Director-General, Department of Education and Training v New South Wales Teachers Federation

CITATION : Director-General, Department of Education and Training v New South Wales Teachers Federation [2000] NSWIRComm 17 APPLICANT Director-General, Department of Education and Training PARTIES : DEFENDANT New South Wales Teachers Federation

FILE NUMBER: IRC785 of 2000 CORAM: Marks J Practice and Procedure - Application for monetary penalty - Application in the nature of proceedings for civil contempt - Adjournment where underlying dispute order the subject of appeal

Evidence - Criminal standard of proof and criminal procedures applied CATCHWORDS : Dispute orders - statutory requirements, ambiguity, breach

Industrial Relations Act 1996 s137 s138 s139 LEGISLATION CITED : Conciliation and Arbitration Act 1904 s119 Industrial Arbitration Act 1940 s93 Australasian Meat Industry Employees Union & Ors v Mudginberri Station Pty Ltd (1986) 161 CLR 98 Witham v Holloway (1995) 183 CLR 525 Hinch v Attorney-General (Vict) (1987) 164 CLR 15 The King v The Associated Northern Collieries & Ors CASES CITED : (1910) 11 CLR 738 esp 742 et seq Gapes v Commercial Bank of Australia Ltd (1979) 38 FLR 431 Platt v Treweneck (1953) 52 AR 642 Microsoft Corporation v Marks (1996) 139 ALR 99, 121 Australian Consolidated Press Ltd v Morgan (1964 - 1965) 12 CLR 483 Watkins v AJ Wright (Electrical Ltd) [1996] All ER 31 HEARING DATES: 03/01/2000; 03/02/2000; 03/03/2000; 03/06/2000 DATE OF JUDGMENT: 03/13/2000

APPLICANT Mr P Menzies QC and Mr S B Benson of Counsel SOLICITORS Crown Solicitor

LEGAL REPRESENTATIVES: DEFENDANT Mr S Crawshaw SC and Ms P F Lowson of Counsel SOLICITORS McMahon Associates

DIRECTOR GENERAL, DEPARTMENT OF EDUCATION AND TRAINING v NEW SOUTH WALES TEACHERS' FEDERATION Application pursuant to s139 of the Industrial Relations Act 1996

1 These are proceedings brought under s139 of the Industrial Relations Act 1996 ("the Act") whereby the applicant the Director General of the Department of Education and Training seeks the imposition of a monetary penalty against the respondent New South Wales Teachers' Federation arising out of an alleged contravention of dispute orders. 2 The dispute orders on which the proceedings are based were made by Deputy President Sams of the Industrial Relations Commission of New South Wales on 28 February 2000. 3 The dispute orders were issued following the unsuccessful conciliation of a dispute between the parties concerning the administration of the English Language Literary Assessment test ("ELLA") which the applicant sought to have carried out at a large number of schools throughout New South Wales on 29 February 2000 and which the respondent resisted because of the alleged impact that the results of such a test might have on staffing levels at certain schools. 4 The dispute orders were issued under s137 of the Act. 5 For convenience I set out below the provisions of ss137 and 139 of the Act. 137 Kinds of dispute orders (1) The Commission may make the following kinds of dispute orders when dealing with an industrial dispute in arbitration proceedings: (a) The Commission may order a person to cease or refrain from taking industrial action. (b) The Commission may order an employer to reinstate or re-employ any one or more employees who were dismissed in the course of the industrial dispute or whose dismissal resulted in the industrial dispute. (c) The Commission may order an employer not to dismiss employees in the course of the industrial dispute if the employer has threatened to do so. (d) The Commission may order a person to cease a secondary boycott imposed in connection with the industrial dispute. (2) If employees are taking industrial action in connection with the industrial dispute, the Commission may order the employees to cease taking that industrial action before it makes any other kind of dispute order against the employer. (3) A dispute order may not provide for the payment of compensation, lost remuneration or any other amount. Note. See also claim for remedy under Part 6 of Chapter 2 (Unfair dismissals). 139 Contravention of dispute order (1) The Commission, on application, must deal expeditiously with an alleged contravention of a dispute order. The application may be made by the person who applied for the order or any other person who was authorised to apply for the order. (2) Before dealing with an alleged contravention of the order, the Commission is required to summon the person alleged to have contravened the order to show cause why the Commission should not take action for the contravention. (3) The Commission may, after hearing any person who answered the summons to show cause and considering any other relevant matter, do any one or more of the following: (a) dismiss the matter if it finds that the dispute order was not contravened or if it finds that the circumstances were such that the Commission should take no action on the contravention, (b) cancel the approval of an enterprise agreement, (c) suspend or modify for any period all or any of the entitlements under an industrial instrument, (d) cancel the registration of an industrial organisation or take any other action authorised by Division 2 of Part 3 of Chapter 5, (e) impose a penalty on an industrial organisation or an employer as provided by subsection (4), (f) make any other determination that the Commission considers would help in resolving the industrial dispute. (4) The maximum penalty that may be imposed on an industrial organisation or employer is: (a) except as provided by paragraph (b) - a penalty not exceeding in total $10,000 for the first day the contravention occurs and an additional $5,000 for each subsequent day on which the contravention continues, or (b) if a penalty has previously been imposed on the industrial organisation or employer for a contravention of an earlier dispute order - a penalty not exceeding in total $20,000 for the first day the contravention occurs and an additional $10,000 for each subsequent day on which the contravention continues. (5) Any such penalty may be recovered in the same way as a penalty imposed by the Commission for an offence against this Act. Note. The jurisdiction of the Commission under this section is exercisable only by the Commission in Court Session.

