Secretary NSW Department of Education v The Australian Education Union New South Wales Teachers Federation Branch

1. [1]

   On 25 November 2021, the Secretary NSW Department of Education (“the Prosecutor”) notified the Industrial Relations Commission of New South Wales (“the Commission”) of an industrial dispute pursuant to s 130 of the Industrial Relations Act 1996 (NSW) (“the Act”); Case No 2021/00336658 (“the industrial dispute”). The notification nominated Maxine Sharkey, General Secretary, of an industrial organisation of employees, the “Australian Education Union New South Wales Teachers Federation (NSWTF) Branch” as “the other persons affected by or involved in this question, dispute or difficulty” (see r 5.1 of Industrial Relations Commission Rules 2009 (NSW) (“the Rules”)).

2. [2]

   The name of the industrial organisation specified in the notification of industrial dispute appeared in that form in many other documents in these proceedings, including the amended summons commencing the prosecution which is the subject of this judgment and dispute orders made by the Commission which, in turn, were the foundation for the prosecution. However, as will become apparent from the later discussion about registration of that industrial organisation in 2015, the name of the industrial organisation of employees registered under Ch 5 of the Act would appear to be, in fact, the Australian Education Union New South Wales Teachers Federation Branch. I shall refer to the industrial organisation throughout this judgment as the Federation.

3. [3]

   The question, dispute or difficulty notified, in substance, was a dispute between the parties as to the terms of a new award to replace the Crown Employees (Teachers in Schools and related employees) Salaries and Condition’s Award 2020 (“the award”), which reached the end of its nominal term on the 31 December 2021 (see s 16 of the Act). The notifier advised that the parties were, notwithstanding various meetings between them, unable to reach an agreement as to a new award with respect to claims advanced by the Federation (those claims were set out in a letter dated 14 September 2021 to Ms Eyvette Cachir, Chief People Officer of the Prosecutor). The notification referred to the stoppage of work in some schools regarding the Federation’s claims and an anticipation of “further strike actions”. Urgent assistance of the Commission was sought by the Prosecutor.

4. [4]

   The Prosecutor had earlier notified, on 12 October 2021, the existence of an industrial dispute (“the award dispute”). The Federation was named as a person affected by or involved in the “question, dispute or difficulty”. That notification referred to the negotiations for a new award proposed by the Prosecutor and sought that the Commission “bring the parties together for the purpose of discussion the New Award”; a commonplace procedure where negotiators for a new award encountered some difficulty.

5. [5]

   Commissioner Webster undertook conciliation conferences in the award dispute on 21 and 28 October and 22 November 2021. She issued a certificate of attempted conciliation on 22 November 2021. The award dispute was then scheduled for arbitration before a Full Bench of the Commission on 9 to 13 and 18 to 20 May 2022 (it may be noted that the Commission made orders concerning proposals for an interim order on 22 November 2021).

6. [6]

   On 24 November 2021, the Prosecutor filed an application for an interim award for an increase of 2.5% in salary and salary related costs to teachers and related employees from the first pay period following 1 January 2022 to remain in place for a period of 8 months, pending determination by a Full Bench of the Commission of the arbitration which had been set down.

7. [7]

   On 26 November 2021, the industrial dispute was listed for conciliation in the Commission before Commissioner O’Sullivan. This was a mandatory step in dealing with the dispute (see s 133 of the Act). It was common ground that Commissioner O’Sullivan issued, on that day, a certificate of attempted conciliation pursuant to s 135(5) of the Act (“the Certificate”), although the Certificate was not itself in evidence.

8. [8]

   In the afternoon of 26 November 2021, the Commission preceded to arbitration of the industrial dispute. After hearing the submissions of the Prosecutor and the Federation, Commissioner O’Sullivan decided not to make dispute orders, as sought by the Prosecutor, but instead issued a recommendation in the following terms:

9. [9]

   Commissioner O’Sullivan also directed the Federation to inform the Prosecutor and the Commission of any resolution of the Federation’s State Council concerning the subject matter of the dispute.

10. [10]

    On 27 November 2021, the State Council of the Federation met and directed all its members to strike for 24 hours on Tuesday 7 December 2021

11. [11]

    On 28 November 2021, the Prosecutor sought an urgent listing of the dispute to renew her application for the dispute orders.

12. [12]

    On 29 November 2021, the industrial dispute came before Commissioner O’Sullivan for further arbitration. After hearing from the Prosecutor and the Federation, the Commissioner made orders and directions in a document executed by the Commissioner bearing the heading “Order”. The order consisted of orders and directions made pursuant to ss 136(1)(a) and 137(1)(a) respectively as follows:

13. [13]

    Reasons for the decision to make the orders have not issued. The transcript of the proceedings concerning the industrial dispute was not placed in evidence before the Court as apparently there were some difficulties with transcription and the record was patchy.

14. [14]

    The orders made under s 137(1)(a) shall hereafter be described as “the dispute orders” and the directions made under s 136(1)(a) shall hereafter be referred to as “the directions”. The order so designated shall be described as such and the particular components of it (being orders and directions) shall be described by the alphabetical and numerical designation given in the order such as Order A1 or Direction B1.

15. [15]

    On 30 November 2021, the Federation issued a Member Alert to its members, which stated, inter alia, “We cannot be deterred” and “We must come together as one on Tuesday 7 December and send the Government a message they can’t ignore”.

16. [16]

    The Federation did not take steps by 4pm on 30 November 2021 to issue a public statement which retracted and revoked its:

    1. (1)

       direction to members to strike for 24 hours on 7 December 2021;

    2. (2)

       its call on members from Greater Sydney, Newcastle, The Central Coast, Wollongong, the Southern Highlands and the Blue Mountains to rally in Macquarie St, Sydney and for all other members to rally at designated regional centres across the state on 7 December 2021; and

    3. (3)

       its call on officers, councillors, association executive, fed reps, Women's contacts and Fair Work Commission (“FWC”) members to mobilise the membership.

17. [17]

    The Federation did not take steps by 4pm on 30 November 2021 to:

    1. (1)

       remove any reference to the 24-hour strike to occur on 7 December 2021 from its website or any documents linked to its website including the document titled ‘Why we must take industrial action over salaries and workloads" dated 27 November 2021 and the media release titled "Teachers to strike over workload, salaries, and shortages" dated 27 November 2021;

    2. (2)

       publish in a prominent position on its website and the morethanthanks.com.au website, the Federation's Facebook and Twitter pages, Order A1 and a direction to members that they comply with those orders and not take industrial action during school hours; and

    3. (3)

       take all reasonable steps to send by email and mobile telephone message to all Federation members employed by the Teaching Service, a link to Order A1 and a direction to comply with those orders and not take industrial action during school hours.

18. [18]

    On 2 December 2021, the Prosecutor filed an application for a new three-year award to be known as the Crown Employees (Teachers in Schools and Related Employees) Salaries and Conditions Award 2022: Case No. 2021/00290044 (“the new award”) which, if granted, would increase salaries by 2.5% comprising of an increase of 2.04% in salaries and 0.5% to the Superannuation Guarantee Contribution in each year of the new award.

19. [19]

    On 7 December 2021, a 24 hour strike and multiple rallies occurred across the State of New South Wales, organised by the Federation. There were 43,809 teachers who participated in the strike, which represented 67.08% of the teaching service.

20. [20]

    Approximately 550,0000 students, which equates to 86% of public-school students across the State were absent as a result of the strike action.

21. [21]

    The strike was part of the Federation’s “morethanthanks” campaign, which supports the Federation’s claim for:

    1. (1)

       minimum salary increases of 5% per annum with an additional 2.5% per annum to further recognise and reward experience and leadership. It was proposed dual qualified school counsellors and Senior Psychologists, Education (“SPE”) be paid at a new rate pegged at head teacher/assistant principal and deputy principal salary rates respectively.

    2. (2)

       minimum two hours per week additional release from face-to-face teaching for primary and schools for specific purposes teachers, along with a reduction of two hours per week in the current maximum face-to-face teaching loads for all secondary teachers (including head teachers and deputy principals). “Non face-to-face” teaching time for primary executive staff was claimed to match that of secondary executive staff and appropriate adjustments were to be made for teaching principals.

22. [22]

    The “additional 2.5 per cent per annum to further recognise and reward experience and leadership” in the Federation’s claim was to be applied to teachers at Band 2.3 (representing the top of the teacher salary scale), Band 3 (Highly Accomplished/Lead), teachers in school based and non-school based promotions positions and Principals.

23. [23]

    The “morethanthanks” campaign shall herein after be described in that way or as “the Federation’s claim”.

24. [24]

    I will return to the statutory scheme momentarily, but broad observations may be made at this juncture as to the regulatory framework for the resolution of claims for new awards and improved salaries and conditions and the nature of the present proceedings.

25. [25]

    The power of the Commission to entertain the application for a new award may arise by virtue of the application to the Commission or alternatively it may arise in the course of an arbitration by the Commission under Ch 3 of the Act to resolve an industrial dispute (see respectively s 11(1) and s 136(1)(b) of the Act).

26. [26]

    The Commission may make an award in accordance with the Act setting out fair and reasonable conditions of employment for employees (s 10). However, the effect of s 146C(7) of the Act is that the award making powers of the Commission contained in s 10 are constrained by s 146C and any policy is declared in a regulation which the commission is required to give effect to: The Public Service Association and Professional Officers’ Association Amalgamated (NSW) v Director of Public Employment (2012) 250 CLR 343; [2012] HCA 58 at [17] and [58]. Such a regulation was promulgated as the Industrial Relations (Public Sector Conditions of Employment) Regulation 2014 (“the Regulation”).

27. [27]

    Clause 6 of the Regulation, declares a policy for the purposes of s 146C(1) of the Act. It prohibits any awarded increase from increasing employee related costs by more than 2.5% per annum. Employee related costs are defined in cl 8 of the Regulation. Those matters need not be covered by an award: Secretary of the Treasury v Public Service Association and Professional Officers’ Association Amalgamated Union of NSW (2014) 89 NSWLR 688; [2014] NSWCA 138 (“Secretary of the Treasury”) at [37].

28. [28]

    Clause 6(1)(b) of the Regulation permits awards which increase employee related costs by more than 2.5% if sufficient employee related cost savings have been achieved, which fully offset the increased employee related costs, whether such savings are made before or after such award was made: Secretary of the Treasury at [39].

29. [29]

    Based upon those considerations the Prosecutor submitted that the Federation’s wage claim is not wholly outside the jurisdiction of the Commission. That proposition may not be gainsaid, but, in the light of the provisions of s 146C of the Act and the policy promulgated by the Regulation as to the Commission’s power to grant the Federation’s claims (if, in fact, the Federation made an application in terms of some or all its earlier stated claims) or, for that matter, the Commission’s power to grant any application by the employer, beyond an increase in employee related costs of 2.5% per annum, is highly circumscribed.

THE PRESENT PROCEEDINGS

1. [30]

   By an amended summons filed on 9 December 2021 (“the amended summons”), the Prosecutor sought, inter alia, the imposition of a monetary penalty in accordance with ss 139(3)(e) and 139(4) of the Act “as the Court thinks appropriate in all the circumstances”. In written submissions, the Prosecutor sought a penalty in the amount of $150,000 to $175,000 be imposed on the Federation.

2. [31]

   The Prosecutor alleged six contraventions in the amended summons. Omitting the particulars of the alleged contraventions, but using the alphabetical ordering system in the summons, they were expressed as follows:

   1. (1)

      (E) Failed to publish orders and directions on Federation Website, Facebook, Twitter and "morethanthanks" website (contravention of Order A3(c))

3. [32]

   The alleged contravention will be referred to in this judgment either by reference to their alphabetical descriptor, such as Contravention A or by their ordering appearing in the summons, such as the first contravention.

4. [33]

   Given one of the issues in these proceedings (see issue (b) below), it is necessary to set out the particulars for the alleged contravention of Orders A1 and A4 (referred to as the first nominated contravention above). Those particulars are as follows:

ISSUES

1. [34]

   Putting aside for present purposes considerations that may ordinarily arise in the context of sentencing for a contravention of a dispute order (or direction made under s 136(1)(a)), the following issues in the proceedings (as well as a concession) were distinctly identified by Mr S Crawshaw SC who appeared for the Federation as follows (converted to the form used in this judgment):

   1. (1)

      Order A1 was invalid and therefore that orders A2, A3 and A4, which are ancillary and/or facilitative to Order A1, are also invalid.

   2. (2)

      Alternatively, in the event that Order A1 is valid, the Federation admits that the Order was contravened.

   3. (3)

      Orders A2, A3 and A4 were ancillary and/or facilitative to Suborder A1 and contraventions of Orders A1, A2, A3 and A4 are part of the same course of conduct. Assuming that the Prosecutor can establish contraventions on eight days, the maximum penalty available for these contraventions against the Federation, as a first time contravener, is $45,000.

   4. (4)

      If, contrary to (iii), the Court determines not to follow the analysis in Australian Workers’ Union (NSW) v Bluescope Steel (AIS) Pty Ltd [2006] NSWIRComm 71 (“Bluescope”) and treats borders A2 and A3 as creating separate and distinct obligations, Suborders A2 and A3 are invalid.

   5. (5)

      In the alternative to (2) and (4), if orders A2 and A3 were valid and created separate and distinct obligations, they were capable of being contravened only once, by the Federation not taking the steps they directed by 30 November 2021. Presuming the orders A2 and A3 are separate and distinct as between themselves and that the prosecutor can establish contraventions on eight days, the maximum penalty available against the Federation, as a first time contravener, is $65,000.

   6. (6)

      In addition, no conduct is particularised in the amended summons as having occurred in breach of the Order on 4 and 5 December 2021. Any suggestion that the Court should order that penalties be imposed for contraventions on these days must be rejected and the contraventions can only have occurred over six days. Therefore, the maximum penalty available under (2) above is $35,000 and the maximum penalty available under (5) above is $55,000.

2. [35]

   The Prosecutor identified three broader issues which were encompassed in the Federation’s list of issues (Contravention A being admitted subject to questions of validity):

   1. (1)

      Were the orders validly made?

   2. (2)

      Should the contraventions by the Federation be properly characterised as six separate contraventions (the Prosecutor also advanced an alternative contention that there were three groups of contraventions) or, as the Federation contended, in the case of Orders A2 and A3, ancillary or facilitative orders forming part of a single exercise of power under s 137(1) of the Act (with Order A1) or there being a single incursion into unlawful conduct “with all contraventions arising from the same or a single course of conduct”?

   3. (3)

      The appropriate penalty having regard to applicable sentencing principles including the applicable maximum penalty for any contraventions for the purpose of s 139(4) of the Act (in that respect whether s 139(4)(a) or (b) applied).

3. [36]

   The Court will address the first and second of those broader issues after considering the scheme of the Act and relevant sentencing principles under which topic the third issue of the applicable maximum penalty for the offences will be addressed.

Statutory construction

1. [37]

   The Court will consider various questions raised in these proceedings involving questions of statutory interpretation including the abovementioned issue. In that respect, I will adopt the statement of principles set out in Director of Public Prosecutions v Zheng [2021] NSWSC 131 at [37]-[38] which is in the following terms:

2. [38]

   Thus, and stated shortly, and without depreciation of those statements of principle, the correct approach to the construction of a statutory provision must start and end with the statutory text, considered in context, and by reference to the purpose of the provision whether stated expressly in the statute or by implication.

The Scheme

1. [39]

   Section 3 sets out the objects of the Act. It provides as follows:

2. [40]

   Section 6 contains a definition of “industrial matters”. It defines industrial matters as “matters or things affecting or relating to work done or to be done in any industry, or the privileges, rights, duties or obligations of employers or employees in any industry”.

3. [41]

   Part 1 of Ch 2 deals with awards. As mentioned, s 10 provides that awards made by the Commission are to set “fair and reasonable conditions of employment”. Section 14 requires awards to contain dispute resolution procedures, which must include procedures for the involvement of industrial organisations. An industrial organisation is defined by the Dictionary to the Act to include an “industrial organisation of employees” registered under Ch 5 of the Act. The Federation is such an organisation.

4. [42]

   Chapter 3 deals with industrial disputes. The Dictionary to the Act defines “industrial dispute” in the following terms:

5. [43]

   Part 1 of Ch 3 deals with conciliation and arbitration of industrial disputes. Section 130(1)(a) empowers an industrial organisation of employers or employees to notify the Commission of a dispute. In this case, the Prosecutor was an employer who is or is likely to be affected by the dispute and had standing to and did notify the existence of a dispute under s 130(1)(b). The Prosecutor used Form 4 to notify the existence of a dispute but it may have done so in other written forms such as letters or emails or orally provided written confirmation was given (see r 5.3 of the Rules). The Federation was identified as a person affected by or involved in the industrial dispute in the relevant part of the form.

6. [44]

   Section 132 provides for compulsory conferences for the purpose of resolving a dispute. Section 133 provides that the Commission must first attempt to resolve the dispute by “conciliation”. The Act does not define “conciliation”. Section 134 confers certain powers on the Commission to facilitate the conciliation process.

