order at 12.30 pm on Friday 8 June 2018, the day the interim bargaining order was made. United Voice had until 4.00 pm on Monday 11 June 2018 to comply with the order. When asked whose decision it was to post the message on the news site instead of the site specified in the order, Ms Woolmer said it was her "proposal". Ms Woolmer's evidence about the reasons for this proposal was at best disingenuous. Firstly Ms Woolmer said that the news page is the main page of the website. Clearly that statement is not correct and the news page can be found by clicking on a tab on the website address "https://www.myunitedvoice.org." This evidence is also inconsistent with the fact that the website address set out for United Voice on its Facebook page along with a contact telephone number, is "myunitedvoice.org."

[83] Ms Woolmer also said that United Voice does not have a homepage "as such" and maintained that the website address specified in the interim bargaining order is a "landing page" and not a homepage. Whether the page specified in the interim bargaining order is a home page or a landing page, it is a page where content that is posted is visible without the need to click on another link. Ms Woolmer's view about what constitutes a home page is irrelevant. The interim bargaining order stipulated the website address on which the post was required to be made. Effectively Ms Woolmer decided to second guess the Commissioner who made the interim bargaining order and post it on another page. This conduct displayed unacceptably careless disregard for the interim bargaining order and the need for compliance with its terms.

[84] Ms Woolmer's evidence that the news webpage is the most widely viewed page on the site was also not convincing. I do not accept that this consideration played any part in Ms Woolmer's decision about where to post the message. No data was provided to support the assertion about how widely viewed the news page is. It is also the case that the effect of the message being posted on the news webpage meant that a reader needed to click on an additional button with the word "News" on it to read the message and view the interim bargaining order. As a result, the post was not prominent but rather was behind a button that required a reader to be looking for news before the post would be read. I do not accept that Ms Woolmer could reasonably have believed that posting the message on the news page of the website complied with the interim bargaining order and I do not accept her evidence in this regard.

[85] I also found Ms Woolmer's evidence about the difficulty in accessing the URL specified in the interim bargaining order to be unconvincing. On 18 June 2018 when Ms Woolmer decided to make an attempt to post the message and the order on the URL specified in the order and directed her staff accordingly, it took 1.5 hours to undertake this task. There is no reason why Ms Woolmer could not have spent 1.5 hours on 11 June 2018 complying with the interim bargaining order. I further note that Ms Woolmer decided to place a headline above the message specified in the interim bargaining order and to include a media release underneath the text of the message and maintained that this was done to provide context for the message in the interim bargaining order. In my view the additional text took focus away from the message specified in the interim order. While I would not go so far as to say the additional text undermined the message in the interim bargaining order, I do not doubt that it intended to convey that CPPL was using the Commission in a way that was not appropriate and that despite the order the campaign would be escalated.

[86] While I accept the right of United Voice to continue its enterprise bargaining campaign notwithstanding that an interim bargaining order has been issued by the Commission, it was not appropriate for United Voice to surround the message required to be conveyed by the interim bargaining order with text that was inconsistent with the message and the stipulation that the order be posted prominently. In summary, United Voice posted the message and the interim bargaining order at a location on its website that was contrary to the one specified in the order and which required a reader to click on a button to read the message. This was in breach of the interim bargaining order. United Voice compounded the breach by inserting a heading above the required text of the message and a media release below it so that the reader had to click on a further link to "read more" which brought up yet another link to the text of the interim bargaining order. The additional text also casts doubt on concerns on the part of United Voice about character limits or the length of the order causing it to not be fully visible.

[87] Even if I am wrong in these conclusions and Ms Woolmer was merely careless, I also note that this was not a case of Ms Woolmer going on a frolic of her own. Ms Woolmer set out her proposal to make the required post on a different website address to that specified in the interim bargaining order, in a Microsoft Word document that she sent to Mr Davie at 8.59 am on 11 June 2018. That document also set out the steps that Ms Woolmer proposed to take to comply with the interim bargaining order and sought approval of those steps. In addition to the text that was to be posted on a website, Ms Woolmer set out in the additional content that she proposed to post with the message.

[88] The website address set out in Ms Woolmer's document was not the same as the website address specified in the interim bargaining order. Mr Davie forwarded the document prepared by Ms Woolmer to Mr Ong who amended the text of the message set out in the interim bargaining order. Mr Davie and Mr Ong both viewed the document setting out the steps that Ms Woolmer proposed to take with respect to posting the message including the website on which the message would be posted. Neither took any step to instruct Ms Woolmer to comply with the order by posting the material on the specified website address. Mr Ong made tracked changes to the text of the message set out in the document but failed to make any other changes to what was proposed including the obviously non-compliant SMS text message set out in the Microsoft word document prepared by Ms Woolmer.