6 The dispute orders issued by Deputy President Sams were as follows:

1. That New South Wales Teachers Federation, its officers, employees and members, cease or refrain from imposing a ban, limitation or restriction on work associated with the English Language Literary Assessment on 29 February 2000 at any school of whatever kind conducted by the applicant.
2. The New South Wales Teachers Federation, its officers and employees, take all necessary steps to advise its members of these orders by 6.00pm on Monday 28 February 2000.
3. This order takes effect forthwith and shall remain in force for a period of seven days or until further order of the Commission. It is to be complied with by 6.00pm on 28 February 2000. 7 The application brought by the applicant was originally heard by Justice Schmidt on 29 February 2000. On that occasion it became apparent that there were certain deficiencies in the manner in which the application had been brought and in the forms used to initiate these proceedings. As a result of what transpired during the course of the proceedings on 29 February her Honour made a number of consent orders which allowed the matter to proceed and which had the effect of overcoming the deficiencies and irregularities to which I have referred. 8 When the proceedings resumed before me on 1 March 2000 the applicant relied on a form of application which had been filed on 29 February 2000. That application claimed that the respondent had contravened the dispute orders to which I have referred, sought the imposition of a "fine" and asserted that the respondent took no action to comply with the orders made by Deputy President Sams. Mr Crawshaw SC who appeared together with Ms Lowson for the respondent made a number of preliminary submissions as follows:

1. That the proceedings were criminal in nature and that the criminal standard of proof and the procedures more appropriate to a criminal trial should be applied
2. that proceedings to establish the breach should be heard separately from proceedings concerning the question of penalty
3. that no evidence should be permitted concerning any action or conduct which took place after 6pm on 28 February
4. that there was ambiguity in the manner in which the dispute orders were framed and that they were therefore not enforceable
5. that the dispute orders were futile in that they could not be complied with in the time stipulated and were therefore unenforceable, and
6. that further particulars should be furnished. 9 I upheld the first and second of Mr Crawshaw's submissions, deferred dealing with the third, fourth and fifth submissions, and ordered the applicant to particularise fully the alleged breach and the evidence which the applicant would rely upon. These decisions and orders were made without published reasons. I shall publish reasons dealing with the first submission within this judgment.

THE NATURE OF THE PROCEEDINGS; STANDARD OF PROOF and PROCEDURES 10 Mr Crawshaw submitted that these proceedings were analogous to proceedings for civil contempt, that the requisite standard of proof for proceedings for civil contempt was the criminal standard and thus the criminal standard should be adopted for the purpose of these proceedings. 11 It is first necessary that I deal with the statutory context in which dispute orders are made and proceedings may be brought for contravention. 12 Sections 137 and 139 of the Act are contained within PtII of ch3 which is entitled "Industrial Disputes". PtI is entitled "Conciliation and Arbitration of Industrial Disputes" and established a regime which had long been in operation in New South Wales through successive statutory regulation. This regime entails the notification to the Industrial Relations Commission of an industrial dispute, which expression is widely defined. The Commission is given powers to convene a compulsory conference for the purpose of dealing with industrial disputes and by s133 the Commission is required to first attempt to resolve an industrial dispute by conciliation. By s134 the Commission when attempting conciliation is enjoined "to do everything that seems to be proper to assist the parties to agree on terms for the resolution of the dispute." Subs(2) of s134 allows the Commission to make a recommendation or give a direction to the parties to the industrial dispute during conciliation proceedings. Failure to comply with any recommendation or direction so made is not to be the subject of any penalty but "may be taken into account by the Commission in exercising its functions under this Act." Subs(4) of s134 requires the Commission to consider whether the parties have bargained in good faith. Arbitration is only to be undertaken if the dispute is not resolved by conciliation. 13 By s136 the Commission in arbitration proceedings is empowered to do a number of things including making a recommendation or giving a direction, making or varying an award and making a dispute order. 14 The kinds of dispute orders which may be made are those set out in s137. There are detailed provisions concerning the making of dispute orders which are set out in s138 which is in the following terms:

138 Making of dispute orders (1) A dispute order may be made only against: (a) a party or likely party to the industrial dispute, or (b) a member, officer or employee of an industrial organisation that is such a party or likely party, or (c) a person engaged, or likely to be engaged, in a secondary boycott in connection with the industrial dispute. (2) A dispute order: (a) must clearly identify the persons against whom the order is made and who are bound by the order, and (b) must state a time within which the order is to be complied with or state a period during which it remains in force, and (c) may be varied or revoked by the Commission at any time. (3) If an employee is reinstated or re-employed under this Part, the Commission may order that the period of employment of the employee with the employer is taken not to have been broken by the dismissal. 15 It will be seen that dispute orders provide a mechanism by which the Commission may facilitate and enforce the resolution of industrial disputes in arbitration proceedings. A dispute order of the kind contemplated by s137(1)(a) is in the nature of a restraining order. 16 Proceedings based on the contravention of a dispute order are taken by way of summons to show cause and require the person who answers the summons to be heard. The imposition of a penalty is but one of a number of courses of action which may be taken by the Commission as set out in s139(3). In terms of an industrial organisation including relevantly an industrial organisation of employees the range of actions may have serious consequences, indeed of greater adverse impact than the imposition of a monetary penalty of the amount referred to in s139(4). Cancellation of registration is an extreme example. The provisions of Div 2 of PtIII of ch5 may also seriously impact upon the structure and activities of an industrial organisation. 17 The circumstances in which applications are brought under s139 of the Act bear a striking similarity with the circumstances considered by the High Court of Australia in Australasian Meat Industry Employees Union & Ors v Mudginberri Station Pty Ltd (1986) 161 CLR 98. The AMIEU had established a picket line at an abattoir near Darwin conducted by Mudginberri. A Judge of the Federal Court had granted an interlocutory injunction restraining the AMIEU and others from imposing, giving effect to or enforcing any ban on the provision of goods or services to abattoirs conducted by Mudginberri based on a finding that there was a prima facie contravention by the AMIEU of s45D of the Trade Practices Act 1974 (Cth). Some days later on application of Mudgimberri the Chief Judge of the Federal Court found that AMIEU was in breach of the earlier order by continuing to operate the picket line and imposed a monetary fine holding that the AMIEU had committed a civil contempt by disobeying the earlier order. 18 Before the High Court of Australia AMIEU argued inter alia that the Federal Court had no power to impose a fine for civil contempt. In a joint judgment Gibbs CJ, Mason, Wilson and Deane JJ described civil contempt as being disobedience of the process and orders of the Court in contrast to criminal contempt which involved acts which impeded the administration of justice "such as obstructing proceedings in court while it is sitting or publishing comments on a pending case". Their Honours describe at page 106 and following, the genesis of the distinction and the manner in which civil and criminal contempt have been dealt with both in Australia and in other jurisdictions. Their Honours identified "the very substantial purpose" behind punishment for a contempt which involves wilful disobedience of a court order as involving firstly a disciplining of the defendant and secondly a vindication of the authority of the court. Their Honours concluded that a "deliberate comission or omission which is in breach of an injunctive order or an undertaking will constitute such wilful disobedience unless it be casual, accidental or unintentional." (at 113). Their Honours also upheld the power of the Federal Court to impose a monetary fine for civil contempt. 19 The distinction between civil contempt and criminal contempt was examined in greater detail in the High Court of Australia in Witham v Holloway (1995) 183 CLR 525. In a joint judgment Brennan, Deane, Toohey and Gaudron JJ said: The differences upon which the distinction between civil and criminal contempt is based are, in significant respects, illusory. They certainly do not justify the allocation of different standards of proof for civil and criminal contempt. Rather, the illusory nature of those differences and the fact that the usual outcome of successful proceedings is punishment, no matter whether primarily for the vindication of judicial authority or primarily for the purpose of coercing obedience in the interest of the individual, make it clear as Deane J said in Hinch , that all proceedings for contempt "must realistically be seen as criminal in nature" ( Hinch v Attorney-General (Vict) (1987) 164 CLR 15). The consequence is that all charges of contempt must be proved beyond reasonable doubt. The Court of Appeal erred in holding otherwise.….(at 534). 20 In my opinion it is appropriate to characterise these proceedings under s139 of the Act as being analogous to proceedings for civil contempt. These proceedings are brought consequent upon alleged disobedience of the process and orders of the Industrial Relations Commission of New South Wales. The dispute orders on which they are based is an injunctive order. I should add that I have gained some comfort from the review of civil actions to recover a penalty contained within the judgment of Isaacs J in the High Court of Australia in The King v The Associated Northern Collieries & Ors (1910) 11 CLR 738 esp at 742 and following. 21 It follows that I should apply the same standard of proof and the same general approach to these proceedings as was determined to be appropriate by the High Court of Australia in Witham. 22 Mr Menzies QC who with Mr Benson appeared for the applicant submitted that the proceedings under s139 were civil and that although the criminal onus of proof did not apply there was an appropriately higher standard of proof necessary because of the nature of the proceedings. For this proposition he relied upon a decision of the full court of the Federal Court of Australia in Gapes v Commercial Bank of Australia Ltd (1979) 38 FLR 431. That case dealt with the proper characterisation of proceedings brought under s119 of the Conciliation and Arbitration Act 1904 for a breach of a federal award. It was held in all the circumstances that proceedings under that legislation for the recovery of penalties for breach of an award were not criminal proceedings. That case was heard by a full bench consisting of five members of the Federal Court because of the controversy over that particular issue which had been created by conflicting judgments of that Court and other courts. Although the matter ultimately determined by that case is clear cut, and depended to a significant extent on a construction of the relevant Federal Statute, there is no discussion within the Federal Court judgment concerning the appropriate standard of proof to be applied. I make the same comment with respect to other cases relied upon by Mr Menzies such as Platt v Treweneck (1953) 52 AR 642, a decision of the full bench of the Industrial Commission of New South Wales. That case established that the provisions of s93 of the Industrial Arbitration Act 1940 were criminal in nature. There is no discussion about the proper approach to the relevant standard of proof to be applied in civil proceedings of the kind now under consideration. 23 I conclude that although s139 proceedings are civil proceedings they should be conducted as though they were in the nature of criminal proceedings. Accordingly the criminal standard of proof should be applied to each element of the alleged breach and the proceedings should be conducted by adopting appropriate criminal law practice and procedure rather than civil practice and procedure simpliciter.

