14 Mr Aird was not called to contravene this conversation. It is, however, the TWU's position that the reference by Mr Aird, if made, predates the undertaking given to the Commission and the period of stability which followed that undertaking. It is, it was contended, thus a matter of history rather than of current relevance.
15 The fifth matter is that on or about 16 February 2001 Chubb commenced proceedings in the Supreme Court in relation to action taken against it involving the TWU. The orders claimed sought to injunct the TWU, its officers, members and others from, in effect, picketing and certain consequential matters. The proceedings were stood over in the light of the resumption of work on that date. Chubb has subsequently informed the TWU that it intends to, or is willing to, pursue the TWU and its members in relation to any loss occasioned by Chubb as a result of industrial action.
16 On Friday, 20 April the matter came before me again for report during which Chubb indicated an intention to seek dispute orders unless the TWU gave a further undertaking designed to avoid industrial action and to enable the parties to proceed upon the two-man soft-skin trials as directed by Marks J. The form of undertakings sought by Chubb went well beyond that which had been given to the Commission on 11 April. The TWU, I would have thought not surprisingly, declined to give the undertaking in the form sought. Chubb then indicated its intention to pursue dispute orders, that now culminating in this decision.
17 Mr Hatcher of counsel for the TWU has put a multi-aspect case against the grant of dispute orders. It includes an attack upon the evidence upon which Chubb seeks to rely as justifying their grant; and general submissions relating to the nature of the discretion involved in issuing dispute orders and the fact that they are not often granted. He pointed to the serious consequences for those the subject of the orders, particularly given the form of orders which is sought. He also submitted that orders should not be made as a security blanket to make Chubb feel comfortable in the absence of actual industrial action or any threatened industrial action. He noted that for the Commission to decline to grant the orders would not prevent the matter being reconsidered if evidence of industrial action or threat arose. He contended that Chubb had itself engaged in a series of actions which constitute industrial action by making the November agreement with the TWU regarding soft-skins and the trial of two-man crewing and then secretly entering into a contract with Westpac inconsistent with that agreement; by locking out the TWU members on 16 February; by Chubb issuing threats concerning the termination of the enterprise agreement and the consequential reversion to the award with substantial reductions in income and the introduction of a different union to perform the work, which threats caused Marks J on 20 March to criticise those observations. It follows, it was submitted, that the TWU was not the only party which was acting in a confrontational or aggressive manner and in a dispute characterised by that conduct by the employer the Commission should take account thereof when considering the exercise of its discretion. It was submitted that the principle of "those who live by the sword should die by the sword" ought have some application in this context when the Commission is considering whether Chubb's interests ought be protected by dispute orders. It was noted that to the extent that Chubb has or will suffer loss it has announced its intention to seek to recover damages in the Supreme Court. In those circumstances, the protection of the Commission becomes a lesser imperative, particularly where there is no industrial action under way or in contemplation.
18 The TWU also submitted that the Commission should not ignore the subject matter of the dispute, it relating to substantial issues involving health and safety. It was submitted that Chubb was providing the employees with two options; either accept that the work must be done contrary to the rules of health and safety or see the work go elsewhere. The Commission, it was submitted, should be wary about granting dispute orders in that context. The TWU submitted that its express commitment to undertake the trials directed by Marks J should be accepted as sufficient indication of its willingness to do so and that orders should not issue in those circumstances.
19 Mr Kite of senior counsel for Chubb urged the Commission to grant dispute orders. The point of the orders sought in these proceedings was to require the TWU and its members to refrain from engaging in industrial action. It was disputed that the TWU's undertaking to participate in the trials commencing on Monday next is adequate to achieve stability over the forthcoming months. The trials were directed by Marks J on 20 March and whilst that undertaking was then in operation a strike occurred on 9 April; that sequence demonstrates that something further is required. It was submitted that the Commission is charged with attempting to prevent industrial dislocation. While there is no ongoing industrial action at the moment there is reliable evidence it is threatened for the future. It was submitted that the TWU and its members possess an unrequited desire to demonstrate its concern over the introduction of soft-skins and WorkCover's alleged failures. Evidence of that desire flows from the conversations with Messrs Aird and Andrich.
20 As to Chubb's actions throughout the matter, Chubb has been attempting to avoid the consequences of industrial action. The evidence of Mr Moutafis was that a one-day strike had an effect which took two to three weeks to catch up and where industrial action was apprehended it was necessary for Chubb and, importantly, its customers to gear up to ensure that the cash supply was not affected. It is too late to try to deal with industrial action once it has commenced because of these effects. It was submitted that Chubb's pursuit of its rights was neither aggressive or improper; it was doing no more than it was entitled to do. As to the proposition advanced by the TWU that Chubb had initiated the industrial action by its February advice of the Westpac contract, it was submitted that the contractual arrangements with Westpac prohibited prior notice. The delegates were informed of the contract immediately it was possible and that caused an immediate strike.
Conclusions
21 I readily accept that the Commission, in the exercise of its discretion in relation to dispute orders, commonly treats the issue of such orders as a serious matter, not to be lightly undertaken. See judgment of Glynn J in Richmond Ex Services Club Limited v. Australian Liquor, Hospitality and Miscellaneous Workers' Union, New South Wales Branch (Unreported, 21 November 1997, IRC97/6283) where her Honour said:
The making of dispute orders is a very serious matter. In the light of the paucity of evidence to support this application for dispute orders, it is not granted at this time. The application may be renewed at short notice should the necessity arise.