[89] If Mr Ong's changes to the text of the message was the only non-compliance with the interim bargaining order and it had been posted in the manner required and without the extraneous content, I may have accepted that the message posted was substantially in the terms set out in the order and that United Voice had complied. However, this was not what occurred. There is no evidence that Mr Davie or Mr Ong raised any issue with the fact that the website on which Ms Woolmer proposed to make the post was not the website specified in the interim bargaining order or questioned the wisdom of posting additional content with the message. Ms Woolmer stated that if she had been instructed by Mr Ong or Mr Davie to post the message on another site she would have done so. It is probable that Ms Woolmer would also have adopted any changes to the text of what she proposed to send that were conveyed to her by Mr Davies or Mr Ong.

[90] In my view it is improbable that Mr Ong or Mr Davie did not notice that the message was to be posted at a website address other than the one specified in the interim bargaining order. Even if I am wrong in my view, in all of the circumstances the conduct of Ms Woolmer, Mr Ong and Mr Davie goes beyond mere oversight and demonstrates unacceptably careless disregard for compliance with orders of the Commission as set out in paragraph A.5(b) of the interim bargaining order. I also note the absence of any evidence from Mr Ong and Mr Davie.

[91] If there was a genuine issue with respect to the ability of United Voice to comply with the interim bargaining order because of uncertainty about the terms of the order, the status of the website or access to the website, such an issue could and should have been promptly raised with the Member of the Commission who issued the order. In all probability any such issue could have been dealt with before 4.00 pm on 11 June 2018 or shortly thereafter.

[92] The assertion in both of the variation applications filed by United Voice that the interim bargaining order did not provide any further detail about how paragraph A.5(b) of the interim bargaining order was to be complied with is clutching at straws. I can only wonder at how the posting requirement in the interim bargaining order could have been made clearer. It required a message and a copy of the order to be posted on a specified website address. If United Voice genuinely required more detail about how to accomplish this task, a query could and should have been made to the Member of the Commission who issued the order. The appropriateness of such a step was explicitly acknowledged by Counsel for United Voice at the hearing on 8 June 2018 before the interim bargaining order was issued.

[93] The non-compliance with the interim bargaining order did not stop with the posting at a website address that was different to the one specified in the interim bargaining order. United Voice also failed to comply with the requirements in paragraph A.4(b) of the interim bargaining order which dealt with requirements to send an SMS text message to members for whom United Voice had a contact telephone number, in substantially the terms set out in the order. The Microsoft Word document drafted by Ms Woolmer and sent to Mr Davie for approval, and forwarded by Mr Davie to Mr Ong, contained a proposed text message which bore no resemblance to the message required by interim order. The Microsoft Word document does not contain any information about the logistical difficulties which Ms Woolmer claimed prevented her from sending an SMS message in the required terms. There is no evidence that Mr Davies or Mr Ong raised any concern about the obvious lack of compliance with the terms of the interim order as set out in paragraph A.4(b).

[94] I do not accept Ms Woolmer's explanation about the failure to comply with the interim bargaining order in relation to the wording of the text message. That four consecutive SMS messages would have been required to send the full text of the message to Union members via that medium is not to the point. There is no logistical reason why four consecutive text messages could not have been sent. If United Voice had a genuine concern about the character limit on text messages causing the Union to be unable to comply with the terms of the interim bargaining order then an urgent application could and should have been made to the Commission to vary the order in this respect. Instead, Ms Woolmer, with the approval of Mr Davie and Mr Ong, took it upon herself to compose an alternative message to be sent to members of the Union in purported compliance with the interim bargaining order.

[95] Not only did the first text message composed by Ms Woolmer bear no resemblance to the message required to be sent and set out in the interim bargaining order, it was in effect a gratuitous comment about the fact that the order had been made. Ms Woolmer's evidence that she needed the benefit of hindsight and the matter being raised by CPPL to understand that the text message she composed did not comply with the interim bargaining order, is nonsensical. It is patently obvious that the SMS message is not compliant. At the point that SMS message was approved for sending to members of United Voice, employees and officers of the Union responsible for complying with the interim bargaining order went beyond unacceptably careless disregard and at least reached the line between that state and the state of wilful and deliberate non-compliance.