ADJOURNMENT OF PROCEEDINGS 24 This Court is required by s139 of the Act to deal with the application "expeditiously". The hearing was conducted on 1, 2, 3 and 6 March. 25 During the course of submissions on 3 March I was informed by Mr Crawshaw that an appeal had been lodged against the orders made by Sams DP which appeal would be determined by a Full Bench of the Industrial Relations Commission of New South Wales. Mr Crawshaw said that the appeal would canvass the same issues which were raised in these proceedings and he asked that I defer handing down my decision until after the appeal proceedings had been concluded. 26 This raised the question of whether I should defer making any orders with respect to these proceedings until the same issues have been determined by a Full Bench of the IRC. If the appeal succeeds and the orders of Sams DP are, for example, quashed then there would be no basis for the maintenance of these proceedings. If the appeal did not succeed, any decision of the Full Bench of the IRC would arguably be highly persuasive, but perhaps not necessarily binding on me. I have made no determination about this issue but raise it merely as a possibility. 27 Any decision which I make in connection with these proceedings will be subject to an appeal to a Full Bench of this Court. Accordingly, this raises issues of comity. 28 My task in these proceedings is limited to considering whether a monetary penalty should be imposed on the respondent. I am not involved in dealing in any way with the fundamental underlying dispute. Accordingly, any delay in finalising these proceedings should not prejudice the parties to any relevant extent. It seems to me that the potential imposition of a maximum monetary penalty of $10,000 and consideration of whether further daily penalties are appropriate should not create fundamental matters of fiscal concern for either party. As I observed during the course of the proceedings the legal costs involved far exceed any monetary penalty which may be imposed. 29 The requirement to deal with this application expeditiously has, in my opinion, been satisfied. I do not regard that requirement as in turn compelling this Court to take any precipitous action in connection with the application which it would not otherwise be disposed to take in all the circumstances. For example, the requirement to deal with the application expeditiously should not allow the rules of natural justice to be breached by, for example, denying the respondent a proper opportunity to prepare its case. In the same way I consider that the requirement to deal with the application expeditiously should not circumscribe any other compelling reasons for delaying the ultimate determination of the proceedings. 30 The hearing of these proceedings was completed on 6 March in the sense that all of the evidence had been heard and the parties had made final submissions. On this basis there was no impediment to the making of a final determination concerning the merits of the respective arguments of the parties. 31 On balance, and having considered all of the issues to which I have referred I had reached the view that it was preferable to allow the appeal proceedings before the Full Bench of the Industrial Relations Commission to be concluded before I delivered judgment in these proceedings. Accordingly I proposed to stand these proceedings over generally. 32 However on the final day of the hearing both parties asked that I proceed to determine these proceedings without awaiting the determination of the appeal proceedings. (This is the only matter upon which the parties reached any consensus during the conduct of these proceedings). With some reservations I have determined to deliver judgment despite the non-finalisation of the appeal proceedings.

THE EVIDENCE 33 The respondent put the applicant to strict proof of the claim. The applicant's evidence consisted predominantly of documentation supplemented by some brief oral evidence. As it transpired, the respondent called no evidence. 34 The documents tendered by the applicant established that there had been a long running dispute between the applicant and the respondent as to whether the results of the ELLA test could be used by the applicant to determine the number of Support Teachers Learning Difficulties (STLDs) who would be employed at particular schools throughout New South Wales. 35 The Council of the respondent plays an important part in the management of its affairs. In November 1999 the Council decided to ban the conduct of the ELLA test in the year 2000. On 15 February 2000 John Hennessy, General Secretary of the respondent issued a memorandum addressed to "Federation Representatives - All High Schools and Central Schools" with respect to the subject matter "Allocation of STLD positions - Ban on ELLA Test". The memorandum said: The decision of the November 1999 Federation Council to ban the 2000 ELLA test remains in place. The matter of the allocation of STLD positions K-12 has been raised with the Minister and will be the subject of further discussions.

This ban will remain in place whilst ever ELLA tests are used as a sole mechanism to determine secondary STLD allocations.

Further developments relating to this matter will be communicated to schools as they arise.