7. [45]

   Sections 135 and 136 deal with the arbitration process which occurs after an attempted conciliation. They are in the following terms:

8. [46]

   Section 135(2) provides that the Commission may not proceed to arbitration until a certificate that reasonable attempts have been made to “resolve the industrial dispute by conciliation” has been issued. As earlier mentioned, the Certificate was issued with respect to the industrial dispute under which the Commission undertook arbitral proceedings and therein made the dispute orders and directions.

9. [47]

   Whilst the Certificate is not before the Court, the relevant Form (Form 50) provides that the member certify that reasonable attempts have been made to resolve the industrial dispute by conciliation and provides that, if necessary, the certificate may set out relevant details of the attempted conciliation including, by example, the “conduct of the parties”.

10. [48]

    Having regards to the issues raised by the Federation as to the validity of the orders, the following additional aspects of s 135 should be mentioned:

    1. (1)

       The mechanism of the issuing of a certificate ensures that reasonable attempts have been made to resolve the industrial dispute by conciliation (see s 135(2) and (6)) and that there is a clear distinction drawn between conciliation and arbitration (see ss 135 (1), (2), (3), (8) and (9)).

    2. (2)

       The determination to issue a certificate lies in the discretion of the Commission. The exercise of that discretion is guided by what the Commission considers constitutes “reasonable attempts”. That assessment will undoubtedly be informed by issues such as the complexity of the industrial dispute and the effect of any actual or anticipated industrial action on “the parties” (see s 135(4)) and the public generally (s 135(4)).

    3. (3)

       An application for a certificate may be made by any person authorised to notify the Commission of a dispute which includes any entity referred to in s 135(6).

    4. (4)

       Copies of the certificate are to be issued to “the parties” and the “Chief Commissioner”.

11. [49]

    The Federation submitted the arbitration of the industrial dispute which was the subject of conciliation and the following issue of the Certificate is between one or more parties and the power to arbitrate is directed to resolving the dispute between those particular parties. It was submitted if a person or persons is not issued with a certificate under s 135 of the Act, they are not and cannot be parties to the industrial dispute.

12. [50]

    Reliance was placed, in that respect, upon the provisions of s 134 (and in particular s 134(2) which permits the Commission in conciliation proceedings to make a recommendation or give a direction to the parties to an industrial dispute), s 135 (and in particular the provisions of s 135(8) which requires that any certificate of attempted conciliation is to be provided to “the parties” to the dispute) and s 136(1)(a) which provides that the Commission may make recommendations or directions in arbitral proceedings directed to “the parties” to the industrial dispute. It was submitted that those parties are those which are provided a copy of the certificate of attempted conciliation and who have participated or been given the opportunity to participate in conciliation of the dispute.

13. [51]

    The Dictionary of the Act does not define a “party” or “parties” but rather provides a definition of “a party to an industrial instrument” as including a successor of a party to the instrument. The meaning of the expression within Pts 1 and 2 of Ch 3 of the Act is, therefore, a matter of statutory construction.

14. [52]

    The mechanisms provided by Pt 1 to “notify” a dispute do not constitute, in my view, a process akin to strictly inter parte proceedings between a plaintiff and defendant. That consideration may be firstly illustrated by reference to some examples of the processes of this Court.

15. [53]

    In the Supreme Court Act 1970, it defined “party” under s 19(1) in the following terms:

16. [54]

    The definition of “party” was omitted from s 19(1) in the Supreme Court Act 1970 in an amendment in August 2015, as a consequence of the commencement of the Civil Procedure Act 2005 and the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”).

17. [55]

    In the Civil Procedure Act 2005, a “party” or “parties” is not defined, however, it is referenced to in the context of a “party to the proceedings” and is actively involved in the proceedings. Under the Civil Procedure Act 2005, the Court can, inter alia, give orders and directions to a “party”. The Dictionary of the Civil Procedure Act also defines “plaintiff” and “defendant” in s 3(1), in the following terms:

18. [56]

    The UCPR does not provide a definition of “party” or “parties”, however, provides in the Dictionary a definition of an “active party” and “opposite party”. Those terms are extracted below:

19. [57]

    As mentioned, Pt 1 of Ch 3 of the Act is concerned with the conciliation and arbitration of industrial disputes. The process of engaging the Commission to deal with such disputes through a notification given under s 130(1) reflects the need to provide for agility and flexibility in the dispute resolution unencumbered by “technicalities and legal forms” (see s 162 of the Act).

20. [58]

    Any organisation of employees or employers or State Peak Council may notify the existence of an industrial dispute. In this case, the notification was provided by the employer pursuant to s 130(1)(b). The ordinary meaning of notifying is, “make known, announce, report, or inform, give notice to” (Shorter Oxford Dictionary). The Macquarie Dictionary refers to giving notice or informing of something.

21. [59]

    Those meanings sit comfortably within the context in which the expression is used in s 130(1), that is, to provide notice or advice to the Commission (formally or informally) so that it may act to resolve the industrial dispute, a process which involves consideration of the public interest consistently with the objectives of the Act (see ss 3(g) and 146(2)(a)).

22. [60]

    Unlike the provisions of Ch 2 Pt 1 Div 1, there is not a process by which an application must be made to commence dispute proceedings or a standing requirement such that an industrial organisation of employees or employers must satisfy the Commission that it or any one or more of its members has a “sufficient interest” in the proposed award (see by contrast s 11(4)). An employer may notify a dispute if the employer “is or is likely to be affected by the dispute” (see s 130(1)(b)) but an industrial organisation has no such limitation applied to its standing to notify an industrial dispute. Any industrial organisation may apply for the issuing of a certificate of attempted conciliation, irrespective of the subject of the industrial dispute (the only requirement is an entity be “authorised” to notify the Commission of an industrial dispute (see s 135(5)). The expression “authorised” connotes standing to notify and thereby relevantly connects to the provisions of s 130(1).

23. [61]

    The judgment of the Full Bench of the Industrial Relations Commission of NSW in The Director-General, NSW Department of Health, in respect of the Hunter New England Area Health Service and Australian Medical Association (NSW) [2008] NSWIRComm 112 (per Walton VP, Schmidt and Staff JJ) (“Hunter New England AHS”) is instructive in this respect.

24. [62]

    That matter concerned an appeal from the dismissal of a motion by which it was sought to establish that the Australian Medical Association (NSW) Limited (“AMA”) a registered organisation of employers, could not notify an industrial dispute under s 130 of the Act, in relation to its members in there capacity as employees or represent those entities.

25. [63]

    The Full Bench of the Commission made several observations regarding the statutory scheme for dispute resolution under the Act in that context.

26. [64]

    In considering whether AMA could notify an industrial dispute to the Commission, the Full Bench observed (at [14]-[20]):

27. [65]

    Further, the Full Bench observed as to the capacity of the AMA to participate in proceedings (at [37]-][39]):

28. [66]

    As to the operation of ss 135 and 136 of the Act, the Full Bench stated (at [41]-[44]):

29. [67]

    Provisions of Pt 1 of Ch 3 of the Act, reflect the broader public policy considerations underpinning the resolution of industrial disputes as emphasised by the object in s 3(g) of the Act, namely, to provide for the resolution of industrial disputes by conciliation and if necessary by arbitration in a prompt and fair manner with a minimum of legal technicality. The Commission is required, in determining whether a certificate of attempted conciliation is issued, to consider the effect of any industrial action in connection with the industrial dispute not only upon the parties but the public generally (see s 135(4)). As mentioned, s 146(2) directs the Commission to take into account the public interest in the exercise of its function to resolve industrial disputes (see s 146(1)(b) and (2)).

30. [68]

    Further, Ch 3 of the Act emphasises the pivotal role of industrial organisations in the resolution of disputes. As mentioned, s 130 of the Act provides that an industrial organisation of employees or a state peak council may notify disputes. One of the Act’s objects is to encourage participation in industrial relations by representative bodies of employees and employers and to encourage the responsible management of democratic control of those bodies (see s 3(d)).

31. [69]

    This discussion serves to establish the following propositions:

    1. (1)

       The notification of a dispute or the listing of parties affected on a Form 4 does not serve to ultimately confine the parties to an industrial dispute. It is not akin to an originating process in this or other courts which serves to define parties to proceedings (where the parties may be enlarged only by an approved application to join them r 6.27 of the UCPR).

    2. (2)

       Neither the notifying interest or the affected persons or entities in the industrial dispute process need to establish standing beyond the broad requirements of s 130(1). The Commission is empowered to identify the parties to an industrial dispute during the course of dealing with proceedings, as to the same, which may be wider than the parties mentioned in the notification.

    3. (3)

       A certificate of attempted conciliation may be issued at the behest of any interest authorised to notify the existence of an industrial dispute which may or may not be notifying intent. That same classes or interests may seek orders in arbitration proceedings (see s 136(2)).

    4. (4)

       Thus, as found in Hunter New England AHS, arbitral proceedings under Pt 3 of the Act, may include parties not the subject of the dispute notification or parties to the dispute as such. The proposition advanced by the Federation that only a person issued with a certificate of attempted conciliation may be parties to the arbitration as to an industrial dispute may not be accepted.

32. [70]

    Similarly, industrial organisations may make an application to make or vary an award (s 11(2) and s 17(1) and (3) as will be discussed below).

33. [71]

    Sections 137-139 are set out in Pt 2 to Ch 3. Part 2 is entitled “Dispute Orders”. As a heading to a Part of the Act, the heading of Pt 2 is taken to be part of the Act (s 35 Interpretation Act 1984 (NSW)).

34. [72]

    Sections 137 and 138 provide as follows:

35. [73]

    The Federation correctly submitted that whilst the permissive word “may” appears in the preamble to s 137(1), the proper construction of that provision is that the types of orders described in s 137(1) are exhaustive when dealing with an industrial dispute, particularly given that the word “may” is used in s 137(1)(a),(b)(c) and (d), in a manner only consistent with the confinement of the order to a particular class. Again, s 138(1) does not employ the word “may” in a permissive sense. The provision deals with a defined and an exclusive class as illustrated by the use of the word “only”.

36. [74]

    Section 137(1)(a) relevantly refers to the power of the Commission to order “a person to cease or refrain from industrial action”.

37. [75]

    Section 138 deals with the making of dispute orders. It provides at s 138(1) that a dispute order may be made against, relevantly for present purposes, parties or likely parties to the industrial dispute or members, officers, or employees of an industrial organisation “that is such a party or likely party”. Section 138(2) dictates that a dispute order must clearly identify the persons against whom the order is made and who are to be bound by the order and state the times within which the order is to be complied with or remain in force. I also accept the submission by the Federation that the range of persons to whom orders can be directed is specified in s 138(1), particularly having regard to s 138(2)(a) which requires a dispute order must identify “the persons” against whom the order is made and who are bound by the order.

38. [76]

    Industrial action is defined in the Dictionary to the Act to mean:

39. [77]

    By virtue of ss 130(1)(a), 138(1)(a) and (b) and 139(3)(e) and 139(4) of the Act, dispute orders can be made against an industrial organisation: Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales v Industrial Relations Secretary (2018) 96 NSWLR 762; [2018] NSWCA 39 (“Industrial Relations Secretary”) at [117] (per Bathurst CJ with whom Gleeson and Simpson JJ Agreed).

40. [78]

    The meaning of the words “cease or refrain from taking industrial action” in s 137(1)(a) was discussed in Industrial Relations Secretary as follows (at [115] and [116]):

41. [79]

    It may be said that meaning of the expression “a strike” is common place.

42. [80]

    Dixon J in McKernan v Fraser (1931) 46 CLR 343; [1931] HCA 54 at [361] defined the ordinary meaning of strike as follows:

43. [81]

    However, the Court of Appeal in Industrial Relations Secretary found that the power in s 137(1)(a) must be read to extend to the Commission a power to make orders that an industrial organisation cease or refrain from convincing its member to take industrial action. There is nothing in the provision itself which provides that the order will only be contravened if the threatened industrial action takes place. Hence, the Commission may direct an industrial organisation to refrain from directing its members to engage in industrial action or refraining from organising industrial action, irrespective of whether a strike has or has not occurred.

44. [82]

    The Federation submitted that the conduct listed in (a) to (c) in the definition of industrial action in the Dictionary, expand the definition of that concept to include other species of actions by employees. Bathurst CJ in Industrial Relations Secretary dealt with the operation of those provisions as follows (at [118] and [119]):

45. [83]

    Having regard to the earlier discussion as to the operation of Pt 3 of the Act, reference may also be made to the observations of the Chief Justice at [122]:

46. [84]

    As mentioned, his Honour ultimately held that orders under s 137(1)(a) extended to the Commission ordering of industrial action to cease or refrain from causing its members to take industrial action. Some of the passages of the Chief Justice’s reasoning, in that respect, are relevant to later discussion of issues of validity. In paras [124]-[129] the Chief Justice stated:

47. [85]

    The Federation submitted that like all statutory powers, ss 137 and 138 are conditioned by the implied requirement that persons to whom orders may be directed be accorded procedural fairness before orders directing them to do and not do certain things (and thus be exposed to a civil penalty) are made: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 at [59] (Gaudron and Gummow JJ); Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40 at [55]-[56] (Kiefel, Bell and Keane JJ); MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 at [4] (Kiefel CJ, Gageler, Keane and Gleeson JJ).That proposition may readily be accepted based on the aforementioned authorities.

48. [86]

    The Federation went further to submit that whilst s 138 permits the making of orders directed at persons who are either not parties to the dispute (as is inherent by the reference to likely parties to the dispute), as well as members of industrial organisation, the valid exercise of the power to make such orders requires non-parties to the proceedings before the Commission be afforded procedural fairness before orders are made with to the effect of regulating their future conduct on pain of civil penalty. I will return to that submission in dealing with the questions of validity below.

49. [87]

    Section 139 of the Act confers powers on this Court to impose penalties for contraventions of dispute orders. Relevantly, the section provides as follows:

50. [88]

    Section 139(1) confers standing to make an application to the person who applies for the order and any other person who is authorised to apply for the order. The Federation accepted that the Prosecutor had standing to commence these proceedings.

51. [89]

    Section 139(3)(e) provides that the Court may impose a penalty on an industrial organisation as provided by s 139(4). (It may be noted that this section does not confer power on the Court to impose pecuniary penalties on employees). Section 139(4) stipulates the maximum penalties which may be imposed.

52. [90]

    The Federation acknowledged that the Commission was able to order a person to cease or refrain from industrial action but emphasised “the right to strike”, relying in that respect, upon Article 8(1)(d) of the International Covenant on Economic, Social and Cultural Rights (“the Covenant”). The Federation also recognised that the existence of a system of industrial relations in New South Wales incorporating the arbitration of issues concerning, inter alia, salaries but contended those powers were no longer involved “unconstrained arbitration”, presumably meaning that the Federation no longer considered that impediment to a right to strike available under the NSW industrial laws was just, fair or appropriate because of the curtailing of the counter balancing of rights, visa via, the conferral of wide powers under the Commission to arbitrate for the making of awards or in the resolution of industrial disputes.

53. [91]

    The Covenant may be described as an international bill of human rights and derives from a multilateral treaty of long standing adopted by a very significant number of nation states including Australia (in 1976). However, treaties are not directly incorporated into municipal law until they have been incorporated by statute: Kioa v West (1985) 159 CLR 550; [1985] HCA 81 (“Kioa”) at [570]-[571]; Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57 at [305]; Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273; [1995] HCA 20. Although international conventions may indirectly impact upon domestic law (see, for example, the judgment of Brennan J in Mabo v Queensland (No 2) (1992) 175 CLR 1; [1992] HCA 23 at [4]).

54. [92]

    The Prosecutor submitted that Article 8(1) of the Covenant cannot assist the Federation, as by its terms, it only protects the right to strike “provided it is exercised in conformity with the laws of the particular country”. Expressed thus, the proposition may be accepted: Victoria v Commonwealth (1996) 187 CLR 416; [1996] HCA 56 at [545]-[546] (albeit in the context of the Industrial Relations Reform Act 1993 (Cth)).

55. [93]

    The ultimate implications of the Covenant (such as what the right to strike entails and what action a State party is required to take) whether evaluated alone or in conjunction with other International Covenants such as the Industrial Labour Organisation (“ILO”) Conventions (the Freedom of Association and the Protection of the Right to Organise Convention 1948 and the Right to Organise and Collective Bargaining Convention 1949) are beyond the scope of the arguments advanced by the parties in this matter and are attended, in any event, by some controversy, even if aspects of the treaties or conventions have been introduced into municipal law. (Findings have been made by ILO Committees with respect to some Commonwealth Industrial legislation - see, for example, Case No 1511 (Australia) 277 the Report of the Committee on Freedom of Association concerning pilots).

56. [94]

    What is important to bear in mind in the present context, however, is the Act, and predecessor industrial legislation in this State have made provision of mandatory conciliation and arbitration for the enforcement of awards and determinations (orders) of the Commission under which industrial action may be curtailed by orders of the Commission (at least under modern forms of the Act: see Industrial Relations Secretary at [57]-[87]) conformably with the regulation of industrial relations by such a scheme.

57. [95]

    In the judgment of the Industrial Court in Director General, NSW Department of Education and Training and the Managing Director of TAFE v NSW Teachers Federation [2010] NSWIRComm 77 (“Teachers Federation 2010 NSWIRC 77”) the following apposite observations were made at [14]-[15]:

58. [96]

    The constraint of the scope of arbitration to which the Federation referred, is a matter for policy of governments as may be reflected in legislation or other forms of regulation from time to time.