[96] There are additional considerations which indicate that the conduct of officers of United Voice reached the line between unacceptably careless disregard for the interim bargaining order and wilful and deliberate non-compliance with that order. United Voice was put on notice on 18 June 2018 by letter from Herbert Smith Freehills for CPPL asserting that United Voice had not complied with the terms of the interim bargaining order in relation to posting a message on the specified website address as required in paragraph A.5(b) of order. Hall Payne Lawyers for United Voice responded to that letter also on 18 June 2018 denying a breach and stating that the contention about what constitutes a homepage "is a matter about which reasonable minds might differ." That response misses the point. The website address at which the message was required to be posted was at all times specified in the interim bargaining order and regardless of whether it was considered by United Voice to be a homepage or not, reasonable minds could not have differed about the requirement to prominently post the message specified in the interim bargaining order and a copy of the order at the website address "https://myunitedvoice.org."

[97] On 18 June 2018 when CPPL's lawyers first raised the assertion of non-compliance, United Voice should have immediately given full and detailed consideration to whether it had complied with all of the terms of the interim bargaining order and taken swift action to rectify all and any non-compliance. Even a cursory examination at that stage by United Voice or its lawyers of the steps taken in purported compliance with the terms of the interim order in relation to the SMS message, would have indicated that United Voice had breached the order. Instead, through its lawyers, United Voice engaged in correspondence with lawyers for CPPL on 19 and 20 June 2018 arguing the point about the website page (which in my view had no real merit) and taking no steps to rectify its breach of the interim bargaining order in relation to the SMS message. In correspondence on 20 June 2018 it was asserted that any non-compliance with the interim bargaining order - which was not conceded - had been rectified on 18 June 2018 when United Voice "final (sic) secured access to the landing page."[50]

[98] It is improbable that CPPL and its lawyers had information about non-compliance with the terms of the interim bargaining order in relation to the SMS text message requirement before 6 July 2018 when United Voice made the second variation application or earlier in the following week when the Union provided the documents referred to in Ms Woolmer's statement in relation to the second application. The first s. 603 application filed on 22 June 2018 sought only to vary the time for compliance with paragraph A.5(b) of the interim bargaining order and made no reference to paragraph A.4(b) or the non-compliance with the SMS requirements.

[99] It would be surprising if full consideration of all potential non-compliance with the interim bargaining order was not undertaken by United Voice or the Union's lawyers before the first s. 603 application was filed on 22 June 2018. It appears to be more than coincidental that United Voice discontinued the first s. 603 application on 27 June 2018, two days after receiving correspondence from CPPL's lawyers dated 25 June 2018, requesting production of documents referred to in Ms Woolmer's first statement filed with that application. The documents requested by CPPL on 25 June 2017 were not provided before the first s. 603 application was withdrawn and the provision of those documents was not pressed until the second s. 603 application was filed. The documents referred to in Ms Woolmer's statement in the first s. 603 application are the same documents as referred to in Ms Woolmer's statement in the present application. As previously observed, even a cursory examination of those documents would have indicated non-compliance with the terms of paragraph A.4(b) of the interim bargaining order in respect of the SMS message.

[100] If a full examination of its compliance with the interim bargaining order was not undertaken by United Voice before the first variation application was filed, or when the documents referred to in Ms Woolmer's statement were requested by CPPL, then the failure to examine the documents at those times was unreasonable and constitutes unacceptably careless disregard for the obligations of United Voice to comply with the terms of the interim bargaining order. If an examination of the documents was undertaken in the two day period between receipt of the letter requesting the documents and the discontinuance of the first s. 603 application then unacceptably careless disregard takes on a complexion of deliberate concealment of the breach of the interim bargaining order.

[101] If United Voice was aware at or around 25 June 2018 that it had failed to comply with the interim bargaining order in respect of both the posting and the SMS text message requirements, then the appropriate course of action would have been to seek to amend the first s. 603 application to also include an extension to the time for compliance with paragraph A.4(b) of the interim bargaining order with respect to the SMS text message requirement. Instead of taking this step, United Voice withdrew the first s. 603 application on 27 June 2017.

[102] At that point, United Voice must have been aware of its non-compliance. I draw this conclusion based on Ms Woolmer's evidence that she was advised by Mr Spreckley, Industrial Coordinator with United Voice, that there was a concern that the SMS message did not include the text specified in the order and steps were taken to send a further SMS message on 29 June 2018. Rather than merely being concerned, Mr Spreckley should have been alarmed. The second SMS text message sent to members of 29 June 2018 also did not include the text set out in paragraph A.4(b) of the interim bargaining order. Again, United Voice took no step to raise with the Member of the Commission who had issued the order, any concern about its ability to comply with the order because of character length limitations in SMS messages or to make a fresh s. 603 application or to amend its first s. 603 application. It should have been apparent to United Voice and its lawyers by 27 June 2018 that neither of the text messages complied with the terms of the interim bargaining order.