36 Subsequently there was correspondence between the Minister for Education and Training and the respondent with respect to the imposition of the ban on the conduct of ELLA tests seeking a review of the respondent's position. A memorandum on the letterhead of the respondent dated 23 February 2000 which was said to be authorised by John Hennessy, General Secretary addressed to "Federation Representatives - All High Schools and Central Schools (Please bring this to the attention of all Federation members)" entitled "Ban on ELLA Test" confirmed that the ban on the conduct of the ELLA test in the year 2000 remained. 37 A dispute was notified to the Industrial Relations Commission of NSW which came on for hearing before Sams DP on 24 February 2000. Counsel appearing for the applicant advised his Honour that "the dispute concerns the English Language Literary Assessment which I now refer to as ELLA for convenience, and also teachers known as Support Teacher Learning Difficulties and they are addressed in some of the correspondence as I will tender as STLDs." There followed the tendering of exhibits and the making of submissions on behalf of the applicant and by Ms B Seymour who appeared for the respondent. 38 At the conclusion of discussions that day the matter was adjourned for further hearing at 4pm on Friday 25 February 2000. Following the hearing that day Sams DP issued a number of directions pursuant to s134(2) of the Act, none of which had the effect of creating any penalty for breach. They were, in effect, in similar terms to pars 1, 2 and 3 of the orders subsequently issued by Sams DP on 28 February which are the subject of these proceedings. The first direction asked the Federation through its Executive officers to cease or refrain from imposing bans, limitations or restrictions on work associated with ELLA on 29 February 2000. The second direction required the respondent to take all necessary steps to advise members of the removal of those bans before mid-day on 27 February 2000. 39 The matter was adjourned to 9am on 28 February 2000. Those proceedings commenced with Sams DP indicating that he had received correspondence from the respondent "advising that it is unable to comply with the directions I made on Friday and it seeks a variation of those directions; also advising that its Executive is meeting now I presume." Sams DP was advised by Ms Seymour who then appeared for the respondent that "the Federation took all steps to put into effect a meeting of its Executive. The Executive on 22 February did not give the senior officers the carriage of the matter so the decision-making had to come back to another Executive after the 22 February Executive and the General Secretary took all steps on Friday evening to convene that meeting." Ms Seymour then indicated that there was insufficient time for the Executive to have held a meeting and indicated that one could be held before mid-day on 28 February. The proceedings were then adjourned until 1pm that day to allow the Executive of the respondent to meet and consider the directions previously made by Sams DP, which were suitably modified to accommodate the meeting of the Executive. 40 When the proceedings before Sams DP resumed at 1pm on 28 February his Honour was advised that the respondent would not lift the ban. Counsel for the applicant stated that his client sought the making of dispute orders. This was opposed by counsel who then appeared for the respondent who submitted that conciliation had not yet been exhausted and that it was premature for dispute orders to be made. 41 There followed further submissions and a private conference. That private conference concluded at about 4pm that day. The applicant then sought the making of dispute orders. Sams DP issued a certificate of attempted conciliation under s135 of the Act and then commenced to hear the application for dispute orders. The applicant prepared a draft of the dispute orders and presented them to Sams DP. Shortly before 4.30pm Sams DP made a statement and also made orders orally. As I have already indicated, those orders were in the same terms as the draft submitted by the applicant save for par 3 as to the period they were to remain in force and the time for compliance. 42 On 28 February 2000 the respondent on its letterhead issued a memorandum which was said to be authorised by John Hennessy, General Secretary of the respondent and was addressed to "Federation Representatives - All High Schools and Central Schools (Please ensure that your staff are aware of the contents of this faxstream)". The subject matter of the memorandum was entitled "ELLA Test Ban". The memorandum was in the following terms: The ban on the ELLA test remains in place. The Minister has still failed to give a commitment that the ELLA test results will not determine the STLD allocations.

The ELLA test ban went to the Industrial Relations Commission again on Monday 28th February 2000. Deputy President Sams issued an order for the bans to be lifted. In the absence of an assurance from the Minister and the Department that ELLA test results will not determine STLD allocations, the ban remains in place.

43 There is a facsimile imprint contained on the memorandum showing that it was forwarded by fax message on 28 February 2000 at 19:05:02. 44 The Federation also published a "Hot Line Message". A printed version entitled "Federation Bans on the ELLA Test" commences "Thank you for calling the NSW Teachers Federation hot line. This message was recorded 4.30pm on 29 February 2000." The message says in part: "Members are advised that the bans on the conduct of the ELLA tests are still in place and that this is part of an ongoing State-wide industrial dispute about the allocation of STLDs positions. Information from members around the State indicate that the ELLA tests did not proceed today as the support for the bans has been overwhelming." 45 A memorandum dated 2 March 2000 on the letterhead of the respondent signed by John Hennessy, General Secretary is addressed to all Federation representatives and principals of high schools and central schools. Its contents confirm that the ban on the ELLA tests remains and refers to various proceedings before the Industrial Relations Commission taken on 2 March 2000. 46 On the basis of the above evidence I am satisfied beyond a reasonable doubt:

1. That prior to the making of the dispute orders by Sams DP the respondent had imposed and there was in place a ban on the administration of ELLA.
2. That the ban to which I have referred is a "ban, limitation or restriction on work associated with the English Language Literary Assessment to be conducted on 29 February 2000 at a school conducted by the applicant" as referred to in par 1 of the dispute orders issued by Sams DP the subject of these proceedings.
3. That at least one representative of the respondent was present and heard Sams DP pronounce the orders shortly before 4.30pm on 28 February 2000 which are in the form which I have previously set out.
4. The same ban as described in par 1 of the dispute orders issued by Sams DP remained in place after 6pm on 28 February 2000 and at least until some time on 2 March 2000.

DEFENCES 47 The respondent through its counsel raised a number of matters by way of defence to this application. I shall deal with each in turn:

Particulars 48 It was asserted that the respondent had not been furnished with sufficient particulars of the breach alleged against it to enable it to defend the proceedings. I directed the applicant to furnish particulars in writing to the respondent. I am told that such particulars were in fact furnished but they did not find their way into evidence in these proceedings. 49 The application filed by the applicant recited the fact that the dispute orders had been made and then proceeded: "Contrary to the said orders, the respondent took no action to comply with the said orders." 50 In the course of his opening Mr Menzies gave the following particulars: "The allegations are that on 28 February this year Deputy President Sams made the orders that are contained in the affidavit and that contrary to those orders the Teachers Federation did not cease or refrain from imposing a ban. The ban, as I think is common ground, was already in existence, so what effectively was being done to cease the imposition of a ban which had been already in place, and the evidence will be that far from the Teachers Federation doing that it did the reverse and, indeed, permitted the continuation of the ban. That is the allegation." 51 In a nutshell the allegation as particularised is that the respondent failed to cease the imposition of the ban on the conduct of the ELLA test. 52 In my opinion the allegation has been framed with sufficient particularity for the respondent to know the breach which it is alleged to have committed.