59. [97]

    There was a contest in these proceedings as to the maximum penalty for contravention of dispute orders.

60. [98]

    It was common ground that the Federation had not previously been the subject of contraventions in and of itself. It was submitted by the Federation that, accordingly, the provisions of s 139(4)(a) applied.

61. [99]

    However, the Prosecutor contended that the Court should take into account the predecessor of the Federation, namely, the NSW Teachers Federation (“the Teachers Federation”). The Prosecutor contended that the two organisations had a history of wholly integrated operation and as a matter of substance the Federation was an emanation of that previous entity and that accordingly the higher penalty applied under the provisions of s 139(4)(b).

62. [100]

    That controversy derived from the fact that, in 2015, the Teachers Federation ceased to exist as a registered organisation due to the cancellation of its registration and, in joined proceedings, the Federation was subsequently registered, upon its application, under Ch 5 of the Act (“the 2015 proceedings”).

63. [101]

    I will return to those issues after examination of the provisions of Chs 4 and 5 of the Act.

64. [102]

    Part 1 of Ch 4 of the Act deals with the establishment and functions of the Commission. Section 146 provides as follows:

65. [103]

    Chapter 5 of the Act is entitled “Industrial Organisations”. Part 3 of the Chapter deals with the registration of organisations. Division 1 of Pt 3 specifies the organisations capable of applying for registration and the criteria for registration.

66. [104]

    Section 217 deals with organisations capable of applying for registration and is in the following terms:

67. [105]

    Section 218 deals with criteria with registration. Section 218(1) is in the following terms:

68. [106]

    Section 221 deals with the registration of industrial organisations. Section 221(1) provides as follows:

69. [107]

    Section 222 deals with the incorporation of State organisations on registration. That provision is as follows:

70. [108]

    Division 1 of Pt 3 concerns the standing to make an application for registration, the criteria for registration, the process for and effect of registration (for a State registered organisation). The provisions concern “organisations”. Upon registration, by the making of a record upon a register established by the Industrial Registrar, the organisation becomes an “industrial organisation” (s 221(2)). The Industrial Organisation must issue a certificate of registration to each organisation so registered. There may be registered three classes of organisation as specified in s 217(1). Two of those: a State organisation and a federal organisation are relevant in the present context.

71. [109]

    A State organisation is the subject of s 217(1)(a) and, where registered, is an incorporated entity for the purposes of s 222 and are regulated under Pt 4 of Ch 5 (s 233 provides that Pt 4 applies to industrial organisations that are State organisations incorporated under the Act). As I will discuss, the Teachers Federation was registered as a State organisation.

72. [110]

    It is most likely that the Teachers Federation was caught by the provisions of s 223(1). Section 223(1) provides:

73. [111]

    Section 217(1)(b) concerns a federally registered organisation or a branch of that organisation. A federally registered organisation means an organisation registered under the Fair Work (Registered Organisations Act) 2009 (Cth) (“RO Act”). The registration of that organisation is sought in s 217(2). As I will discuss, in my view, the evidence in these proceedings would suggest the Federation was registered as a federal organisation.

74. [112]

    It follows that, whilst there is a singular entity of “industrial organisation” registered under Ch 5 of the Act (defined in the Dictionary of the Act to mean an industrial organisation of employees or an industrial organisation of employers), there is a distinction between an industrial organisation registered as a State organisation and those registered as a federal organisation.

75. [113]

    The powers to register an industrial organisation under the Act is conferred on the Industrial Registrar but may, on referral or removal, be exercised by the Commission (s 195).

76. [114]

    Division 2 of Ch 5 deals with the cancellation of registration. Section 225(3) provides:

77. [115]

    Section 226(f) provides:

78. [116]

    Section 227(1) provides:

79. [117]

    Section 228 of the Act provides:

80. [118]

    Alternatives to cancellation of registration are provided by ss 229 and 230 of the Act.

81. [119]

    Under the current provisions of the Act, the power to cancel the registration of an industrial organisation is conferred on this Court (s 227(1)).

Maximum Penalty

1. [120]

   I return then to the issue of the maximum penalty for any contravention of dispute orders.

2. [121]

   The history of the registration of the Federation is relevant to the resolution of this issue, including, as it does, the construction of s 139(4). I will further set out that background before turning separately to the question of construction.

3. [122]

   The parties were able to acquire and place in evidence limited material with respect to the 2015 proceedings. However, a record of the proceedings was apparently not available. The analysis which follows is derived from the material the Prosecutor placed in evidence largely in an exhibit to the affidavit of Margaret Louise Coory affirmed 15 December 2021.

4. [123]

   There was exhibited before the Court an affidavit of John Marshall Dixon sworn on the 10 August 2015. He stated that he was the General Secretary of the Teachers Federation and the Branch Secretary of the Australian Education Union New South Wales Teachers Federation Branch (“AEU NSWTF”). Paragraphs 2 to 4 of the affidavit are extracted below:

5. [124]

   Annexed to the affidavit was a document headed “Transfer of Assets and Liabilities Agreement” (“the transfer agreement”), which outlined the recitals, operative provisions and agreement for the transfer of assets and liabilities upon the registration of the Federation under the Act.

6. [125]

   The agreement was between the Teachers Federation and a body entitled “Australian Education Union New South Wales Teachers Federation Branch” (which was given the short form employed above).

7. [126]

   The recitals of the transfer agreement stated that the Council of the Teachers Federation endorsed the registration of the AEU NSWTF under Ch 5 of the Act and the consequential deregistration of the Teachers Federation.

8. [127]

   Paragraphs 8 and 9 related to the agreement after the registration of the Federation under the Act and was in the following terms:

9. [128]

   As mentioned, the applications to give effect to the recitals of the transfer agreement were not in evidence, but Mr Dixon’s affidavit demonstrates that he had made the affidavit in support of two applications described as follows:

10. [129]

    The evidence adequately demonstrates that the Teachers Federation sought the cancellation of its registration as an industrial organisation of employees.

11. [130]

    As is demonstrated by the orders made by the Commission as set out below, the registration proceedings was brought by the entity referred to in the transfer agreement as AEU NSWTF. That organisation is, as will be discussed below, the Federation, although some further explanation as to the nature of that organisation is necessary.

12. [131]

    On 12 August 2015, the Commission made the following orders in respect to the applications.

13. [132]

    In IRC 344 of 2015:

14. [133]

    In R 85 of 2015:

15. [134]

    Thus, in 2015, the Teachers Federation sought and obtained the cancellation of its registration as an industrial organisation of employees and the Federation was registered as an industrial organisation under Ch 5 of the Act by application to that end. Pursuant to the transfer agreement, this resulted in the transfer of all assets and liabilities of members and employees of the Teachers Federation to the new entity, the Federation.

16. [135]

    Ms Coory deposed that the rules of the Federation appeared at Tab F of Exhibit MLC-1 in the proceedings. That document was entitled “Federal Branch Rules in Relation to the New South Wales Teachers Federation (NSWTF) Branch” and has an unexplained entry of “Appendix A” on the top of the first page of the document. I shall proceed as if these rules represent the current rules of the Federation, which, when made, anticipated the 2005 proceedings and their aftermath (hereinafter “the Federation rules”).

17. [136]

    The Federation rules identified the name and registered office of the Federation, that was in the following terms (rule 1 cll 2,3):

18. [137]

    The structure of the organisation was set out in rule 3(1) as follows:

19. [138]

    Under the heading “Governance”, the composition of the Branch Conference appears. Clause 7(1) was in the following terms:

20. [139]

    The powers of the Branch Conference was described in cl 8(1) as follows:

21. [140]

    Rule 12 sets out the Branch Council powers as follows:

22. [141]

    Section 8 of the rules was headed “Transitional Provisions” and outlined the transitional rule and the New South Wales Registration. Rule 70 was in the following terms:

23. [142]

    In Section 8 of those rules was the heading “New South Wales Registration” and was in the following terms:

24. [143]

    A “Search of the NSW Teachers Federation Website” (“Website search”) and the “History” page of the NSWTF Website was in evidence. It outlined the NSWTF history and the democratic structure of the Federation.

25. [144]

    The Website search bore the heading “Australian Education Union” and is extracted below:

26. [145]

    In the Financial Statements for the Federation for the year ended 31 December 2020, under “Operating Report” and the sub-heading “Review of principal activities, the results of those activities and any significant changes in the nature of those activities during the year”, the following entry appears:

27. [146]

    The Financial Statements also lists the names of “people who held position on the Committee of Management” were follows:

28. [147]

    The current and historical details for ABN 86 600 150 697 (“the ABN”) was provided to the Court.

29. [148]

    The current details for the ABN extracted on the 14 December 2021, lists the entity name as “Australian Education Union New South Wales Teachers Federation Branch” as active from 1 November 1999. The business name was listed as “New South Wales Teachers Federation” from the 29 October 2015 and the trading name “AEU(NSW)” from 3 May 2000.

30. [149]

    In the document of the historical details of the ABN which was extracted on the 14 December 2021, the “Australian Education Union (New South Wales Branch)” is shown as operating from 3 May 2000 to 22 September 2015 and the “Australian Education Union New South Wales Teachers Federation Branch” as operating from 22 September 2015 to current.

31. [150]

    It may be deduced from that evidence that, prior to the cancellation, two organisations existed and operated in New South Wales having representative interests with respect, inter alia, public school teachers: the Teachers Federation registered as an industrial organisation of employees under the Act and the AEU registered as an organisation under the RO Act, which had a branch known as the AEU NSW Branch.

32. [151]

    The arrangements of the Federal Branch to obtain registration under the Act upon the cancellation of the Federation were made in the light of a significant portion of the Teachers Federation being the subject for Federal industrial laws, namely, members of the Teachers Federation employed in TAFE.

33. [152]

    In anticipation of the 2015 proceedings (and in the light of the transfer arrangements ultimately reflected in the transfer agreement), the rules of the AEU NSW Branch were modified by a name change to that now held by the Federation (the rule has the short form “NSWTF” appearing after the words Teachers Federation but that seems only to be used as an abbreviation and does not form part of the name). There was also authority conferred upon the Branch to operate under the name Teachers Federation. Transitional rules were introduced to integrate the members, officials and employees and the assets and liabilities of the Teachers Federation into that Branch of the AEU.

34. [153]

    Overall, the rules of the AEU NSW Branch were, it would appear, reconstituted to replicate, so far as practicable, the rules of the Teachers Federation. Thereupon, the Federation sought registration under the Act after the completion of proceedings cancelling the registration of the Teachers Federation.

35. [154]

    The Court does not have in evidence the records of the Industrial Registrar regarding the registration of the Federation and, in particular, does not have the entry required on that register as to whether the registered organisation is a State, Federal or separate organisation (see s 221(1)(c)). However, as previously discussed and as discussed further below, I infer from evidence in these proceedings and, in particular, the history of the registration of the Federation, that it was registered under Ch 5 of the Act as a “federal organisation” for the purposes of s 217(1)(b) and for the purposes of engulfing in one organisation all of the members eligible to be members of the federal and State organisations in NSW. I note that the Prosecutor also seemed to accept that such a conclusion was available.

36. [155]

    Returning to the submissions of the Prosecutor as to the maximum penalty, it was submitted, as earlier mentioned, that the past offending of the Teachers Federation should be considered in determining the penalty that may be imposed under s 139(4) of the Act and that “the industrial organisation”, being the Federation, is the embodiment of the former Teachers Federation. Reliance, in this respect, was placed upon the arrangements associated with the registration of the Federation including the transfer of all the assets, liabilities, and employees to the Federation from the Teachers Federation, and that the Federation operates using the business name of the Teachers Federation. Further, the Federation's website stated that the rules of the two organisations have been harmonised and incorporated and guarantees that the financial members of the Teaches Federation would be financial members of the Federation.

37. [156]

    It was further submitted that the Federation had not indicated that the new emanation of the Teachers Federation is taking a different approach to the organisation that existed previously. Reliance was placed on the Federation’s own communications, namely, the History page of the Teachers Federation Website (an article was admitted into evidence entitled “NSW Teachers Federation More than 100 years of Teachers Unity”).

38. [157]

    It was contended that it would defeat the evident purpose of s 139(4) of the Act to “impose a higher maximum penalty on repeat offenders” if the Federation were able to rely on a legal formality “to avoid the consequences of previous actions”.

39. [158]

    The Prosecutor submitted that the Teachers Federation had previously contravened dispute orders six times and incurred a penalty between 2000 to 2012, they are as follows:

    1. (1)

       Director-General of the New South Wales Department of Education and Communities v New South Wales Teachers Federation [2012] NSWIRComm 93 (“Teachers Federation 2012 NSWIRC 93”).

    2. (2)

       Director General, Department of Education and Training v New South Wales Teachers' Federation [2000] NSWIRComm 103 (“Teachers Federation 2000 NSWIRC 103”)

    3. (3)

       Director-General, NSW Department of Education and Training v NSW Teachers Federation [2010] NSWIRComm 44 (“Teachers Federation 2010 NSWIRC 44”);

    4. (4)

       Director General, NSW Department of Education and Training and the Managing Director of TAFE v NSW Teachers Federation [2010] NSWIRComm 77 (“Teachers Federation 2010 NSWIRC 77”);

    5. (5)

       Director-General of the NSW Department of Education and Communities and Managing Director of TAFE NSW v New South Wales Teachers Federation [2012] NSWIRComm 58 (“Teachers Federation 2012 NSWIRC 58”).

    6. (6)

       Director General of Education and Communities v NSW Teachers Federation [2012] NSWIRComm 92 (“Teachers Federation 2012 NSWIRC 92”)

40. [159]

    In those circumstances, and as earlier mentioned, it was submitted by the Prosecutor that the maximum penalty for the offence in question is that prescribed by s 139(4)(b), namely, 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.

41. [160]

    The Prosecutor submitted that, in the alternative, if the Teachers Federation’s prior conduct is not relevant for the purposes of s 139(4)(b), it is still a relevant factor in the determination of the magnitude of any penalty in the Court's discretion.

42. [161]

    The Federation submitted that it has not previously been the subject of any contraventions as past contraventions were that of the Teachers Federation and not the Federation. Reliance in this respect was placed on the words of s 139(4) of the Act, namely, the words “an industrial organisation”. It was submitted that “the industrial organisation” referred to in s 139(4)(b) in this case is the Federation and not the NSWTF and that, at the time of the contraventions by the Teachers Federation, the Federation was simply not an organisation registered under Ch 5.

43. [162]

    Further, in construing the words “if a penalty has previously been imposed on the industrial organisation” in s 139(4)(b), the Federation submitted that the text of the provisions of s 139(4)(b) cannot be read in such a way to import the words “previously registered organisations that had a close connection with the industrial organisation or was an emanation of the industrial organisation”. These words do not appear on the face of the legislation.

44. [163]

    The Federation also placed reliance on the definition of “industrial organisation” in the Dictionary of the Act, and is in the following terms:

45. [164]

    It was accepted by the Federation that, the prior contraventions of the Teachers Federation can be considered in the context of the exercise of the Court’s sentencing discretion, however, it was submitted that little weight should be attached to the same, given the history over the last ten years, which has been one of no contraventions.

46. [165]

    The Federation referred to four contraventions of the Teachers Federation (out of the six earlier contraventions referred to by the Prosecutor) and made reference to the circumstances of those contraventions:

    1. (1)

       Teachers Federation 2010 NSWIRC 44, where Staff J imposed a penalty of $4,000 with respect to a contravention constituted by a 24-hour strike involving 4000 employees where the maximum penalty was $10,000;

    2. (2)

       Teachers Federation 2010 NSWIRC 77, where Marks J decided to impose a penalty of $7,000 where the maximum penalty was $10,000;

    3. (3)

       Teachers Federation 2012 NSWIRC 58, where Haylen J decided to impose penalties of $4,000 for contravention on 7 September 2011 and $2,000 for contravention on 8 September 2011 where the maximum penalty was $20,000 and $10,000 respectively;

    4. (4)

       Teachers Federation 2012 NSWIRC 93, where Boland J decided to impose a penalty of $17,500 for contravention on 27 June 2012 where the maximum penalty was $20,000.

47. [166]

    These overlap with those identified by the Prosecutor, but two relevant contraventions by the Teachers Federation: see Teachers Federation 2000 NSWIRComm 103 and Teachers Federation 2012 NSWIRComm 92. I discuss the six proceedings later in the judgment but for present purposes note these two contraventions are relevant in the exercise of the sentencing discretion. In the first, the proceedings were dismissed but only after the Industrial Court declared that no penalty was imposed notwithstanding a finding the dispute orders had been contravened. The second involved a finding that there was a contravention of a dispute order made by Cavanagh J in 2001 and a penalty imposed.

48. [167]

    The construction of s 139(4) as to maximum penalty contended for by the Federation has textual support.