[103] Meanwhile, on 27 June 2018, after the first s. 603 application was discontinued, CPPL wrote to United Voice through its lawyers seeking an undertaking that the Union would not notify or engage in industrial action until a fresh application under s. 603 (if any) had been determined by the Commission. This correspondence indicated that CPPL maintained the position that United Voice had breached the interim bargaining order. As previously noted, at this point, United Voice must have known that this assertion was correct at least in respect of the SMS message requirements in paragraph A.4(b) of the order.

[104] As previously noted, it is improbable that CPPL knew about the SMS text message breach at this point but CPPL was maintaining its previous position in relation to the breach of the posting requirement in paragraph A.5(b) of the interim bargaining order. I have no doubt that had CPPL known of the breach of the SMS text message requirement, its lawyers would have corresponded with lawyers for United Voice about the matter. Further CPPL had previously advised United Voice that if it pursued a fresh s. 603 application then CPPL would pursue its request for production of the documents referred to in Ms Woolmer's statement in the first s. 603 application.

[105] Accordingly by 27 June 2018, United Voice knew that:

• regardless of its argument about the posting requirement in paragraph A.5(b) of the interim bargaining order being complied with it had breached the SMS text message requirement in paragraph A.4(b) of the interim order;

• to extend the time for complying with both of these paragraphs in the interim order an amendment to the first variation application or a fresh variation application under s. 603 of the Act would be required;

• if a fresh application under s. 603 was not made the effect of the decision of the High Court in Esso would render all industrial action from the point of the breach of the interim bargaining order unprotected; and

• if a fresh application was made under s. 603 of the Act, CPPL had put United Voice on notice that it would seek production of documents referred to in Ms Woolmer's statement in relation to the first s. 603 application which would establish the breach of the SMS requirement in paragraph A.4.b.

[106] United Voice should also reasonably have known that CPPL was not aware of the SMS text message breach.

[107] At this point United Voice should have made the second s. 603 application or sought to amend the first one. Instead, on 5 July 2018, United Voice notified CPPL under s. 414 of the Act, that it was organising and that its members would take further industrial action on Wednesday 11 July 2018. I find it difficult to conclude that this was a spur of the moment plan, given that the proposed industrial action coincided with the third State of Origin Rugby League match at Suncorp Stadium, which is in close proximity to CPPL's Milton Brewery, the centre of the present campaign. The second s. 603 application which is the subject of these proceedings was not made until after CPPL filed an application for a s. 418 order in response to the industrial action notified by United Voice for 11 July 2018.

[108] Notwithstanding the valiant attempt by Counsel for United Voice to overcome conduct engaged in by officers and employees of United Voice prior to his involvement in the case, I am unable to accept that this is a case of inadvertent oversight or unintentional non-compliance. It is not a case where genuine inability to comply with the interim bargaining order was followed by prompt action to seek an amendment to those requirements. It is not a case where there was a prompt concession as to non-compliance and a genuine and reasonable endeavour to correct the situation. It was not until Counsel for United Voice appeared at the mention on 6 July 2018 that a concession was made (and in my view correctly) in relation to non-compliance. It is also my view that the sequence of events and the conduct engaged in by officers and employees of United Voice subsequent to the interim bargaining order being issued displays an unacceptably careless disregard for the interim bargaining order which at very least, by the time the s. 603 application subject of the present proceedings had been filed, had reached the point of wilful and deliberate failure to comply with the order.

[109] The bargaining regime under the Act gives significant rights to both parties to take protected industrial action (both employee claim action and employer response action) and to inflict loss and damage on each other with immunity from civil prosecution and from intervention by the Commission to halt such conduct. Those rights are conditioned on the requirement for parties to play by the rules. Orders of the Commission must be complied with if the integrity of regime of protected industrial action is to be maintained. Parliament has enacted a provision in the form of s. 413(5) of the Act which provides for significant consequences for persons who contravene orders of the Commission. Those consequences are common requirements for protected industrial action and they flow regardless of whether a contravention of an order is substantive or inconsequential. While a contravention of an order may be cured by an application under s. 603 of the Act such an outcome should not be available in circumstances where the party seeking the variation has contravened an order as a result of unacceptably careless disregard or wilful and deliberate failure to comply.