Mens rea 53 Mr Crawshaw submitted that the presumption that mens rea is required before a person can be guilty of a criminal offence which applies to statutory offences had not been displaced. Accordingly, the applicant had to demonstrate that the respondent intended to breach the dispute orders and that such breach was not a casual, accidental or unintentional disobedience (in the sense that the any such breach would not give rise to civil contempt). 54 It is not necessary that I consider this aspect further because whether or not mens rea is a necessary element in a breach for the purpose of s139 of the Act, and whether or not any conduct which can be described as casual, accidental or unintentional will result in no such breach arising, I am satisfied beyond a reasonable doubt that on the basis of the evidentiary material to which I have referred that at all relevant times the respondent was aware of the orders made by Sams DP and that by continuing to maintain the ban on the conduct of the ELLA tests and by refusing to take any action to remove any such ban, the respondent by its officers was aware that it was in breach of the orders. I am satisfied that the respondent deliberately and knowingly flouted the orders made by Sams DP which form the basis of this application.

Ambiguity 55 Before considering the submissions of the parties concerning the alleged ambiguity in the manner in which the dispute orders were framed it is necessary to consider the provisions of the Act which deal with the making of dispute orders. These are s137 and s138, the terms of which I have earlier set out. 56 Section 137(1) describes the kinds of dispute orders which may be made by the Commission when dealing with an industrial dispute in arbitration proceedings. It is only the first of those dispute orders namely that a person cease or refrain from taking industrial action which is involved in these proceedings. Neither the applicant nor the respondent made any submissions about the proper approach to construction of s137(1)(a), by reference to the two alternative postulations namely ceasing or refraining from taking industrial action. No submissions were made as to whether any dispute order of the kind described in s137(1)(a) may deal with only one of these two alternatives or whether it is permissible for the one order to cover both alternatives. As the two alternatives postulated cover different situations it seems to me, unaided by submissions, that it is permissible for the one order to accommodate both circumstances. That is the order may both direct a person to cease from taking existing industrial action and refrain from taking industrial action which has not yet commenced. This matter becomes relevant because of the manner in which par 1 of the orders made by Sams DP is framed. 57 The use of the words "cease or refrain" as contained within par 1 of the dispute orders created the first ground upon which Mr Crawshaw attacked the orders as being ambiguous and therefore incapable of being enforced. Mr Crawshaw submitted that cessation referred to an existing state of affairs whereas "refrain from" must refer to something which was not yet in existence. This gave rise to uncertainty as to what was intended and therefore rendered it impossible of performance by the respondent. 58 Before considering the relevant authorities which provide some guidance to the proper approach to the resolution of this issue, I should observe that the only kinds of dispute orders which are permissible under s137 are those described in pars (a) to (d) of subs(1). Clearly, the kind described in par (a), as I previously observed, is the only kind of dispute order which is relevant to these proceedings. It follows that the contents of par 2 of the dispute orders issued by Sams DP could not be a dispute order for the purpose of s137 nor could it found any application under s139. Mr Menzies embraced this proposition during the course of the proceedings and did not rely on the provisions of par 2. It follows that the provisions of par 3 are facilitative in part and also in part are required because of the provisions of s138(2)(b), to which I shall return when considering the second submission made by Mr Crawshaw with respect to ambiguity. 59 The question of ambiguity in contempt orders was considered by the Full Court of the Federal Court of Australia in Microsoft Corporation v Marks (1996) 139 ALR 99. The principal judgment was that of Beaumont J with whom Lindgren and Lehane JJ agreed. Those appeal proceedings concerned proceedings for civil contempt taken against a defendant who was alleged to have breached certain consent orders made in court. It was argued that the orders were ambiguous. Beaumont J held that one of the orders in particular was capable of at least two possible interpretations. It followed in his Honour's opinion that the order should be treated as equivocal and its meaning as ambiguous and that any attempt to move for contempt for alleged breach of that order must fail. His Honour referred to a line of authority culminating in a decision of the High Court of Australia in Australian Consolidated Press Ltd v Morgan (1964 - 1965) 112 CLR 483. Those appeal proceedings also involved a consideration of proceedings for civil contempt arising out of an alleged breach of an undertaking given to a court. Both Windeyer and Owen JJ held that in all the circumstances the language used in the undertaking was ambiguous and could not give rise to a breach. The statement of general principle adopted by their Honours was to the effect that the undertaking had to be expressed in clear language and the breach needed to be established with certainty. 60 In the same proceedings Barwick CJ expressed a different view. His Honour rejected a proposition that "unless the language of the undertaking was unambiguous and certain, it should not be enforced by contempt proceedings." His Honour said: "If the order or undertaking is so expressed as to be meaningless, there is of course nothing which can be enforced. But, if it bears a meaning which the Court is satisfied is one which ought fairly to have been in the contemplation of the person to whom the order was directed or who gave the undertaking as a possible meaning, the fact that that meaning results from a process of construction and involves a choice of possible meanings does not, in my opinion, preclude the Court from enforcing the order or undertaking in the sense which the Court assigns to it. If the Court is satisfied that the party said to be in contempt bona fide believed himself bound only by a construction which the Court thinks to be erroneous, it may for that reason, in its discretion, refuse to make an order or, if it makes an order, refuse to make an order for costs against that party. But, even in such a case, the enforcement of the plaintiff's rights must not be left out of account. A party who has bona fide acted on an erroneous view of an order or undertaking may, according to the circumstances, nonetheless be justly adjudged guilty of contempt in procedure. In my opinion, this is equally so where, because of its terms or circumstances, the order or undertaking requires construction in order to determine its meaning and remove ambiguities patent or latent." (at 492)