49. [168]

    First, the provision fixes the maximum penalty for contravention for “an organisation” based upon whether the contravention was a first offence (s 138(4)(a)) or “a penalty had been imposed on the industrial organisation”. The word “the” before “industrial organisation” is, in a grammatical sense, a “determiner” which connects “the industrial organisation” to the reference to the words “an organisation” in the preamble to s 139(1). That correlation indicates that the intention of the legislation to confine, for the purposes of the maximum penalty, attention to the history of the industrial organisation actively the subject of the prosecution.

50. [169]

    Secondly, this analysis is supported by the definition of an industrial organisation, or in this case an industrial organisation of employees, such that the use of the words “industrial organisation” in s 139(4) means the organisation registered under Ch 5 of the Act. For the purposes of s 137(4) that is the Federation which, as is common ground, has no prior contraventions.

51. [170]

    The construction proposed by the Prosecutor is also compatible with a broader statutory context.

52. [171]

    As Mr Crawshaw correctly submitted, the Federation was not an industrial organisation under the Act at the time the prior contraventions relied upon by the Prosecutor occurred. The Teachers Federation was at the time of the contravention a State organisation which was a body corporate having a separate legal entity to the Federation; a factor which not only supports the textual analysis above but strongly points against construing the provisions of s 139(4) in the manner proposed by the Prosecutor, namely, by looking at similarities between the Teachers Federation and the Federation or the nature of transfer arrangements, between the organisations at the point of registration of the Federation.

53. [172]

    It must also be borne in mind for the purposes of s 134(4) that, irrespective of the transfer of members (assuming, in law, this may be done) and employees or officials, the Federation, upon registration under the Act and/or by its standing as a federal organisation (to which I shall return), was not a mere agent of the members of the organisation but was a principal standing in the place of its members as a representative of the class associated together in the organisation.

54. [173]

    In Regional Express Holdings Ltd v Australian Federation of Air Pilots (2017) 262 CLR 456; [2017] HCA 55 (“Regional Express Holdings”), the High Court (per Kiefel CJ, and Keane, Nettle, Gordon and Edelman JJ) held that, in the case of an industrial association registered as an organisation of employees under the RO Act, the fact that a person is eligible for membership of the association in accordance with its eligibility rules is sufficient to make the industrial association “entitled to represent the industrial interest of” the person within the meaning of s 540(6)(b)(ii) of the Fair Work Act 2009 (Cth) (“the Fair Work Act”).

55. [174]

    The High Court considered the historical context behind that ruling as follows (at [29]-[33]):

56. [175]

    The fact that the Federation was registered as a “federal organisation” does not diminish this assessment. Rather, in many respects, it adds weight to the construction proposed by the Federation.

57. [176]

    The Prosecutor contended that, for all intents and purposes, the effect of the processes approved by the Commission in 2015 was to recreate the Teachers Federation in the form of a branch of the AEU registered under the Act to which the officers and members of the Teachers Federation were transferred (as were assets). Even the business name of the Teachers Federation, it was submitted, was retained.

58. [177]

    The Prosecutor contended that, in substance, the Federation was essentially the same as its predecessors – both physically, in its premises, economically, by the transfer of its assets and culturally, in the sense of its name officers remaining the same and its perception as to its role being consistent with its own history. The State and federal organisations were effectively harmonised.

59. [178]

    Whilst that submission may have some significance for the purposes of sentencing, vis a vis, prior conduct, there is real difficulty, even aside from textual considerations, in those factual propositions (which are correct) supporting the Prosecutor’s submissions as to the construction of s 139(4).

60. [179]

    Whilst the records in evidence of the registration of the Federation in 2015 are somewhat limited, it is reasonably clear and on the evidence in these proceedings and for reasons given above, that the Federation was registered pursuant to s 217(1)(b) as a different species of organisation than its predecessor, the Teachers Federation.

61. [180]

    Further, the branch of the AEU is a distinct legal entity having entitlements and obligations under the Act by its registration under Ch 5 but also entitlements and obligations under Federal legislation.

62. [181]

    It may be observed, in that respect, that the provisions of s 222 do not apply to the Federal organisation. That is immediately explicable upon the basis that s 27 of the RO Act provides that an organisation registered under that Act is a body corporate and has perpetual succession and the provision of Pt 7 of the RO Act dealing with “Complementary registration systems” which prohibit a Branch of a Federal organisation being registered under a law of a State if the State legislation involves the branch being incorporated (s 365 of the RO Act).

63. [182]

    Part 7 of the RO Act recognises that Federal Organisations may establish Branches and, by that means, provide participation in “workplace relations systems” (s 365(1)) of the RO Act.

64. [183]

    Section 365(2) of the RO Act provides as follows:

65. [184]

    Some little more may be said about the effect of the transfer process, and, in particular, whether it followed that the transference process from the Teachers Federation to the Federation resulted in the Federation maintaining the same autonomy it enjoyed as a State industrial organisation.

66. [185]

    Section 364 of the RO Act provides:

67. [186]

    A similar provision is found under s 154A in Ch 5, Pt 2, Div 4, Subdiv BA of the RO Act. This provision was referred to in Menon, in the matter of an election for offices of the Manufacturing Division of the Construction, Forestry, Maritime, Mining and Energy Union (No 3) [2021] FCA 1263 at [21] per Wheelan J:

68. [187]

    There can be little doubt that the newly registered organisation, the Federation, had a large amount of autonomy in the AEU including financial management. The rules of the Federation largely replicated the rules of the Teachers Federation. Officers and employees of the Teachers Federation were transferred to the Federation, as well as assets and liabilities.

69. [188]

    However, amendments to the rules of the Branch were subject to the RO Act and the rules and the Branch become governed by Federal law. The Branch Conference was empowered to make, amend or rescind the orders of the Federation but only insofar as they accorded with the RO Act and the rules of the AEU.

70. [189]

    The cancellation of the Teachers Federation meant that organisation ceased to be an industrial organisation (s 228(1)) and a body corporate under the Act (see s 222).

71. [190]

    The Teachers Federation may have continued as “an unincorporated organisation” for a period of time (s 228(3)) as contemplated by the transfer agreement to transfer assets etc but there is little, or no evidence as may permit a conclusion as to any active continuation of that association beyond that point. These provisions of Div 2 of Pt 3 of the Act make clear, however, that the Teachers Federation, even aside from the definition of industrial organisation found in the Dictionary to the Act, as discussed above, could not and did not continue as an industrial organisation for the purposes of s 139(4) from its cancellation.

72. [191]

    That former organisation is responsible for meeting penalties imposed upon it (see s 228(2)) but the provisions of s 228 do not mention, as they may have done, that any former penalties may be taken into account with respect to a subsequently registered organisation which was a successor or related organisation (subject to any definitions as to those expressions incorporated under the Act) for the purposes of the operation of s 139(4) such that, for example, any successor organisation may attract the higher penalties in certain circumstances.

73. [192]

    I accept the submission by the Federation that the construction preferred by the Prosecutor would involve reading words into the provisions of s 139(4) which, having regard to the text of the provision, and when considered in the light of the broader context or purpose, was not reasonably open. The construction proposed by the Prosecutor, namely, “industrial organisation in that context read[s] as an industrial organisation substantially the same as the industrial organisation” is too great a departure from the statutory text: Taylor v The Owners – Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9 at [37]-[39].

74. [193]

    Finally, reference may be made to the purpose of the provision.

75. [194]

    This consideration figured in the submissions of the Prosecutor. The evident purposes of the Act which are, inter alia, to establish a framework for industrial relations that is fair and just (s 3(a) of the Act), and to provide that the resolution of industrial disputes would be by means of conciliation and arbitration (s 3(g)).

76. [195]

    Part 1 of Ch 3 of the Act is plainly designed to resolve industrial disputes by an efficient and fair system which enables the resolution of dispute in accordance with those objects. The Commission is charged with the administration of that system. As earlier mentioned, whilst industrial action is not illegal under the Act, the industrial relations system in New South Wales plainly contemplates that industrial action may be restricted or curtailed in appropriate cases by the Commission (see Industrial Relations Secretary at [57]–[87]) to facilitate that very process of industrial dispute resolution and, more broadly, in the public interest. Dispute orders are a means of achieving that end. The system of penalties under s 139 is intended to deter offenders from contravention of such orders, again consistently with that scheme. As the Prosecutor submitted, that deterrence will be facilitated by setting a higher penalty for repeat offenders.

77. [196]

    However, for the reasons I have given, the legislature has, for the purpose of setting a maximum penalty, fixed upon the actual industrial organisation having a particular legal character, the subject of a prosecution, and has made no express provision, in that respect, for organisations having prior registration who have reregistered or, for that matter, a counterpart or successor organisation obtaining registration, after cancellation. The gap is even greater in the present case where, as I have explained, the Federation is not, notwithstanding the close connection between that organisation and the Teachers Federation, legally or culturally the same type of organisation as the Teachers Federation.

78. [197]

    Further, the deterrent effect of a higher maximum penalty may be diminished where effectively an entity of a different character emerges which, even though populated by officials and members from the predecessor organisation (and by the receipt of assets and liabilities of the former organisation), has different members (TAFE employees) and operates in a somewhat different legislative and industrial context.

79. [198]

    In my view, the maximum penalty for any contravention from the dispute orders and directions is a penalty not exceeding in total $10,000 for the first day the contravention occurs and an additional $5,000 for each subsequent day in which the contravention continues.

Prior Contraventions As a Factor in Sentencing

1. [199]

   It was common ground that the history of contraventions by the Teachers Federation may be taken into account in sentencing the Federation for any contravention of these orders.

2. [200]

   The history of prior contraventions of an organisation prosecuted under Pt 2 of Ch 3 of the Act, is a matter relevant to sentencing. That factor was the second in a non-exhaustive set of factors relevant to sentencing adopted by Boland J in Bluescope (AIS) Pty Ltd v Australian Workers’ Union (No 2) [2005] NSWIRComm 210 (“Bluescope [2005] NSWIRComm 210”) at [37] which were accepted as appropriate sentencing principles for contraventions under the Act by Fagan J in Industrial Relations Secretary v Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales (2017) 93 NSWLR 723; [2017] NSWSC 71 (“PSA (No 1)”) at [46]-[47].

3. [201]

   The full list of those factors was set out in the judgment of Fagan J (at [46]):

4. [202]

   Those factors were not disapproved in the appeal from the judgment of Boland J in Bluescope and may have received implicit acceptance in the judgment of the Full Bench (see at [72]). Nor was Fagan J found to be error, in that respect, in Industrial Relations Secretary (see at [30], [31] and [132] where Bathurst CJ considered it appropriate to have regard to the “nature and effect” of the contravention).

5. [203]

   Those sentencing principles are similar to those espoused with respect to civil penalty proceedings for contraventions of the Fair Work Act or orders made pursuant to that Act and other legislation dealing with industrial action in contravention of industrial laws (see Commonwealth of Australia v Fair Work Building Industry Inspectorate (2015) 258 CLR 482; [2015] HCA 46 at [55].

6. [204]

   In Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (the Non-Indemnification Personal Payment Case) (2018) 264 FCR 155; [2018] FCAFC 97 (“ABCC 2018”), the Full Court of the Federal Court of Australia (per Allsop CJ, White and O’Callaghan JJ) stated:

7. [205]

   Attention must also be given to the judgment of the Full Federal Court in Pattinson v Australian Building and Construction Commissioner (2020) 282 FCR 580; [2020] FCAFC 177 at [99]-[103] (per Allsop CJ, Besanko, White, Wigney and Bromwich JJ (“Pattinson”).

8. [206]

   From those authorities the following kinds of considerations are appropriate to take into account in sentencing for a contravention of a dispute order, pursuant to s 139 of the Act:

   1. (1)

      the nature and extent of the contravening conduct including the period over which the contraventions extended;

   2. (2)

      the deliberateness of the contravention;

   3. (3)

      the loss or damage caused;

   4. (4)

      the circumstances in which relevant contravention took place;

   5. (5)

      the size of the contravener, the degree of its power and the degree of involvement of senior officials or management of the organisation;

   6. (6)

      whether the contravener, found to be in contravention of a dispute order, had previously been found to have engaged in conduct in contravention of an earlier dispute order;

   7. (7)

      the culture of the contravener (in this case of an organisation) as to compliance or contravention;

   8. (8)

      the need for deterrence;

   9. (9)

      any relevant subjective factors including undertakings regarding further conduct and cooperation with the regulator and contrition; and

   10. (10)

       the attitude of the contravener to compliance with the relevant law.

9. [207]

   As the Full Court of the Federal Court observed in Pattinson (at [99]), a list of this kind is not a “legal checklist” but a judicial description of likely relevant considerations applicable to the task of undertaking an instinctive synthesis leading to an appropriate penalty in the circumstances of the particular case, bearing in mind the statutory maximum penalty. The list certainly does not constitute a rigid catalogue of matters for attention and does not constitute mandatory criteria, even though they will assist in capturing relevant matters for consideration.

10. [208]

    Furthermore, as stated in Pattinson (at [100]) many features of the contravention will be relevant to the assessment of the objective seriousness of the offence. An understanding, as to the appropriate degree of deterrence necessary, will be reflected in the size of the penalty. However, the imposition of an appropriate penalty, given the object of deterrence, does not authorise and empower the imposition of an oppressive penalty, that is, one that is more than is appropriate to deter a contravention of the kind before the Court.

11. [209]

    I consider the approach of the parties (the Prosecutor in the alternative) to the prior contraventions of the Teachers Federation in the exercise of the Court’s sentencing discretion should be accepted. The transfer arrangements between the Teachers Federation and the “AEU NSW Branch” resulted in the creation of an organisation closely connected to the Teachers Federation which represented a harmonisation, to a large degree, of the former organisation and the Federation. As I have discussed, the arrangements between the Teachers Federation and the Federation involved the adoption of the name of the Teachers Federation and, in large measure, the rules and administrative arrangements of the Teachers Federation were incorporated into the Federation.

12. [210]

    The Court will return to the question of deterrence later in the judgment but, as to the proper approach to exercise of the Court’s discretion in sentencing for contravention of a dispute order, I adopt, with respect, the approach adopted in ABCC 2018 as to prior contraventions as follows (at [22]):

13. [211]

    I will deal with the application of these principles in the exercise of the sentencing discretion later in this judgment.

Validity of Order A1

1. [212]

   There were three separate challenges to Order A1 which are discussed below.

2. [213]

   The Federation contended that the aspects of Order A1 directed at the Federation, its officers, employees and agents which are, ultra vires, as follows:

   1. (1)

      the order to “refrain from taking any form of industrial action”; and

   2. (2)

      the order to “to not recommence, engage in or threaten to engage in” industrial action.

3. [214]

   The submissions advanced in support of this challenge were as follows:

   1. (1)

      Insofar as Order A1 applies to the defendant, its officers, employees and agents, it cannot be validly directed at anything other than the defendant its officers, employees and agents being ordered to “cease organising” industrial action.

   2. (2)

      The concept of organising in industrial parlance has the connotation of positive conduct that it is intended to and does induce or procure others to engage in conduct and/or which marshals or coordinates the activities of those who are willing to engage in such conduct.

   3. (3)

      It is well settled that industrial associations or organisations do not take industrial action - only employees or employers do. As Bathurst CJ said in Industrial Relations Secretary, only employees and employers are able to cease and refrain from taking industrial action.

   4. (4)

      In accordance with the analysis in Industrial Relations Secretary, an order enjoining an industrial association, its officers, agents and employees from organising industrial action is within power as it is an order directed to them to cease or refrain from causing its members to take industrial action.

   5. (5)

      Section 137(1)(a), as explained in Industrial Relations Secretary does not and cannot extend to requiring an industrial organisation to not do something it otherwise cannot do. To the extent Order A1 compelled the defendant, its officers, employees and agents to refrain from taking, not recommence, engage or threaten to engage in industrial action, it was ultra vires s 137(1)(a) of the Act.

4. [215]

   The Federation contended that the components of Order A1 directed at the members of the Federation were invalid because, the members of the Federation “employed in the Teaching Service” were not notified of the application for the making of Order A1 and were not afforded any opportunity to be heard in relation to them.

5. [216]

   In support of that contention, the Federation submitted as follows:

   1. (1)

      Order A1 also purported to be directed at members of the defendant. However, Order A1 is invalid in so far as it was made in circumstances where the persons to whom it is directed, being members of the Federation employed in the Teaching Service (an expression which was not defined in the Order), were not notified of the application for the Order A1 nor afforded any opportunity to be heard in relation to them.

   2. (2)

      In the dispute notification that led to the making of the dispute order, the Prosecutor named the Federation as the only party affected. There was no evidence before the Commission (and no evidence before this Court) that the Federation’s members, who were employees of the Prosecutor, were notified of the proceedings before the Commission or the orders sought by the Prosecutor against them. Further, it was only the Federation who appeared in the proceedings before the Commission. The inference can be drawn that the members were not notified of the proceedings or the proposed dispute order.

   3. (3)

      Where a party’s legal rights could be adversely affected by a decision, it is elementary that there is an obligation on the decision maker to accord them procedural fairness: see Kiao at [584]-[585] per Mason J. Express words of great clarity are required to abrogate the common law right to procedural fairness and no such express words are present in the Act: see Electrolux Home Products Pty Limited v Australian Workers’ Union (2004) 221 CLR 309; [2004] HCA 40 at [20]-[21] per Gleeson CJ. An order imposing an obligation on a person in circumstances where that person has not been heard is invalid, as it is an order made in excess of jurisdiction: see Ashworth v Terrill [2019] NSWSC 1596 at [15] per Adamson J.