[110] To vary an order in such circumstances would remove the consequences of such conduct. It would also undermine the statutory scheme for protected industrial action and the incentive to play by the rules by virtue of s. 413(5). I accept that there is no prejudice to CPPL if the variation sought by United Voice is granted other than prejudice it would otherwise have suffered by virtue of United Voice engaging in and organising protected industrial action. I also accept that United Voice and its members will be significantly and detrimentally impacted if the variation is not granted by virtue of the fact that United Voice will be prevented from organising and engaging in protected industrial action with respect to employees for whom the Union is a bargaining representative. I do not accept that this disadvantage is outweighed by the fact that employees for whom United Voice is currently a bargaining representative can nominate themselves or other employees as bargaining representatives.

[111] However, in all of the circumstances I am not persuaded that this is an appropriate case for the exercise of the discretion to amend the interim bargaining order and I decline to do so. The application for such amendment is dismissed.

[112] In the event that the application for an amendment of the interim bargaining order was refused, CPPL contended that the s. 418 order subject of its application should be made in terms of a draft order filed by CPPL at the hearing on 12 July 2018. I turn now to consider that application.

[113] My provisional view is that there is evidence suggesting that when United Voice notified of protected industrial action on 5 July 2018, the Union knew that it had not complied with the interim bargaining order with the result that such industrial action would not be protected. This evinces an apparent intention to engage in unprotected industrial action. On the other hand, United Voice conceded on 6 July 2018 that it had not complied with the interim bargaining order and did not oppose the making of an interim order under s. 418 that notified industrial action stop, pending the hearing and determination of its s. 603 variation application. This evinces an intention on the part of United Voice not to organise unprotected industrial action.

[114] The s. 603 application for a variation of the interim bargaining order has been refused. It is not in dispute that United Voice has breached that order and that s. 413(5) is thereby engaged so that no industrial action organised by United Voice will be protected. It is possible that as a result United Voice will refrain from organising industrial action and will advise those employees for whom it is a bargaining representative accordingly. United Voice may also choose to consider providing an undertaking to CPPL and to the Commission in relation to its future conduct in light of this decision. In this regard I note CPPL has previously been prepared to accept such an undertaking and may still decide to do so.

[115] CPPL and United Voice also filed further submissions at my request on 16 July 2018 in relation to whether the interim bargaining order could be varied in the event that it was set aside upon release of the decision in the s.229 application. Given the current circumstances it is not necessary to consider this point.

[116] I provide the parties with a further opportunity, in light of my decision to refuse the variation application, to consider these matters or to make any further submissions or provide any further material addressing the matters in s. 418(1) of the Act in relation to whether the Commission should proceed to make the industrial action order sought by CPPL in its application.

[117] Such material should be provided by 4.00 pm on Monday 6 August 2018. If either party seeks to be heard further in relation to whether an order under s. 418 of the Act should issue, that party should indicate this in its written material. The interim industrial action order will remain in effect until that question is determined.

Mr M Follett of Counsel instructed by Ms N Jones of Herbert Smith Freehills for CPPL.

Mr W Friend of Counsel instructed by Mr J Kennedy of Hall Payne Lawyers for United Voice.

[1] [2018] FWC 4069.

[2] Exhibit R8 Witness Statement of Adam Ray.

[3] Exhibit R7 Witness Statement of Michelle Wicks 6 July 2018; Exhibit R9 Supplementary Witness Statement of Michelle Wicks 10 July 2018.

[4] Exhibit A1 - Statement of Neva Jade Woolmer 6 July 2018.

[5] [1986] HCA 17; (1995-1996) 161 CLR 513.

[7] [2015] FWC 5161.

[10] [2014] FWC 198.

[12] (2017) 271 IR 210.

[15] [2000] HCA 47; (2000) 203 CLR 194.

[17] [2018] FWC 4069.

[24] Transcript of proceedings 12 July 2018 PN142-155.

[34] Transcript of proceedings 12 July 2018 PN469 - 471.

[35] Exhibit R8 Statement of Adam Ray Attachment 3.

[40] Annexure UV3 to application for variation of interim bargaining order filed on 6 July 2018.

[44] Exhibit R3 in the present proceedings and shown to Ms Woolmer in cross-examination.

[45] Exhibit R9 Supplementary Statement of Michelle Wicks Annexure MW-5.

[50] Annexure UV6 to s. 603 application.

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