61 It may be that the apparent tension between the approach taken by Owen and Windeyer JJ and that of Barwick CJ in Morgan is more illusory than real. This is because the approach of Barwick CJ appears to canvass the intermediate steps by which a court will determine whether an order is ambiguous. As I understand the approach of Barwick CJ it is that there may be more than one possible meaning of an order but if on a process of construction a court is able to determine what is the real meaning of the order without resulting in any determination of ambiguity, this will be the meaning for the purpose of enforcement of the order. 62 The judgment of Lindgren J in Microsoft v Marks previously referred to contains a passage which is illustrative of this point. His Honour said: The proposition that a contempt will not be found where the terms of an order or undertaking are unclear, ambiguous or apt to mislead (except, perhaps, if the prosecutor proved that the contemnor understood them in accordance with what the court holds to be their true meaning) must be distinguished from certain other propositions. It does not signify that there is no breach wherever there is difficulty in the construction of the terms of an order or injunction which it falls to a court to resolve. Nor does it signify that contempt will not be found wherever an alleged contemnor did not understand the terms of an order or injunction according to their true meaning, much less wherever an alleged contemnor was unaware that his or her conduct constituted a breach of the order or undertaking (cf Watkins v AJ Wright (Electrical Ltd) [1996] 3 All ER 31). (at 121). 63 Having regard to the above authorities I now turn to consider the provisions of par 1 of the dispute orders issued by Sams DP. As I read these provisions they appear to me to require that the respondent through its officers, employees and members cease from imposing a ban, limitation or restriction on work associated with ELLA on 29 February 2000 and, also direct the respondent etc. to refrain from imposing a ban, limitation or restriction on such work. Presumably the work as described refers to the administration of the test on 29 February 2000. I take the view that the meaning of par 1 is clear in one respect namely that the respondent is to desist from imposing a ban, limitation or restriction on work associated with ELLA on 29 February 2000 at any school conducted by the applicant, and that it must cease any such existing ban. 64 Whilst there may be a theoretical difficulty in the construction of the provisions of par 1 it is not such, in my view, that breach would not found entitlement at the suit of the applicant to an order under s139(3)(e) of the Act. There is no suggestion that the respondent did not understand the terms of par 1. In fact, it is clear from the evidence to which I referred that the respondent at all times was aware that the orders of Sams DP required it to lift the ban which had been imposed by it on ELLA and it refused to do so. 65 The next area of ambiguity relied upon by Mr Crawshaw arose out of the provisions of par 3 of the orders. It will be observed that s138(2)(b) requires a dispute order to "state a time within which the order is to be complied with or state a period during which it remains in force." Mr Crawshaw submitted that it was permissible to state either the time or the period but not both and secondly, par 3 having stated both created ambiguity as to the manner in which compliance was required. If, arguably, the provisions of par 1 applied only to work to be carried out which was associated with ELLA on 29 February 2000 then there would be no necessity for the order to remain in force for a period of seven days. In any event the fact that the order is to remain in force for this period was inconsistent with compliance by the time stipulated namely 6pm on 28 February. 66 In my opinion the resolution of this issue can be determined by reading the provisions of par 3 together with the provisions of par 1 which is the substantive dispute order issued by Sams DP. As I have earlier observed par 1 requires the cessation of the existing ban. In this context par 3 requires that the ban cease by 6pm on 28 February 2000 and requires that to the extent that the respondent must refrain from imposing any new ban, such restraint operates from the making of the orders and remains in force for a period of seven days. 67 Arguably, to the extent that the respondent was restrained from imposing any ban on and after the making of the orders for such period of seven days as exceeded the cessation of work on 29 February 2000, the order was superfluous. Such a situation might give rise to ambiguity in relevant circumstances. However in the circumstances where the application now being considered is confined to a breach of par 1 namely directed to work to be performed on 29 February 2000, no relevant ambiguity arises. 68 Accordingly, on this basis, the provisions of par 3 as framed read in conjunction with the provisions of par 1 create no ambiguity such as to preclude the making of an order under s139(3)(e) of the Act based on a breach of par 1. 69 I should add that Mr Menzies submitted that par 1 should be construed as applying not only to work associated with the administration of the test on 29 February 2000 but that those words also describe the type of test generally and therefore had the effect of applying to the administration of the ELLA test in days subsequent to 29 February 2000. 70 If Mr Menzies were correct in this assertion, par 1 would in my view give rise to ambiguity. Mr Menzies having submitted that this construction of the provisions of par 1 should be considered as an alternative thereby conceded, in my view, that there was ambiguity in the manner in which the provisions of par 1 were framed. If Mr Menzies were correct in this submission, it would have had the effect of enabling the respondent to succeed in these proceedings. However, I reject this alternative approach to construction as being open on the language used in par 1. It is clearly limited in my opinion to work associated with ELLA on 29 February 2000, that is to the work associated with the administration of that test on that day only. 71 For these reasons I reject the submission of the respondent I this regard.