   4. (4)

      Consequently, insofar as Order A1 purports to impose obligations on the Federation’s members, it is also invalid as those individuals were denied procedural fairness

   5. (5)

      The Prosecutor’s contention it was impracticable to give notice to the members of the Federation should not be accepted because those persons are employees of the Prosecutor and it was a simple matter to notify them of the orders being sought by the Prosecutor. In fact, the evidence for the Prosecutor is that the Prosecutor did contact “teaching staff” on 29 November 2021, to inform them of the orders made by the Commission and encourage them to comply with them.

   6. (6)

      In reliance upon Regional Express Holdings, the premise of the Prosecutor’s submission is wrong. It proceeds upon the basis that “unions are the privies of their members”. Upon registration, unions are established as a body corporate and distinct from their members. They act in an independent capacity and not merely as an agent of their members.

6. [217]

   The Federation submitted, the invalid aspects of Order A1 are not severable because any attempt at their excision would not only change the extent of Order A1 but also the nature of Order A1 (cf McFarlane v Daniell (1938) 38 SR (NSW) 337 at [345] per Jordan CJ). Any attempt to rewrite Order A1 would ignore the fact that it purports to treat the defendant and its members equally and subject to the same constraints. Further, any attempt to rewrite Order A1 would require the elimination of the requirement not to recommence, engage in or threaten to engage in industrial action.

7. [218]

   This challenge was brought in the alternative. It was contended that insofar as Order A1 purported to require the Federation to itself refrain from taking industrial action, or not engage in or threaten to engage in industrial action, it was manifestly ambiguous and unclear. It was submitted that the order failed to indicate the conduct enjoined or conduct commanded with any precision. In support of the third challenge, the Federation made the following submissions:

   1. (1)

      In relation to orders that are in the nature of injunctions (as the Order at issue in these proceedings is), the Full Court of the Federal Court explained in ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 at [259]:

   2. (2)

      These principles apply a fortiori to orders under s 137(1)(a), given the requirements of s 138. The Commission was required to frame its orders in clear and unambiguous terms and set out with precision and clarity what the persons to whom they were directed were required to do or not do: see, for example in relation to Court orders Kirkpatrick v Kotis (2004) 62 NSWLR 567; [2004] NSWSC 1265 at [46].

Validity of Orders A2, A3 and A4

1. [219]

   The Federation conceded that there was no direct attack on those orders with respect to the aforementioned grounds of invalidity because they were ancillary to Order A1. Hence, they must be declared invalid if Order A1 was found invalid. However, the Federation contended that, if orders A2 and A3 were, in fact, separate contraventions then an issue arose as to whether those orders fell outside the powers of the Commission under s 137(1)(a) and were, thereby, ultra vires. Given the conclusion I will reach as to the question of whether Orders A2 and A3 represented separate and distinct contraventions it will be unnecessary to resolve that issue.

Whether the validity of the Commission’s dispute orders can be the subject of collateral attack in enforcement proceedings

1. [220]

   If the determination of a complaint by a Tribunal can be properly characterised as an activity of an administrative nature, then in the absence of legislative prescription to the contrary, the determination would be open to collateral review by a court in the course of dealing with an issue properly arising as an element in a judicable controversy of which the court was seized: Attorney-General (Cth) v Breckler (1999) 197 CLR 83; [1999] HCA 28 at [36] (per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ). See also with respect to jurisdictional error Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11 at [51] and [53] (per Gaudron and Gummow JJ). Thus, persons affected by an administrative act may seek judicial review and have it declared void or set aside by a court as the administrative act made outside jurisdiction is void.

2. [221]

   Thus, in Ousley v The Queen (1997) 192 CLR 69; [1997] HCA 49, a majority of the High Court found that the issuing of a warrants authorising the use of the listening devices by a court were administrative rather than judicial acts and upheld a finding of invalidity of convictions based on those warrants. This involved a finding that the warrants were invalid at the time that they were issued rather than when they were found to be invalid.

3. [222]

   The Commission does not exercise judicial power: Australian Salaried Medical Officers' Federation (NSW) v Secretary of Health [2018] NSWIRComm 1052 at [27]; Industrial Relations Secretary v Public Service Association and Professional Officers Association Amalgamated Union of New South Wales [2021] NSWSC 160 at [114]-[115] per Rothman J.

4. [223]

   The majority in Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1 (“Kirk”) (per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) addressed the fact that the Act and the Constitution Act 1902 (Cth) referred (at the relevant time) to judges of the Industrial Court being equivalent to judges of the Supreme Court. The majority stated at [102]:

5. [224]

   An example of a matter analogical to the present, where an order of the Commission stopping industrial action has been challenged in Court proceedings alleging a breach of that order, was Esso Australia Pty Ltd v The Australian Workers’ Union (2015) 253 IR 304. In that matter, Jessup J considered a number of issues including breaches asserted by the applicant of contraventions of orders of the Commission under s 418(1) of the Fair Work Act. A threshold issue before His Honour was whether the order within power and had valid operation. His Honour held, after having recourse to s 46 of the Legislative Instruments Act 2003 (Cth) (at [91]-[116]), that the two orders under consideration were in part invalid. Jessup J’s analysis and conclusions were not disturbed on appeal in Esso Australia Pty Ltd v The Australian Workers’ Union (2016) 245 FCR 39; [2016] FCAFC.

6. [225]

   I accept then that the collateral challenge to the orders brought by the Federation is open to the Federation, subject to the discretionary issues raised by the Prosecutor to which I shall refer later.

7. [226]

   The Prosecutor concurred that a collateral attack upon the orders was capable of being pursued by the Federation but submitted that the collateral attack should not be entertained in the circumstances of this case. The Prosecutor relied, in that respect, upon the judgement of the Supreme Court of South Australia in Jacobs v OneSteel Manufacturing Pty Ltd & Workcover Corporation of SA (2006) 93 SASR 568. Besanko J (with whom Duggan, Vanstone and Layton JJ agreed) set out the principles relating to when a collateral challenge will be available as follows (at [93]):

8. [227]

   The Prosecutor put the following submissions in support of a contention that the Federation should not be permitted to mount a collateral attack on the orders in the present matter. Those contentions were as follows:

   1. (1)

      Section 179(6) of the Act is an exclusion to the principles of finality of decisions otherwise provided for in that section with respect to a right of appeal to a Full Bench of the Commission or a right of appeal to this Court.

   2. (2)

      Part 7 of the Act provides that an appeal against a decision of a single member can be made to a Full Bench with leave of the Full Bench (see ss 187 and 188 of the Act).

   3. (3)

      Section 179 of the Act is drafted in wide terms to confirm the validity of orders, unless appealed. While it cannot oust judicial review on the grounds of jurisdictional error: see Kirk at [105], it evinces a legislative intention that there will not be collateral challenge to the validity of the Commission’s orders. Rather, any challenge to the Commission’s orders is to be taken by way of appeal to a Full Bench, and thereafter by way of further appeal or prerogative relief proceedings before the Supreme Court.

   4. (4)

      The clear legislative scheme is that an attack on the validity of a decision of a single member would proceed by way of appeal, and absent that appeal it is to be considered to be valid and binding.

9. [228]

   Whether or not all of the alleged grounds of invalidity involved jurisdictional error as asserted by the Federation, the Prosecutor accepted that, to the extent the Federation raised issues of a denial of procedural fairness or an exercise of power not available to the Commission, this raises a putative jurisdictional error that could be challenged by judicial review.

10. [229]

    Rather, the Prosecutor contended that, as a matter of discretion, the Court should not entertain the collateral challenge as to the validity of the orders as this would be contrary to the legislative intention in s 179 of the Act.

11. [230]

    There was some force in that submission but I propose nonetheless to deal with the issues of validity essentially because the issue of the exercise of the Court’s discretion, in that respect, was not fully argued before the Court (it arose as a result of a supplementary note by the Prosecutor dealing with the availability of a collateral attack) and, at least so far as the second challenge is concerned, there exists a ground of jurisdictional error which would be available for judicial review.

The first challenge: consideration

1. [231]

   I accept the analysis of the Federation that Order A1 operates as follows:

   1. (1)

      commands were issued to the Federation, its officers, employees, agents and its members employed in the Teaching Service; and

   2. (2)

      those commands required those organisations to:

2. [232]

   There is no dispute that, after the judgment of Bathurst CJ in Industrial Relations Secretary, the Commission had power to impose such requirement upon the Federation

3. [233]

   Nor was there put in issue by the Federation that its members, being employees of the Prosecutor (in the Teaching Service), may be ordered to refrain from taking any form of industrial action (including a strike), subject to issues of invalidity which may arise under the second challenge and the question of severability raised by the Federation. Whilst only employees of the Prosecutor can “take” industrial action (Industrial Relations Secretary at [118]), Order A1 is directed to the Federation’s members who are employed in the Teaching Service.

4. [234]

   Rather, the premise of the Federation’s first challenge is that orders may not be validly made for the Federation (and its employees, officers and agents) to refrain from, engage in, threaten to engage in (or recommence) industrial action because:

   1. (1)

      the Federation itself cannot take industrial action (see Industrial Relations Secretary at [124]). Nor can its employees, officers or agents engage in industrial action in the Teaching Service as they are not employees of the Prosecutor; and

   2. (2)

      orders may not be made against the Federation under s 137(1)(a) to do something which it is not capable of doing.

5. [235]

   Those propositions may be accepted on their force. However, in my view, as advanced by Ms B Byrnes of counsel for the Prosecutor, whilst Order A1 contains multiple obligations capable of being variously performed by different persons or entities, the order is capable of being read distributablely rather than the obligations simply acting in their totality.

6. [236]

   The orders should be read consistently with the principle that the orders should be construed so far as possible so that they are within power. Thus, the obligations operated lawfully upon all entities and persons to which they may have lawfully applied, even if the orders apply to a subject matter greater than the orders may (arguably) validly extend to when read in their entirety. The orders may be treated distributively or divisibly with respect to the valid area of their operation: see, by analogy of reasoning Clubb v Edwards (2019) 267 CLR 171; [2019] HCA 11 (“Clubb”) at [141] and [148] (per Gageler J) and [421]-[424] and [429]-[432] (per Edelman J).

7. [237]

   I do not consider that, in that context, issues concerning the doctrine of severance properly arises: see Clubb at [422]-[424]. The intention of the Commission in the orders, in my view, was to have the orders operate distributively in the manner I have described above consistently with construing the orders so far as possible within power to make dispute orders consistent with the objects of the Act, under s 137(1)(a). The order does not purport, as submitted by the Federation, to treat the Federation and its members “equally” and subject to the same constraints. Rather, Order 1A will comprise a number of discretion obligations directed to the Federation and its employees, officers, agents and members.

8. [238]

   In my view, the first challenge to validity of Order A1 fails.

The second challenge

1. [239]

   The second challenge proceeds upon a misconception of the role and standing of industrial organisations under the Act and how those functions are essential to the effective operation of the statutory scheme for the resolution of industrial disputes.

2. [240]

   The role of an industrial organisation of employees in relation to an industrial dispute falling for resolution under Ch 3 of the Act is as a principal standing in the place of its members as a representative of the class associated together in the organisation: see Regional Express at [30].

3. [241]

   The Federation represents not a definite or ascertainable individual but a group or class, the actual membership of which is subject to change. The industrial organisation may, as in this case, formulate and prosecute claims on behalf of that group: see Regional Express at [32].

4. [242]

   This is consistent with the scheme of the Act, which recognises the pivotal role of industrial organisations in resolving disputes. As mentioned earlier, s 130 of the Act provides that an industrial organisation of employees or a State peak council may notify disputes on behalf of employees. Section 218(1)(b) of the Act provides that an organisation may only be registered if it is an organisation for furthering or protecting the interests of its members and s 218(1)(c) provides that an organisation may only be registered if it is capable of representing its members in connection with industrial matters.

5. [243]

   The Act recognises the pivotal role of organisations in the resolution of industrial disputes whether having a direct interest in the resolution of an industrial dispute or not. They may notify the existence of disputes and become parties to compulsory conferences (within the context I have earlier discussed) convened to resolve the same by conciliation or arbitration. The organisations have the capacity to seek a new award or vary an award where it has a sufficient interest, often governed by its eligibility rules.

6. [244]

   The notion that the individual members of an industrial organisation must be notified of an application for orders against them and be given an opportunity to be heard in industrial dispute proceedings in which the very organisation that represents their interests appears and is afforded an adequate opportunity to be heard during the proceedings before the Commission dealing with the notified industrial dispute, is inconsistent with the role and functions of an industrial organisation, (at least as recognised under the Act) and the antithesis of the system of industrial relations under the Act which makes those organisations an essential component of the resolution of industrial disputes under Ch 3. The contention advanced by the Federation, in the second challenge would not only rob the system of industrial regulation under the Act of that central feature for the resolution of disputes but is inconsistent with the object of the Act to encourage participation in industrial organisations by representative bodies of employees and sits contrary to the public policy considerations reflected in s 3(a) and s 146(2) respectively. Those public interest considerations arise because the process contended for by the Federation would most surely undermine the system by eliminating or significantly diminishing the capacity of the Commission to provide quick and effective means of grappling with industrial disputes, particularly where large employer organisations are involved.

7. [245]

   The contention of the Federation that the Prosecutor did not provide notice to members of the Federation “whose interest may be affected”, in the notification of the industrial dispute, misunderstands the function of such notifications, as I have described them. The notification does not define the parties to proceedings. The provisions of Pt 1 of Ch 3 are designed to provide a wide scope to the Commission to identify, define and resolve the subject matter of the dispute. That may involve an enlargement of the parties “notified” during arbitral proceedings before the Commission including, in that respect, the involvement of other interests in the consideration of the public interest provided all interests are afforded procedural fairness. No doubt that is why the Commission saw no need to separately notify members of the union of the industrial dispute, the subject of the proceedings before the Commission, or the prospect of orders being made due to the representative role of the Federation. That conclusion is reinforced by the authority of the Branch Council of the Federation to direct members to, inter alia, engage in industrial action (see rule 12 of the Branch Council).

8. [246]

   Hence, the second challenge fails.

The third challenge

1. [247]

   When seen in the light of the discussion of Challenges 1 and 2, there is no basis, in my view, by which Order A1 may be declared as ambiguous or unclear. The third challenge to the validity of that order fails.

2. [248]

   The commands are, by their nature, clear in their direction to the particular interests affected by the command and the obligations were distributive amongst them in the manner earlier discussed.

3. [249]

   Orders to restrain from industrial action directed to the members of the Federation arising out of dispute proceedings in which the Federation appears as a representative of those members may well be described as commonplace and not productive of any ambiguity. The same observation may be made about orders restraining further industrial action.

Conclusion

1. [250]

   For those reasons, the Federation has not established Order A1 is invalid. Further, the part of the challenge to the validity of Orders A2 and A3 relied upon those orders being ancillary or facilitative of Order A1, that challenge must also then be rejected.

CONTRAVENTION OF DISPUTE ORDERS

1. [251]

   As previously mentioned, the Federation admitted the contravention of Order A1. No separate contravention arises with respect to Order A4 as the Prosecutor joined into contravention A, contravention of orders A1 and A4.

2. [252]

   As correctly submitted by the Federation, the acceptance of liability by the Federation carries with it an admission of all the essential legal elements of the contravention admitted. Otherwise, any facts that are relied upon to aggravate the offence must be agreed or proved in accordance with relevant principles: R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 (“Olbrich”) at [25]-[28] (the analysis in Olbrich was applied in a civil penalty context by the Full Court of the Federal Court in ACCC v Reckitt Benckiser (Australia) Pty Ltd (2016) 340 ALR 25; [2016] FCAFC 181 (“ACCC”) at [131]).

3. [253]

   It is relevant to the assessment of penalty to deal with the factual circumstances that establish the breach of Orders A1. These are as follows:

   1. (1)

      The dispute orders were made on 29 November 2021.

   2. (2)

      Thereafter, there occurred a series of communications to the members of the Federation and the public by the Federation confirming the strike on 7 December 2021, would proceed regardless of the dispute orders, as well as providing links to venues for teachers to attend rallies across the state of NSW. Annexure E to the affidavit of Ms Archibald of 3 December 2021, is a Member Alert to Federation members dated 30 November 2021, which stated “we cannot be deterred” and “we must come together as one on Tuesday 7 December and send the Government a message they can’t ignore”.

   3. (3)

      There were two other publications on 30 November 2021: an article in the Newcastle Herald, quoting the President of the Federation as stating that next Tuesday “will be the first 24 hour stoppage in a decade” and on the same day, in a radio segment on ABC Radio Sydney Breakfast, the President that the strike would proceed on 7 December 2021.

   4. (4)

      On 1 December 2021, there were two publications in evidence by the Federation – a Facebook page which had a link to a video titled “Tuesday’s strike is all about teachers, students and the future of our profession” and a post on the Federation Twitter website by a Ms Julie Ross, apparently a member of the Federation’s Executive (see the earlier outline of the Federation’s Committee of Management in financial statements) as to why she was participating in the strike.

