Director General, NSW Department of Education and Training and the Managing Director of TAFE v NSW Teachers Federation

Director General, NSW Department of Education and Training and the Managing Director of TAFE v NSW Teachers Federation - [2010] NSWIRComm 77 - NSWIRComm 2009 case summary — Zoe

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[36] In exercising the discretion as to an appropriate penalty under s 139(3)(e) of the Act, it is necessary for the Court to consider the overall culpability of the guilty person, whilst noting that the imposition of a penalty under s 139 is not an application of the criminal law: see BHP Steel Ltd v The Australian Workers' Union, New South Wales (at [94] - [99]). Regard must also be had to the fact that the legislature has provided for a higher maximum penalty for the first day of the contravention and a lower penalty for each subsequent day the contravention occurs. 14 However, it is also necessary to make reference to one additional matter, namely the context in which dispute orders are made and the part that dispute orders play in the overall regulation of industrial matters in New South Wales. Chapter 3 of the Industrial Relations Act deals with industrial disputes and provides for mandatory conciliation and then arbitration. There is provision in the Act for the enforcement of awards and determinations made by the industrial tribunal. Furthermore, the tribunal is empowered to make dispute orders (s 136) of a kind described in s 137 and subject to conditions set out in s 138. Section 139 empowers this Court to impose a penalty for breach of a dispute order. Accordingly, the regulation of industrial disputes in New South Wales involves the empowerment of a third party umpire to make binding orders on parties which can be enforced through mechanisms established by the State and which include the creation of civil penalties as part of the armoury of measures that may be taken to ensure compliance with and enforcement of awards, orders and determinations. 15 The existence of a system such as that established by the Industrial Relations Act 1996 reflects a sophisticated and civilised approach to dealing with industrial disputation, including differences of opinion which do not necessarily manifest themselves in any industrial action. In any sophisticated and civilised regime that regulates the manner in which persons, and entities that represent them, conduct their affairs, it is necessary to provide an overarching structure to ensure that the regime works in practice. Without such an overarching structure, there would be no means of compelling obedience to authority and this would lead to anarchy. So that any teacher who might read this judgment may fully understand the situation to which I am referring, the need for a hierarchical structure of authority, and means of implementing it, is replicated in TAFE and school campuses. 16 As was observed by Staff J in Director General, NSW Department of Education and Training, previously referred to:

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the making of a dispute order is a serious step given the consequences for contravention and persons against whom a dispute order is made are bound to take it seriously, especially members, officials and employees of organisations who may be putting in jeopardy the very existence of their organisation … (At [37]). 17 The principles established by this Court and its predecessor require that the starting point for the assessment of an appropriate penalty is a consideration of the objective seriousness of the breach by the respondent of the dispute order. As the evidence to which I have referred demonstrates, there was on the part of the respondent a deliberate and planned course of conduct leading up to the arranging and holding of the stop work meeting. That stop work meeting was undertaken in calculated disregard of the dispute orders issued by the Full Bench of the Commission. The circumstances in which that stop work meeting was conducted are indicative of an act of defiance in reaction to a decision of a Full Bench of the Commission. It is representative of a disregard for and dismissal of the authority of the New South Wales Industrial Relations Commission. This type of conduct if committed by a student at a TAFE college would not and could not be tolerated because of the obvious impact that it would have on the integrity of the organisation and the authority of those conducting it. 18 The respondent sought to argue that the breach of the dispute order was in some way less serious because of a number of matters. 19 It was said that the stop work meeting was of short duration, was scheduled in advance and permitted TAFE institutes to prepare and implement contingencies. Such a submission ignores the reality of the context in which the stop work meeting was organised and conducted. It ignores the fact that these proceedings are concerned with a breach of dispute orders which have the force of law. It assumes that a stop work meeting of up to three hours would have a limited impact upon activities at TAFE colleges. In the same way, it was submitted:

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(h) to encourage and facilitate co-operative workplace reform and equitable, innovative and productive workplace relations. 22 In particular, the respondent relied on the provisions of s 3(g) which emphasises the resolution of industrial disputes by conciliation and, if necessary, by arbitration. The respondent then directed the attention of the Court to s 139(3)(f), the provisions of which I have previously set out in these reasons for judgment. The respondent submitted that any order that the Court should make should be directed to one that "would help in resolving the industrial dispute." It was said that the imposition of a monetary penalty would not help in resolving the industrial dispute, and, in any event, the dispute had been resolved. Therefore, presumably, there was no need to impose a penalty or at least a penalty of a high amount. 23 This submission, in that it relies on s 139(3)(f), is misconceived. That provision refers to "any other determination" which must be a reference to a determination other than any of the matters referred to earlier in (a) to (e). It ignores the fact that all of the earlier matters involve the imposition of a sanction. There is nothing within s 139(3)(f) which would derogate in any way from recourse to any of the sanctions earlier referred to in the subsection. 24 In the same way, I would regard the reference to the objects of the Act as contained within s 3 as being irrelevant to the determination of these proceedings brought under Part 2 of Chapter 3 of the Act. The substance of this submission may be dealt with shortly. The essence of these proceedings is that they are directed to the contravention of a dispute order. They are not concerned, other than by way of background, with the underlying industrial dispute. The dispute order is, as I have previously said, a manifestation of the authority of the Industrial Relations Commission of New South Wales whose orders, awards and determinations have the force of law. This reflects the will of the legislature. On this basis, the fact that the underlying industrial dispute has been resolved is irrelevant for the purpose of the determination of these proceedings. This is particularly so because the Court has not been informed as to the basis upon which the dispute was resolved. There are logically many possible reasons why the underlying dispute may have resolved and there are many possible bases upon which that might occur. Whether and to what extent the fact that the underlying dispute has been resolved may have been taken into account in other proceedings brought under Part 2 of Chapter 3 of the Act is, in my opinion, irrelevant for the purpose of the determination that I am required to make in these proceedings. 25 In all the circumstances, I regard the breach by the respondent of the dispute order as a most serious matter. Furthermore, the Court is required to have regard to the deterrent effect of any monetary penalty that is imposed. This deterrent effect will apply to all others within the State of New South Wales who may be the subject of dispute orders made by the Industrial Relations Commission. It will also apply to this respondent. 26 In the context of the specific deterrent effect on this respondent, it was submitted on its behalf that "there is no reason to believe that the Federation is likely to contravene dispute orders in the future …." Of course, this is contrary to the later contravention of a dispute order by the same respondent, which was the subject of the proceedings before Staff J in Director General NSW Department of Education and Training, to which I have previously referred. In those proceedings, the respondent pleaded guilty to having contravened a dispute order made on the 4 February 2010, such contravention occurring on 11 February 2010. 27 Given the manner in which the respondent went about organising the stop work meeting in flagrant breach of the dispute order, this Court can have no confidence that the respondent will not breach any further dispute order if it determines that it should act in that way. I intend taking into account the deterrent effect both generally and on this respondent to the fullest possible extent when assessing the appropriate penalty. 28 There is a subjective matter which can be taken into account to mitigate the amount of the penalty to be assessed, namely the fact that the respondent indicated that it was prepared to plead guilty at an early point in time in the proceedings. 29 However, the respondent further submitted that its admission of a contravention of the dispute order constituted evidence

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of contrition and recognition of conduct in breach of its obligations under the dispute orders … it should be given proper weight should the Court be giving consideration to the imposition of a penalty. I should state at the outset in response to this submission that at no time during the course of the proceedings did the respondent give any hint of apology for its conduct nor did it give any indication of any feelings of remorse or contrition for that conduct. To the contrary, the respondent appeared to be submitting that it was entitled to contravene the dispute order because of the nature of the underlying dispute. I do not accept in these circumstances that the entry of a plea of guilty constitutes an indication of contrition or remorse. It is equally explicable in terms of a realisation that if the proceedings had been litigated the inevitable result would have been a finding of guilt. 30 I am not prepared to accord any discount to the respondent for this matter. 31 I have previously indicated the maximum penalty is $10,000. Having regard to the serious nature of the offence, the need to ensure deterrence and the subjective matter to which I have previously referred, I am of the opinion that an appropriate penalty in all the circumstances is $7000. 32 There is no question of any order for costs being made. 33 For completeness, I should note that the disposal of the proceedings consequent upon the entry of a plea of guilty has obviated the need for me to deliver reasons for judgment when dealing with interlocutory matters concerning the appropriate standard of proof to be applied in the course of the proceedings and concerning also the validity of a summons for the production of documents. I should also add that the Court is required by s 139(1) to deal with applications brought under Part 2 of Chapter 3 of the Act "expeditiously." Despite the fact that the Court has endeavoured on a number of occasions to bring the proceedings to a final hearing, because of reasons that are personal to each of the parties, the disposal of these proceedings has been anything but expeditious. I emphasise that the reason for this lies with the parties, and in no manner reflects the inability or reluctance of this Court to deal with the proceedings. Orders

At a glance

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Judgment (57 paragraphs)

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Cases Cited (3)

Cited By (8)