Impossibility of compliance 72 Mr Crawshaw submitted that by reason of the time limit set by par 3 of the dispute orders it was impossible for the respondent to comply. This required that the ban be lifted by 6pm on 28 February 2000 in circumstances where the order had been pronounced orally by Sams DP shortly before 4.30pm that day. 73 Information furnished to Sams DP during the course of the proceedings was to the effect that the administration of the dispute remained in the hands of the Executive of the respondent. The Executive comprised a number of teachers from different parts of New South Wales who were required to meet in person. It would be impossible to have arranged a meeting of the Executive by 6pm, that day. 74 Sams DP had considered a similar argument put to him by counsel for the respondent during the course of proceedings on the afternoon of 28 February. In the statement made by Sams DP at the time of making orders Sams DP referred to the proceedings which had taken place before him on the previous Friday in which he had issued certain directions under s134, to which I have earlier referred. I set out verbatim the statement of Sams DP made on 28 February which deals in part with the question of compliance and futility. Despite my attempts at conciliating a resolution of this dispute today, I have been singularly unsuccessful.

Having issued a certificate of attempted conciliation, pursuant to s135 of the Act, I proceeded immediately to hear an urgent application for dispute orders. Having heard the submissions of Mr Crow of Counsel, for the Department, and Ms Lowson of Counsel, for the Federation, I reaffirm my comments of last Friday:

1. Tomorrow's English Language Literacy Assessment (ELLA) test will have no immediate effect (if at all) on school staffing levels until at least next year.

2. More significantly, however, the proposed Review may, or may not, result in the ELLA test being utilised in the methodology to be adopted for the placement of Support Teachers Learning Difficulties (STLDs) next year.

3. The proposed ban can have absolutely no effect on the staffing decisions which have already been made and about which the Federation complains. I note however, that today the Federation has filed a dispute notification concerning the allocation of STLDs this year and its impact on individual schools. This notification will be listed shortly and dealt with in the usual way.

There are clear public interest considerations in the ban being lifted and for the ELLA test to proceed as planned.

My efforts in directing and encouraging the Federation to see the illogicality of the ban have seemingly been rejected.

Having regard for my statement of last Friday and the effect this ban will have on students, parents, teachers and the community generally, I am left with no alternative but to grant the orders sought in terms of Exhibit "11".

I do not accept that the orders here made are futile. There is no evidence that this is so, particularly in light of my directions last Friday, sent to all schools, and my expectation that the ban would be lifted. 75 It is clear that Sams DP had regard to the fact that he had issued certain directions on the previous Friday including a direction that notification be sent to all schools. That is Sams DP anticipated that all members of the respondent including, presumably, the Executive would have been aware of the nature of the directions which had been issued. 76 Counsel for the applicant indicated to Sams DP at 1pm on 28 February that his client intended applying for dispute orders. Counsel for the respondent was present when this was said. Accordingly, the respondent was and should have been aware at least from 1pm on 28 February that there was a possibility that dispute orders might be made against it. The evidence is to the effect that at all relevant times the respondent was aware that the applicant wished to have the ELLA test administered throughout New South Wales schools on 29 February. Accordingly, as was well known to the respondent, the matter was at that stage urgent. 77 There is no evidence that the respondent took any step to comply with the dispute orders issued by Sams DP and was unable to do so by reason of the time limitation imposed. On the contrary the evidence is to the effect that the respondent determined not to take any action to comply with the dispute orders in any way because it was determined not to lift the ban on the administration of the ELLA test. In fact the evidence was that at 7.05pm on 28 February the respondent was able to initiate a faxstream communication to all of its members presumably through their places of work to inform them that the dispute orders had been made but that the ban remained in place. On this basis impossibility of performance becomes, in my opinion, an irrelevant matter. The respondent simply did not intend at any stage to comply with the dispute orders. Questions of impossibility of performance are only relevant in my opinion if they have some bearing on the ability of the respondent to comply in circumstances where it has the intention of attempting to comply. Impossibility of performance has no relevance to an organisation which is determined to breach an order. 78 I should add that I am not satisfied on the state of the evidence that, on the balance of probabilities, it was impossible for the respondent to have complied. The onus of proving this lay on the respondent.

CONCLUSION 79 I reject each of the submissions made on behalf of the respondent to resist a finding that it was in breach of the dispute orders issued by Sams DP. It follows therefore that I find that the respondent failed to cease the imposition of a ban, limitation or restriction on work associated with the English Language Literacy Assessment on 29 February 2000 at any school of whatever kind conducted by the applicant during such period and at a time it was obliged to cease from imposing such a ban, limitation or restriction according to the dispute orders issued by Sams DP on 28 February 2000. Accordingly the respondent has contravened the dispute orders. No other matter was put in issue during the course of these proceedings. 80 It remains to consider the imposition of any penalty as sought by the applicant or as to whether there is any other matter which this Court is to consider pursuant to the provisions of s139 of the Act. 81 The proceedings are stood over to enable the parties to consider these reasons for judgment. I ask the parties through their legal representatives to confer and discuss what further processes are to be undertaken in connection with these proceedings and by what means, that is, written submissions, further hearing and the like. I ask that one of the parties with the consent of the other approach my Associate to advise her as to any agreed course. In any event I grant leave to have the matter restored to the list by either party at short notice.

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