   5. (5)

      On 2 December 2021, there were six further publications (on the Federation website, the “Morethanthanks” website, the Federation’s Facebook page and the Federation’s Twitter page) dealing with, inter alia, the venues for strike meetings on 7 December 2021.

   6. (6)

      On 3 December and 6 December 2021, the Federation continued to post communications on its website, Facebook page and Twitter pages, as well as make appearances on radio encouraging teachers to strike.

   7. (7)

      The Federation also booked various functions to hold rallies across regional New South Wales.

4. [254]

   Having regard to the conclusions I reach below, as to the inferences that may be drawn with respect to 4 and 5 December 2021, it follows that the contravention continued each day up to the strike on 7 December 2021. I note in that respect that contravention A concerned a contravention of Order A1 and A4 which included a prohibition on inducing, authorising and encouraging the organising or taking of industrial action.

5. [255]

   The Court will find that these contraventions, including as they did the organisation of the strike (on 7 December 2021), were part of a single course of conduct contrary to orders prohibiting the organisation and encouragement or inducement of the strike in Order A1 and A4. They are counterparts, in my view, of the positive acts taken by the Federation as outlined for contravention A above. However, the conduct is relevant to the proof of contravention A1, as well as demonstrating the nature of the breach of orders A2 and A3 respectively constituting that conduct, both in that respect and for the purposes of assessing a penalty. I will deal with all of those considerations under this heading.

6. [256]

   The respective breaches of Orders A2 and A3 are as follows:

   1. (1)

      With respect to Order A2, the Federation failed to take steps by 4pm on 30 November 2021, to issue a public statement which retracted and revoked its direction to members to strike for 24 hours on 7 December 2021, as well as various calls it had made on its members to rally and on its various officers to mobilise the membership. In a letter dated 2 December 2021, the Federation provided the Prosecutor’s solicitor with a letter admitting that it had not taken these steps:

   2. (2)

      By reference to Order A3(a) the Federation failed to remove any reference to the 24 hour strike to occur on 7 December 2021 from its website and any documents linked to its website by 4pm on 30 November 2021. In addition to screenshots of the Website on 30 November 2021 after 4pm and 1 December 2021 showing content which refers to the strike planned for 7 December 2021, the Federation’s letter to the Prosecutor also admitted to not removing any reference to the 24 hour strike to occur on 7 December 2021 from its website.

   3. (3)

      The correspondence of 2 December 2021 relevantly states:

   4. (4)

      By reference to contravention of Order A3(d), the Federation failed by 4pm on 30 November 2021, to take all reasonable steps to send by email and mobile telephone message to all members of the Teaching Service a link to order A1. Again, this much was admitted by the Federation, in its letter to the Prosecutor of 2 December 2021.

7. [257]

   By reference to Order A3(c), the Federation failed to publish in a prominent position, on the Federation Website, Facebook, Twitter and “more than thanks” website, Order A1 and a direction to members that they comply with those orders and not take industrial action during school hours. Ms Archibald deposed that the industrial officers employed by the NSW Department of Education informed her that, on 30 November 2021, after 4:30pm, they could not see the orders and directions on the Federation website, Facebook, Twitter page and the “morethanthanks” website. To the contrary, those sites encouraged members to engage in industrial action. The orders remain unpublished on the Federation website on 1 December 2021.

8. [258]

   On 7 December 2021, the Federation took industrial action in the form of a 24 hour strike with rallies across NSW. The evidence shows that 43,809 teachers participated in the strike across the State of New South Wales, 390 schools were unable to open as not enough staff were available to provide adequate supervision, and 550,000 or 86% of public school students did not attend school.

Conclusion

1. [259]

   It follows that the Prosecutor has established breaches of Orders A1 (and A4 but as part of contravention A) and Order 2 and 3. However, as I will discuss below, the various conduct constituting contraventions A to E are part of a single course of conduct which continued from 30 November 2021 to 6 December 2021. Contravention F is a separate contravention on one day, being the actual strike on 7 December 2021.

WHETHER MULTIPLE SEPARATE CONTRAVENTIONS

1. [260]

   The Court has earlier set out the orders and the six contraventions with their particulars in the amended summons, the subject of this prosecution.

2. [261]

   The requirements of Order A1 has also been the subject of earlier discussion in the context of the discussion of validity above.

3. [262]

   Order A4 also concerned commands to specified persons and entities to cease organising and refrain from taking industrial action, albeit the order proscribes the Federation, its officers, employees and agent from organising or otherwise lending aid to members of the Federation to organise or take industrial action. The conduct constituting a breach of Order A1 would then essentially be the same conduct constituting a breach of Order A4. This is recognised by the Prosecutor grouping Orders A1 and A4 in the first contravention, contravention A.

4. [263]

   The alleged contraventions do not rely upon Order A5.

5. [264]

   The issue arising in the proceedings is then whether the remaining contraventions alleged in the amended summons, namely, Contravention B (concerning order A2), Contravention C (concerning Order 3(a)), Contravention D (concerning Order 3(d)), Contravention E (concerning Order A3(c)) and Contravention F (concerning Order A1 and the strike itself) concerned, as a Prosecutor contended, “distinct, separate conduct which contravened distinct, separate orders”.

6. [265]

   I will commence by further discussing, in condensed form, the nature of the orders which the Prosecutor contended, and I have accepted, constituted breaches of the dispute orders.

7. [266]

   Order A2 required the Federation to issue a public statement retracting and revoking three distinct directions and calls, the first of which was a direction to members to strike for 24 hours on 7 December 2021. The step required to be taken by the Federation was to be undertaken by 4pm on 30 November 2021.

8. [267]

   Order A3 required the Federation to take certain steps by that same date and time. Order A3(a) and (b) required the Federation to remove references to the 24 hour strike to occur on 7 December 2021, from its various social media sites. Order A3(c) required the Federation to publish Order A1 and a direction to members to comply with the orders and not to take industrial action during school hours on its social media websites. Order A3(d) required the Federation to communicate with the membership of the Federation by email and mobile phone, a “link” to Order A1 and a direction to comply with those orders and not to take industrial action during school hours.

9. [268]

   Order A3 was introduced by the words “Without limiting the steps required to be taken” by Order A2.

10. [269]

    The Prosecutor contended that there was a substantive difference “between at least some of the orders which are each directed to different means and created distinct and separate obligations of a different nature”.

11. [270]

    Upon findings as to the validity of Order A1, the Federation admitted the contravention of Order A1. That admission is properly made on the evidence in these proceedings. As to Orders A2 and A3, the Federation submitted, and I will find, that they were part of the same course of conduct contravening the prohibitions in order A1 and order A4 (both of which are the subject of contravention A), as to the organising, encouragement, authorisation or involvement, of the strike.

12. [271]

    The Federation made two further submissions:

    1. (1)

       If Orders A2 and A3 constituted separate and distinct contraventions as to Order A1, then, whilst a failure to take the steps required by 30 November 2021 would constitute a contravention, there could be no further breaches after that date as the orders were temporally confined (“the 30 November submission”).

    2. (2)

       No conduct was particularised in the amended summons as having occurred in breach of the orders on 4 and 5 December 2021. Accordingly, there can be no penalties imposed for contravention on those days such that any contravention could only have occurred over 6 days (“the 4 and 5 December submission”).

13. [272]

    The discussion of the first contravention can await the resolution of the broader issues raised in this aspect of my judgment.

14. [273]

    I will however deal, at this juncture, with the 4 and 5 December submission.

15. [274]

    I accept the rejoinder by the Prosecutor in this respect.

16. [275]

    There is conduct particularised in the amended summons for Friday 3 December 2021 and Monday 6 December 2021, which included continuing to display references to the 7 December 2021 strike on the Federation’s website and encouraging members to strike on its websites, and other online platforms such as Facebook and Twitter. It can be readily inferred that articles appearing online on Friday 3 December 2021 and Monday 6 December 201 were also online over the weekend.

17. [276]

    For example, under contravention A, particular (s) referred to there being, on 3 December 2021, on the Federation website information regarding venues for the teachers strike meetings on 7 December 2021, and particulars (v), (w), (x) and (y) referred to information about venues for 7 December being on the Federation website on 6 December. Further, particular (z) referred to a post that encouraged members to strike on the Federation Facebook page on 6 December which had been posted on 3 December. Particular (aa) referred to a post on the Federation Facebook page that encouraged members to strike which had been posted on 1 December 2021. These particulars were established by the evidence in the proceedings.

18. [277]

    Particular (f) to Contravention E referred to industrial officers employed by the Department of Employee Relations Directorate undertaking searches of the Federation Website, Facebook, Twitter, and the “Morethanthanks” website each day between 4 and 7 December and not seeing the Commission’s dispute orders or any direction to members to comply with the orders and not engage in industrial activity during school hours at any time.

19. [278]

    I reject the Federation’s 4 and 5 December submission.

Submissions for the Prosecutor

1. [279]

   The Prosecutor submitted that each of the contraventions (A) to (F), in the amended summons, was a separate contravention of the orders for the purposes of setting penalties. It followed that a pecuniary penalty may be imposed for each day on which the Federation contravened the dispute orders requiring it to cease organising industrial action but on which the Federation or its members took no industrial action. There may be multiple day punishable contraventions of “ancillary orders alone”. Contravening conduct which continues from day to day which is not conduct of a homogenous kind may be regarded as a separate contravention.

2. [280]

   Reliance was placed upon the judgment of Fagan J in Industrial Relations Secretary v Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales (No 2) [2017] NSWSC 430 (“PSA (No 2)”) at [11].

3. [281]

   The Secretary was correct to submit that in Industrial Relations Secretary, Fagan J found that the relevant orders in that case were repetitive of each other in substantive effect and each of them combined a primary prohibition against the taking of industrial action with a secondary or ancillary prohibition against encouraging or organising industrial action. I will return to that judgment below.

4. [282]

   The Prosecutor contended that the two orders to which his Honour referred resemble, in many respects, Orders A1 and A4 in these proceedings thereby accounting, in the Prosecutor’s contentions, for grouping of Orders A1 and A4 in the first contravention.

5. [283]

   The Prosecutor expanded upon those contentions as follows:

   1. (1)

      The correct approach was to identify whether the orders were repetitive of one another in substantive effect.

   2. (2)

      By reference to the judgment in Bluescope and the decision of Bathurst CJ in Industrial Relations Secretary at [130], the orders in the present matter constitute multiple dispute orders made under the primary power in s 137(1)(a). The Court is not dealing here with the exercise of an implied power. The Court should not be proceeding on the basis that the exercise of power to make the orders constituted a single exercise of power but rather consider whether the orders are repetitive of each other in substantive effect.

   3. (3)

      In this matter, each of the pleaded contraventions have a distinctive qualitive nature and any factual overlap in the contravening conduct is minimal. The orders are independent of one another and are directed at different mediums and different purposes. They create distinct legal obligations.

   4. (4)

      Orders A1 and A4 impose negative obligations on the defendant not to take certain actions. The contravention is the conduct of continuing to organise industrial action and encouraging members to engage in the industrial action.

   5. (5)

      Order A2 relates to the specific act of not retracting a direction to members to strike for 24 hours. Order 2 is of a different character because it is directed at a particular positive action that has to be taken by the Federation in circumstances where it had issued a direction to members to engage in a strike. The different character arises from the fact that a step is required to ensure that the members of the Federation are not in the position where they have been ordered by the Commission not to engage in a strike but directed by the union to engage in a strike pursuant to the rules of the union.

   6. (6)

      The third, fourth and fifth contravention each concern Order 3. The third contravention requires a positive action by the Federation to take down articles from its website and a negative obligation not to put further references to the strike on the website. The fourth contravention uses a different medium. It requires specific individual communications to members by email or telephone notifying them of the orders. The fifth contravention requires the defendant to publish in a prominent position on its website and social media pages the orders and directions to comply with those orders.

   7. (7)

      The sixth contravention (Contravention F) concerns the actual strike. Contrary to Order A1, it was contended that the preparatory steps in organising the strike are of a different nature to the members of the Federation actually engaging in strike action on 7 December 2021. If the Federation had complied with Order A1 then the strike would have not occurred and nor would its consequences.

6. [284]

   The Prosecutor advanced an alternative position by which it was submitted that the Court may approach the multiple contraventions by grouping the contraventions into three groups as follows:

   1. (1)

      continuing to organise a strike which would embrace the first, second and third contraventions (a breach of Orders A1, A2, A3(a))(and perhaps A3(b) and A4);

   2. (2)

      a failure to communicate to members the orders by telephone and email as well as on social media platforms (whilst not specified in submissions, this would appear to be a reference to the fourth and fifth contraventions) (breaches of Orders A3(c) and (d)); and

   3. (3)

      the taking of strike action itself being the sixth contravention (a breach of Order A1).

7. [285]

   It was submitted, the three grouped contraventions focus on the Federation’s conduct, as opposed to “the repetition between the orders”. Each of them is of a different qualitative character, both legally and factually as follows:

   1. (1)

      The first group concerns preparatory steps to organise a strike including booking venues, persuading members of the Federation through social media and failing to direct its members not to engage in the strike or failing to retract its direction that the members engage in the strike.

   2. (2)

      The second group concerns a deliberate decision not to alert members of the orders. That is of a different character because at that point in time the organisation of the strike was ongoing.

   3. (3)

      The third group consists of the actual strike is a different factual matrix causing great disruption to New South Wales schools.

8. [286]

   Some particular submissions were put with respect to the judgment of the Full Bench of the Commission in Bluescope. Those submissions were as follows:

   1. (1)

      The judgment in Bluescope should be confined to that case or, in the alternative, the Court should find the approach of the Industrial Court in that judgment to be wrong so far as the Court determined at [64]-[66] that as a matter of statutory construction, there was only one contravention for which one penalty is available arising from one incident of industrial action because there was a single exercise of power under s 137, which included the power to make ancillary orders as were necessary to give effect to the statutory purpose of that section. Thus, the Full Bench considered that, as a matter of substance, there was no difference between the substantive order 1 and orders 2 and 3 which were facilitative and did not create new obligations.

   2. (2)

      There was a lack of authority to support a finding that there was a single exercise of power to which s 139(4) of the Act was intended to apply. Each of the orders were supported by s 137(1)(a) of the Act but that did not necessarily mean “there was a single exercise of power”.

   3. (3)

      It is evident from the judgment of the Full Bench in Bluescope that a finding was made that the orders were made pursuant to an implied facilitative power rather than a substantive exercise of power in s 137(1)(a). By the judgment of the Court of Appeal in Industrial Relations Secretary, the dispute orders in this case are each an incident of the exercise of power under s 137(1)(a) of the Act and not ancillary orders made in a single exercise of power.

   4. (4)

      Further, the so called “absurd result” that a maximum penalty for a breach would vary depending upon the way a dispute order was drafted (whereby orders may attract different maximum penalties depending on whether they were drafted in a single paragraph or multiple paragraphs) is over-stated. Where orders require separate and distinct things to be done or refrained from being done, they are naturally distinct and separate exercises of the power to make dispute orders and each one is naturally a separate contravention regardless of whether they are contained in a single or multiple paragraphs

   5. (5)

      In response to paras (25) and (26) of the defendant’s submissions, the Court of Appeal in Industrial Relations Secretary found (at [149]) that there was a single contravention which occurred over a period of 14 days. There is little reasoning, in that respect, in the Court of Appeal’s decision but in the primary judgment the Court was considering, PSA (No 2), Fagan J held (at [11]) that the two separate orders were repetitive of one another in substantive effect with a primary prohibition against taking industrial action and a secondary prohibition against encouraging or organising industrial action.

   6. (6)

      Neither, the Court of Appeal in Industrial Relations Secretary nor Fagan J in PSA (No 2), sought to align their approach with that adopted by Bluescope. In Industrial Relations Secretary (at [125]) it was found that the power of the Commission under s 137(1)(a) of the Act, extends to making orders directing an industrial organisation to refrain from directing its members to engage in industrial action or to refrain from organising industrial action. Section 137(1)(a) of the Act should not be given a confined operation although at [130] of Industrial Relations Secretary Bathurst CJ held that it was unnecessary to consider whether there was an implied power to make dispute orders under s 137(1)(a).

   7. (7)

      As to the defendant’s submissions regarding Order A3 and a temporal limitation, it was submitted, that where an act or thing is required to be done by a certain time, the obligation to do that act or thing continues until the act or thing is done, even if the period has expired or the time has passed. It is irrelevant that the orders in Order A3 have been separated into sub-paragraphs rather than primary paragraphs. There is a positive obligation under Order A3 which continued until it was complied with.

   8. (8)

      As to the Federation’s 30 November submission, the judgment of the High Court in R v Commonwealth Court of Conciliation and Arbitration; Ex Parte Amalgamated Engineering Union (1953) 89 CLR 636; [1953] HCA 60 should be distinguished. The directions in that case also included directions that the Electoral Officer undertake actions no later than a specified date but included a separate paragraph that if directions were not furnished by that date and time, the officer was directed to furnish it on each day thereafter. That additional requirement does not exist in this case but nonetheless the High Court determined, that in considering that additional obligation, that it was a continuing obligation to do the thing required regardless of the time limit.

   9. (9)

      As to the notion of a course of conduct relied upon by the defendant, the Prosecutor submitted that there was an insufficient legal and factual overlap to engage the “course of conduct principle”. A common intent or purpose is not enough itself to establish a single act of organisation as it is necessary to look at the actual conduct: Cahill v Construction, Forestry, Mining and Energy Union (No 2) (2018) 170 FCR 357 at [47].

   10. (10)

       In any event, at common law, even if a Court concludes that a number of contraventions arise out of the one course of conduct, it is not bound to only impose one penalty. The Court may impose more than one penalty in order to ensure that the wrongdoing involved is adequately punished and the objects for fixing penalty have been adequately met: see Construction, Forestry, Mining and Engineering Union v Cahill (2010) 269 ALR 1; [2010] FCAFC 29 (“Cahill”) at [47]. The course of conduct principle is merely “a tool of analysis” which a Court may choose to use to assist in ensuring that a contravener is not punished twice for what is essentially the same wrongdoing. A Court is not compelled to utilise the principle because, as Owen JA said in Royer v Western Australia [2009] WASCA 139 (“Royer”) (at [28]), “[d]iscretionary judgments require the weighing of elements, not the formulation of adjustable rule or benchmarks”.

Consideration: Multiple Contraventions

1. [287]

   At the commencement of the discussion of this issue, it is appropriate to return to the judgments in Bluescope, PSA (No 1), PSA (No 2) and Industrial Relations Secretary.

2. [288]

   In Bluescope, the respondent corporation, Bluescope Steel (AIS) Pty Limited, had notified the Commission of the existence of an industrial dispute over the outsourcing of part of the coil handling and packaging operations within the Packaging Products Department of the corporation at its Port Kembla steelworks.

3. [289]

   Industrial dispute proceedings ultimately came to grapple with threatened and actual strike action by the packaging products employees. After recommendations were made industrial action ceased (further recommendations were then made). However, industrial action subsequently recommenced.

4. [290]

   Commissioner Connor, who was hearing the industrial dispute proceedings, made dispute orders on 16 February 2004, essentially requiring that the subject employees, members of two unions, one being the Australian Workers’ Union, New South Wales. (“AWU”), first, “cease and refrain” from industrial action and, secondly, that the AWU and its officers take reasonable steps to ensure compliance with the order, (collectively “the first orders”) The second order shall be referred to as the second part of the first order.

5. [291]

   Meetings of employees were convened and, despite efforts by the AWU to ensure compliance, the employees continued their strike over two days (with some escalation) before Commissioner Connor then made amended dispute orders (“the amended orders”) on 17 February 2004 in the following terms:

6. [292]

   The AWU did not convene the meeting of its members required by the third order. One of the officers of the AWU apparently advised some members they were on strike and a meeting of union delegates opposed returning to work, notwithstanding, again the Union Secretary encouraging a cessation of the strike. On 27 February 2004, a stop work meeting was held by Coil Preparation Line employees.

7. [293]

   Boland J found that the Australian Workers’ Union NSW Branch had contravened both aspects of the first orders and the amended orders in certain respects. His Honour imposed penalties for contraventions of the orders. Boland J found, inter alia, that the AWU had contravened the second part of the first orders finding separate contraventions for two days, orders 2 and 3 of the amended orders (for both 17 and 27 February 2004) with respect to those contraventions.

8. [294]

   The Full Bench summarised those determinations at first instances as follows (at [25]):

9. [295]

   Two grounds of the appeal relevant in the present context were:

   1. (1)

      incorrectly treated each part of a dispute order as a separate order for the purposes of identifying the maximum penalty applicable under s 139(4) of the Act; and

   2. (2)

      effectively penalised the AWU twice for conduct which occurred on 17 February 2004 and twice for conduct that occurred on 27 February 2004.

10. [296]

    The submissions advanced by the AWU in that respect were relevantly as follows (see Bluescope at [30-[32]):

11. [297]

    Under the heading “Appeal against calculation of penalty” the Full Bench of the Industrial Court found as follows:

12. [298]

    Given the submission of the parties regarding the judgment in Bluescope, it is appropriate to make some additional observations about the reasoning of the Full Bench of the Industrial Court in that matter:

    1. (1)

       The judgment under appeal concerned proceedings for the contravention of orders made by the Commission (the first and amended orders) which were made in the context of a strike of a section of the workforce at the Port Kembla steel workers which was actually occurring at the time of the industrial dispute proceedings. Hence, unlike the present matter, orders were made to “cease and refrain and immediately cease and refrain” from the taking of industrial action in contrast to “cease organising and refrain from taking industrial action”, as found in Order A1 in this matter and the Order A1 which was under consideration in PSA (No 1), PSA (No 2) and Industrial Relations Secretary (although in those matters the Commission also ordered the Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales (“PSA”) not to “take further industrial action”).

    2. (2)

       Thus, the orders made in Bluescope were also couched in terms of requiring the industrial organisation to take steps to bring about the cessation and to ensuring there was not a resumption.

    3. (3)

       One of the issues addressed by the Full Court was whether it was appropriate, in the circumstances, to penalise the industrial organisation on the same day of the contravention for both the strike itself, aiding and abetting the strike or taking necessary steps for its prevention and failing to take steps to, inter alia, convene meetings and direct compliance with the amended order to cease industrial action without any apparent allowance for concurrence between the contraventions.

    4. (4)

       The essential issue was whether, in the circumstances, it was appropriate to treat both of those acts (if proven) of constituting separate contraventions.

    5. (5)

       In substance, the Industrial Court treated the conduct of industrial organisations and described the breach of “ancillary orders” as part of a single course of conduct with the strike or manifestations of the strike are also in breach of the order , although the Court treated each separate day of the strike as a separate contravention, no doubt because of the form of orders made by the Commission.

    6. (6)

       There was a discrete issue before the Court (resolved in pars [63]-[67]) as to whether the presiding judge should have treated the amended orders as representing further or fresh orders to the first orders.

13. [299]

    In PSA (No 1), Fagan J found that the PSA had contravened two orders of the Commission, which were set out in PSA (No 1) as follows (at [19]):

14. [300]

    The nature of the contraventions of those orders was described by Fagan J in PSA No 1 as follows:

15. [301]

    By reference to s 139 of the Act, Fagan J expressed the following view (at [4]):

16. [302]

    As to the nature of the contravention his Honour found (at [5]) of PSA No 2:

17. [303]

    Furthermore, as to the nature of the contraventions his Honour stated (at [6]):

18. [304]

    Under the heading “Multi-day penalties are available for ongoing encouragement to strike”. His Honour made clear that the was not dealing with the strike itself as a separate contravention. He stated (at [9]):

19. [305]

    As to Bluescope and the question of whether there was separate contraventions of orders, his Honour found (at [12]):

20. [306]

    However, as to the submission by the contravener that s 139(4) of the Act did not permit a penalty to be imposed for multiple days of contravention of an ancillary order, Fagan J found (at [13]):

21. [307]

    As to the imposition in penalties in Bluescope his Honour stated (at [14]):

22. [308]

    Further observations were made with respect to Bluescope at [15]-[17]:

23. [309]

    These same issues were traversed in the judgment of Bathurst CJ in Industrial Relations Secretary.

24. [310]

    In providing the background to the appeal, his Honour stated that at some point on 2 February 2017, the PSA had put on its website an information flyer directing its members in disability services to strike.

25. [311]

    After dispute orders were made on 2 February 2017, the PSA placed a bulletin on its website stating the strike was proceeding. The bulletin remained until 15 February 2017. His Honour recognised a strike took place on 14 February 2017, but recognised that the employer would have had to amend the summons to bring a separate contravention regarding the strike (at [38]).

26. [312]

    In discussing PSA (No 2), his Honour discussed the significance of a flyer that the PSA had placed on its website. His Honour summarised the effect of the judgment in PSA (No 2) in that respect as follows (at [35] and [36]):

27. [313]

    As to the penalties imposed by Fagan J, the Court of Appeal summarised the position (at [40]):

28. [314]

    Relevantly, the following issues were identified by the Court from the summary of the PSA’s submissions (at [89] and [92]):

29. [315]

    The Court then identified the Orders A1 and A2 under consideration in Industrial Relations Secretary were not dependent on the strike occurring. As to the contentions of the PSA, in that respect, the Court observed (at [114]):

30. [316]

    As to the argument the Court found (at [121] and [122]):

31. [317]

    As to the scope of orders available under s 137(1) of the Act, and by resonance with earlier parts of this judgment, the Chief Justice found at [124] and [125]:

32. [318]

    In consideration of Bluescope and the existence or otherwise of multiple contraventions, his Honour observed at [127]-[132] as follows:

33. [319]

    As to the imposition of penalties for the contraventions, his Honour recorded with respect to Grounds 3 to 6 of the appeal, the submissions for the appellant as follows (at [134] and [135]):

34. [320]

    As to those contentions, the judgment of Fagan J was upheld in the following passage from Industrial Relations Secretary (at [149]-[151]):

Consideration: Multiple Contraventions Question

1. [321]

   Given the conclusion I have reached as to this issue, it is unnecessary for me to express a view as to the Prosecutor’s contention that the judgment of the Industrial Court in Bluescope should be confined to its facts, or alternatively not followed.

2. [322]

   Nor is it necessary to reach a conclusion, in that light, as to whether this Court is bound to the judgment of the Full Bench of the Industrial Court in Bluescope although, as a preliminary view, I favour the submission advanced by the Prosecutor that this Court is not bound to the judgment in Bluescope. If the judgment of the Industrial Court, whether as a Full Bench or otherwise, and even though designated a superior court of record, may be the subject of judicial review (see Kirk at [102] and [107]), then it is, at least, illogical that a decision of the Industrial Court would be able to bind this Court within the areas of its jurisdiction.

3. [323]

   Consistently with this approach, Leeming JA in his text Authority to Decide: The Law of Jurisdiction in Australia refers (at p 31) to the “important distinction…between the Supreme Courts recognised by the Australian Constitution, as opposed to other courts, even other ‘superior courts’.”

4. [324]

   Similarly, in the Federal context, a decision of the Australian Industrial Court was considered not binding upon the Federal Court even when the decision was a decision of three judges and the Federal Court was constituted by only one judge: Harris v Ansett Transport Industries (Operations) Pty Ltd (1978) 45 FLR 469 at [471] per Keely J.

5. [325]

   That said the submission of the Prosecutor that neither the Court of Appeal in Industrial Relations Secretary or the primary judge in PSA (No 1) and PSA (No 2) “sought to align their approach with that adopted by the Full Bench in” Bluscope, is inapt.

6. [326]

   As Fagan J said in PSA (No 2), it was not necessary to decide whether Bluescope was “a decision of general application or whether it turned upon the manner in which the particular orders in that case had been drafted” (at [11] of PSA (No 2)). Rather, his Honour addressed the dual questions of whether Orders A1 and A2 in that matter were “repetitive of each other in substantive affect” and whether “each of them combined a primary prohibition against taking industrial action with a secondary or ancillary prohibition against encouraging or organising industrial action” (at [11]). His Honour also referred to “the contravention…committed by conduct of an homogenous kind”

7. [327]

   As earlier mentioned, Bathurst CJ in Industrial Relations Secretary found Orders A1 and A2 (which orders in those proceedings have been earlier set out in this judgment) were within the scope of the Commissions powers under s 137(1)(a) of the Act, to order an industrial organisation to “cease organising and refrain” from taking industrial action as well as the order prohibiting the PSA from taking industrial action. Thus, the power extended to ordering an industrial organisation to refrain from “directing its members to engage in industrial action or refrain from organising industrial action”, irrespective of whether a strike actually occurred as a result of that organisation: Industrial Relations Secretary at [124]-[125]. The Chief Justice left open the question as to whether, in the context of the Act, there was an implied power to make dispute orders under s 137(1)(a) was necessary for or facilitative of other types of dispute orders provided for in s 137(1)(a): Industrial Relations Secretary at [130].

8. [328]

   Further, in Industrial Relations Secretary, Bathurst CJ found in relation to the contravention of a dispute order directed at a 24-hour strike (albeit over two days) that embraced conduct occurring over a number of days before the PSA strike as follows (at [149]):

9. [329]

   The common law course of conduct principle was distilled by Owen JA in Royer (at [22]):

10. [330]

    Wells J described the principle as follows in Attorney-General v Tichy (1982) 30 SASR 84 (at [92]-[93]):

11. [331]

    Whilst articulated in a criminal context it is well-settled that this analysis applies in civil penalty proceedings: Construction, Forestry, Mining and Energy Union v Williams (2009) 191 IR 445; Construction, Forestry, Mining and Energy Union v Cahill (2010) 194 IR 461; Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Nine Brisbane Sites Appeal) (2019) 269 FCR 262; [2019] 286 IR 336 and most recently Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Registered Organisations Commissioner (2020) 283 FCR 404; [2020] FCAFC 232.

12. [332]

    In my view, there is plainly a legal and factual relationship between Order A1 (and Order A4) and Orders A2 and A3 in these proceedings: Cahill at [39] (per Middleton and Gordon JJ).

13. [333]

    There is a legal relationship because the contraventions were premised on the same kind of Orders made by the Commission under s 137(1)(a) as was found by the Chief Justice in Industrial Relations Secretary.

14. [334]

    I accept the submission of the Federation that the factual relationship as to contraventions A1 (and A4) and A2 and A3 were:

    1. (1)

       Temporally interlinked, occurring over consecutive days

    2. (2)

       Directed at the same employer, namely, the Prosecutor

    3. (3)

       Were directed to the same end, namely, preventing threatened industrial action by various steps designed to cause the Federation to cease organising of the strike and preventing its occurrence

15. [335]

    Thus, Orders A2 and A3 do not have a different quality or character to Order A1. For example, Order A2 required the Federation to undertake a specific act of retracting a direction to its members to strike for 24 hours and Order 3(c) required the Federation to publish order A1 and direct compliance with that order. Those actions are quintessentially directed at the Federation ceasing to organise the strike and not encouraging, inducing or authorising industrial action by means of amplification, namely, by the publication of the dispute order, which was already a legal requirement or an overt act of retracting a direction to strike.

16. [336]

    Those orders did require positive acts but they were of the same character as Order A1 which required the Federation to cease in organising and not encouraging, authorising or inducing industrial action. In order to cease organising industrial action the Federation had, inter alia, to comply with the requirements of Order A2. Nevertheless, as the Federation accepted, the contravention of Order A1 could be, and was, established by a failure to comply with Order A2 and A3 such that any breach of those orders was probative of the Federation breaching order A1.

17. [337]

    Some additional observations may be made with respect to Order A3. I accept the submission of the Federation that the approach by the Prosecutor that each sub-paragraph of Order A3 constituted a separate and additional order capable of being contravened, is overly broad and an impermissible construction of Order A3. Order A3 required the Federation to do four particular things by 30 November 2021. A failure to do one or more of those things would have breached Order A3. However, the converse is not true. If the Federation did not do three of the four things by 30 November 2021, it would not have breached Order A3, three times. The Prosecutor chose the form of the Order and is bound to its election in that respect.

18. [338]

    These conclusions make it unnecessary to consider the additional contention of the Federation as to invalidity with respect to Orders A2 and A3, as on this approach, similar to Order A4, Orders A2 and A3 are, inter vires, as they can be construed as a single course of conduct referrable to the prohibition in Order A1 that the Federation cease organising and refrain from taking any form of industrial action.

19. [339]

    It is also strictly unnecessary to consider the further submission advanced by the Federation, as to the temporal effect of Order A2 and A3, namely, the contention that a breach may not have occurred each and every day after 30 November 2021. That submission was put by the Federation in the alternative and on the premise that Orders A2 and A3 were not found to impose separate distinct obligations to Order A1 (the finding of the Court). Further, the Federation accepted that if the Federation did not take the required steps by 30 November 2021, as I have found, there would be a failure to comply with those orders.

20. [340]

    Nonetheless, there is substance to the submission of the Prosecutor that, where an act or thing is required to be done by a certain time, namely, 30 November 2021, the obligation to do that act or thing continues until the act or thing is done (even if the period has expired or the time has passed).

21. [341]

    Save for Contravention F, it follows, in my view, that the approach adopted by the Chief Justice in Industrial Relations Secretary (at [149]) should be applied with respect to contraventions of variously Orders A1 and A4 and A2 and A3, namely, there was a single contravention of the dispute orders made in that respect by the Commission requiring, in general terms, the Federation to cease organising and continuing to induce, authorise, direct or encourage the strike scheduled for 7 December 2021.

22. [342]

    Section 139(4)(a), envisages a contravention occurring on more than one day. Here there was a single course of conduct which occurred over a period of 8 days corresponding with the actions or conduct pleaded in Contraventions A-E.

23. [343]

    By parity of reasoning, I consider the strike itself on 7 December 2021, represents a separate contravention.

24. [344]

    It is true, as submitted by the Federation, that Order A1 was premised on the same kinds of order as made by the Commission under s 137(1)(a). However, the term of the dispute order which grounds the sixth contravention is the prohibition in Order A1 “refrain from taking industrial action”.

25. [345]

    Whilst, in a broad sense, the taking of strike action may intersect to some degree with a requirement to cease organising, the order to refrain from taking industrial action has a different quality or character as it is directed at the ultimate act which other orders (vis a vis organising, encouraging, authorising or inducing industrial action) have sought to prevent. Further, as the Prosecutor submitted, the factual matrix underpinning Contravention F is different as it encompasses the action of ceasing work and the consequences of the same.

26. [346]

    Contrary to the contention of the Federation, this approach is distinguishable from that adopted in Industrial Relations Secretary (and PSA (No 1) and PSA (No 2)). The summons initiating those matters had not sought relief with respect to the taking of the industrial action itself. No amendment to the summons was sought by the Prosecutor. This approach is also consistent with Bluescope where separate penalties were given for each contravention involving a strike per se.

27. [347]

    Contravention F occurred on a single day.

28. [348]

    The Prosecutor contended that, even if the Court found a single course of conduct with respect to any contraventions, the Court, nonetheless, had a discretion to treat all pleaded contraventions as separate contraventions.

29. [349]

    In essence, the Prosecutor pointed to the common law principle that the Court should refrain from formulating “adjustable rules or benchmarks” in sentencing (see Cahill at [47] and Royer at [28]). It was also submitted that the Court is not bound to impose one penalty for breaches arising out of one course of conduct.

30. [350]

    It was also submitted that a discretion exists in sentencing the offence to ensure that the wrongdoing involved is adequately punished and the objects for fixing penalty have been met.

31. [351]

    I will proceed upon the basis that the Court may exercise such a discretion, even where there is found a single course of conduct by the contravener, although issues may arise in that context, not argued in this matter, as to whether the exercise of a discretion in that manner is available in a penalty regime which fixes penalties for a contravention in a sliding scale (such as s 139(4)) and the Court otherwise then fixes a penalty, as here, for each day on which a contravention occurs.

32. [352]

    It must also be noted that the principles associated with the finding of a single course of conduct, are often directed to ensuring the offender is not penalised twice for what is essentially the same criminality.

33. [353]

    Even proceeding upon the basis of the statements of principle contended for by the Prosecutor, in this respect, I have formed the view in this matter that, because of the legal and factual relationship between the circumstances of charged contraventions A-E, it is not appropriate for the Court to treat the respective breaches, as essentially separate contraventions in the exercise of its discretion. My reasons are the same as those given for the finding there was a single course of conduct which occurred over a period of 8 days. I will nonetheless adopt the approach of the Chief Justice in Industrial Relations Secretary and impose a penalty for each day the contravention of Order A1 occurred, making allowance for concurrence on the day of the strike.

Conclusion: Multiple Contraventions

1. [354]

   The maximum penalty for the contraventions of Order A1 involving a single course of conduct of 8 days where the contravener is a first-time contravener is $45,000.

2. [355]

   The maximum penalty for Contravention F is $10,000.

3. [356]

   In Industrial Relations Secretary, the Chief Justice considered it inappropriate to apply the principle of totality because he had found only a single course of conduct which may ne contrasted to totality which was concerned with sentencing for separate offences: Pearce v The Queen (1988) 194 CLR 610; [1998] HCA 57 at [45].

4. [357]

   The Chief Justice rather adopted the following approach (at [150]):

5. [358]

   The submissions of the Federation, in this respect, were as follows:

6. [359]

   The Prosecutor accepted that, if there were multiple contraventions, the principle of totality should be applied across “all the contraventions to ensure the penalty once aggregated is proportionate to the overall conduct engaged in”.

7. [360]

   The Full Court of the Federal Court in Pattinson, considered this was not a suitable basis for the discussion of totality in this context of civil penalty proceedings because of the limited submissions on the topic. I will broadly approach the contraventions (vis a vis totality), in the manner as sought by the parties, but with the overriding objection being that the contravener is not penalised twice for the same contravening: Pattinson at [213].

Nature and Extent of the Contravening Conduct and Deliberateness of the Contravention

1. [361]

   I accept the submission advanced for the Prosecutor that the contraventions were, in my view, blatant and deliberate in their defiance of the Orders.

2. [362]

   The Federation accepted that it had consciously disobeyed the Commission’s order to cease organising the stoppage and prohibiting engagement in the strike but contended that that fact itself cannot render the matter in the “worst category”. It was submitted by the Federation that any contravention of the dispute order was likely to be deliberate and further that, leaving aside any issue about ambiguity in or misunderstanding of the effect of an order, “all contraventions will be deliberate”.

3. [363]

   It is true that, in most cases, contraventions of dispute orders will be deliberate in the sense they are done consciously and intentionally but here, as the Chief Justice described in Industrial Relations Secretary (at [156]), the Court is concerned with a deliberate and calculated defiance of the orders of the Commission.

4. [364]

   The submission by the Federation, in this respect, also overlooks the range of conduct that may be associated with contraventions. The circumstances described in the Bluescope matter, that has been much discussed in this judgment, involved the Union Secretary endeavouring to persuade his members not to engage in industrial action, albeit, failing to give a direction to cease such action. At the other end of the spectrum of defiance of orders of the Commission, is conduct which is wanton and deliberately designed to be disruptive or damaging.

5. [365]

   The orders made by the Commission were expressed in clear terms, well recognisable by industrial participants within the NSW industrial system.

6. [366]

   The Federation’s State Council’s decision to direct its members to engage in industrial action on 7 December 2021 taken on 27 November 2021, was a rejection of the recommendation made the day earlier on 26 November 2021. Whilst recommendations of that kind do not attract sanctions, they are relevant to the overall consideration of the nature and extent of the contravening conduct of the Federation as, generally speaking, they are a mechanism often used by the Commission to bring about an avoidance or cessation of industrial action, by weight of its authority, without the need for formal orders or ensuing contravention proceedings.

7. [367]

   Those alternative procedures are consciously taken in view of the fact that the making of a dispute order is a serious step given the consequences of contravention which extend beyond the imposition of a penalty on the industrial organisation under s 139(3)(e), as was sought in the present case.

8. [368]

   I next turn to the conduct of the Federation in contravention of orders directed to the prevention of industrial action, that is, ceasing to organise or encouraging or inducing the strike.

9. [369]

   The Federation submitted that discrete and separate acts of organisation and encouragement, were not alleged to have occurred on each day between 29 November and 7 December 2021. This submission is not entirely clear, particularly in the light of the Federation’s further submission that, other than the stoppage, the only positive conduct particularised against the Federation included the publication of things on its website, Facebook and Twitter pages, as well as media articles and the booking of venues which were pleaded to have occurred on 30 November 2021 and 1, 2, 3 and 6 December 2021 (for Contravention A)(and I have inferred such conduct for 4 and 5 December 2021).

10. [370]

    I have earlier made findings as to the conduct of the Federation. vis a vis. pleaded Contraventions A-E. The conduct concerns an admixture of positive steps of the kind referred to by the Federation, including steps specifically organising, encouraging and inducing the strike the day after the dispute orders were made, and a defiant refusal to take steps required by the Commission in Orders A2 and 3 – measures designed to prevent the occurrence of the strike by counteracting the very means taken by the Federation to organise the strike.

11. [371]

    The Executive of the Federation took a conscious decision in the face of the dispute orders, to proceed with the 24-hour strike on 7 December 2021. On 30 November 2021, the President and Secretary stated that “we cannot be deterred” and “we must come together as one on Tuesday 7 December and send the Government a message they can’t ignore”. The Federation’s conduct in not revoking its direction to members to strike on 7 December 2021 (which remained active until the strike), not removing references to the strike to occur on 7 December 2021 from its website, not communicating the Commission’s dispute orders to its members and continuing to organise the strike until 7 December 2021, were knowing and deliberate contraventions of the dispute orders made by the Industrial Relations Commission on 29 November 2021, in the sense discussed above. Further, the Federation State Council’s decision to direct its members to engage in industrial action on 7 December 2021 on 27 November 2021, was in deliberate defiance of the Commission’s recommendation made the day earlier on 26 November 2021.

12. [372]

    Turning to Contravention F, the strike was the ultimate act of defiance of the orders and brought with it significant adverse consequences discussed below.

13. [373]

    There are some factors, however, which modestly ameliorate the objective seriousness of this contravention. The industrial action was for a short duration of one day and was envisioned to be of that duration. Whilst the Federation was required to give notice, the industrial action was not taken in a fashion which may be described as precipitous and designed to inflict maximum damage on or disruption to the operations of Government in the teaching service. Nonetheless, the Prosecutor was required to take significant logistical steps to ameliorate the impact of the strike.

Loss and Damage Caused

1. [374]

   On 7 December 2021, some 43,809 teachers or 67.08% of the teaching service participating in a 24 hour strike. Approximately 390 public schools were non-operational across the state and 550,000 or 86% of students were absent from school for the day missing out on active learning and teaching time at school.

2. [375]

   The disruption to student classes came in a year where students across New South Wales had spent between 20 days and 15 weeks of learning from home with the majority of students experiencing longer periods of learning from home. Students in Greater Sydney (including Wollongong and Central Coast) experienced 15 weeks of learning from home.

3. [376]

   Since the start of the Delta outbreak of COVID-19, between June and 24 November 2021, 636 NSW schools (496 public schools, 140 Independent and Catholic Schools) had ceased operations due to confirmed cases of COVID-19. Further, students in schools continued to experience some disruption as a result of positive cases of COVID-19 to the time of the strike.

4. [377]

   The 24 hour strike on 7 December 2021, was in the second last week of the school term of 2021.

5. [378]

   I accept that some impact of the strike in terms of parents would have been alleviated, to some extent, as submitted by the Federation, by the coincidence of the holding of a bus strike in the South West and a train strike (apparently affecting 75% of the train network) and working from home arrangements for many members of the workforce as at 7 December 2021. I also accept that examinations both HSC and otherwise had been completed by that time.

6. [379]

   However, the impact of the strike was widespread and resulted in the cessation of a great number of schools across NSW.

7. [380]

   It was not only disruptive to educational delivery, but also interfered with schools holding or organising a range of end of year activities to bring the 2021 school year to a close. An example given by Ms Archibald was Year 6 Graduation ceremonies, although she only enumerated one specific incidence. I accept her evidence that these are important aspects of school life that support students’ wellbeing and connection with their schooling.

8. [381]

   It may be reasonably inferred that the strike would have caused inconvenience to the community and particular working parents (including those working from home) who were then required to look after the children or obtain childcare for the period of the school day, as well as disadvantage to students, who were unable to attend school, with respect to educational delivery and end of year activities. I also consider it significant that this interruption occurred after children had been required to cope with significant periods of home learning during the COVID-19 pandemic.

Circumstances in which the relevant contravention took place

1. [382]

   The Prosecutor contended that to breach orders of the Commission which are made as part of a framework of an industrial relations system, designed to protect and assist employees involved in industrial dispute, was an abuse which is not mitigated “by the conviction with which underlying political views are held”. It was submitted that the claims for the removal of cl 6 of the Regulation, are not capable of being arbitrated although are capable of redress via media and through political channels.

2. [383]

   The Federation submitted that the action it took was a result of serious and well founded concerns about the related issues of inadequate salaries, teacher shortage and excessive workloads. It was submitted, therefore, the action was not taken capriciously lightly or as a result of frivolous concern. Reliance was also placed, as I have mentioned, upon the right to strike and the opportunities afforded, in that respect, under the Federal industrial relations system.

3. [384]

   I accept that members of the Federation have brought claims against their employer with respect to the above mentioned issues, which genuinely reflect concerns about those matters and that the Federation is earnestly seeking to improve the conditions of its members, in those respects, in the context of an industrial system in which the arbitral powers of the Commission as circumcised by historical standards. However, that does not afford a justification for the contravention of orders validly made by the Commission in the context of a system which offers the members of the Federation (and the Federation itself by its registration) access to a comprehensive system of conciliation and arbitration which affords protection and assistance in the context of industrial disputes and recourse with respect to contested actions of the employer.

4. [385]

   The Federation is entitled to prosecute its views about the availability of arbitral processes in the Commission, in the media and through legitimate political channels but its deliberate defiance of orders of the Commission is inconsistent with its role as a registered industrial organisation under the NSW industrial relations system and the maintenance of the integrity of that legal system.

5. [386]

   Reference to the accessibility to industrial action in support of wage or other claims under the Federal industrial laws, does not assist the Federation as that system and the Act became divergent systems of industrial regulation decades ago operating under significantly different parameters (see Pastoral Industry (State) Award Application by Australian Business Industrial for a new award and another matter [2001] NSWIRComm 27 at [78]-[79]).

6. [387]

   Further, the Prosecutor has offered a salary increase of 2.04% (and .46% increase in superannuation contributions) per year over 3 years and an arbitration has been fixed to hear the contest of salaries.

Previous Breach of Dispute Orders

1. [388]

   As earlier mentioned, the Federation has contravened dispute orders on six occasions, the last of which was in 2012. The circumstances of that offending is set out below:

   1. (1)

      Teachers Federation [2012] NSWIRComm 92, where Backman J imposed a penalty of $12,500 with respect to a contravention constituted by a “up to two hours” stop work involving approximately 45% of staff (23,218 employees). The maximum penalty for the offence was $20,000. In assessing the penalty, the Court considered that weight must be given to specific deterrence, as a result of past contraventions by the Teachers Federation.

   2. (2)

      Teachers Federation [2012] NSWIRComm 58, where Haylen J to impose penalties of $4,000 for contravention on 7 September 2011 and $2,000 for contravention on 8 September 2011, where the maximum penalty was $20,000 and $10,000 respectively. It was noted that the industrial action resulted in 1,586 schools being non-operational due to approximately 75% of school teachers and 38% of TAFE teachers being absent. The Court in assessing the penalty noted the need for deterrence and the significant impact the industrial action had on schools and TAFE operations.

   3. (3)

      Teachers Federation [2010] NSWIRComm 44, where Staff J imposed a penalty of $4,000 with respect to a contravention constituted by a 24-hour strike involving 4000 employees where the maximum penalty was $10,000. The Court considered that the Teachers Federation engaged in “serious industrial misconduct” (at [38]), however, did not fall in the “worst class case” (at [38]). The Court found that the penalty should be in the “mid-range” (at [42]).

   4. (4)

      Teachers Federation [2012] NSWIRComm 93, where Boland J imposed a penalty of $17,500 with respect to a contravention constituted by a 24 hour strike on 27 June 2012, where the maximum penalty was $20,000. In assessing the penalty imposed the Court had regard to the conduct engaged in by the Teachers Federation, prior offending, inter alia, and found that it weighs heavily in favour of a penalty at the high-end range. The Court noted that specific deterrence must constitute a significant element of the penalty. The Court discounted the penalty as a result of the Teachers Federation admitting to the breach.

   5. (5)

      Teachers Federation [2010] NSWIRComm 77, where Marks J imposed a penalty of $7,000 with respect to a contravention constituted by a 3 hour stop work action on 10 November 2009, where the maximum penalty was $10,000. The Court considered the breach of the dispute order “as a most serious matter” (at [25]) and noted that deterrence would be taken into account “to the fullest possible extent when assessing the appropriate penalty” (at [27]).

   6. (6)

      Teachers Federation [2000] NSWIRComm 103, where the proceedings were dismissed, and no penalty was imposed for a contravention on 28 February 2020. The Court came to this finding by having regard to the apology made by the Teachers Federation and the support of the Department of Education and Training in dismissing the proceedings with no penalty.

2. [389]

   I accept the submission of the Prosecutor that, in considering this factor regard may be had to the Federation’s non-compliance with the direction B1 and the recommendation made on the 26 November 2021.

3. [390]

   The Prosecutor submitted that, although the last breach was ten years ago, the history displays a pattern of defying dispute orders “when it suits their purposes”.

4. [391]

   The Federation submitted that the fact that the last contravention by the Federation took place nearly 10 years ago warranted little weight being given to the history of industrial action.

5. [392]

   The nearly decade long abstinence by the Federation from industrial action, taken contrary to orders of the Commission should not be lightly ignored, as it demonstrates, at least, the prospect of a shift from the immediate past history of the Federation’s approach to industrial action.

6. [393]

   However, that does not negate the need for specific deterrence. The Federation is presently engaged in a campaign, as I will discuss below, which needs to be considered in the context of Federation’s stated policy (as reflected in its published history), namely, since the major breach with the past in 1968 by the taking of a state wide strike, “industrial action has become part of the Federation’s campaigns”. That ethos was demonstrated by the 12 year period prior to the last strike in 2012 (when the Federation last organised a strike) involving six contraventions of dispute orders and the current campaign, by the Federation, as I will discuss below.

7. [394]

   On balance, I consider weight should be given to the prior offending, by the Federation mitigated by its conduct of the past near decade. That should be reflected in two ways. First, the Federations record deprives it of leniency. Secondly, it is relevant to specific deterrence which I will discuss below.

Deterrence

1. [395]

   In Industrial Relations Secretary, the Court of Appeal upheld the view of the primary judge that general deterrence was an important consideration in the assessment of an appropriate penalty in proceedings involving the contravention of a dispute order under s 139 of the Act. It was held that, if the industrial relations system embodied under the Act is to achieve its objects, any penalty needs to incorporate a significant level of general deterrence: Industrial Relations Secretary at [157].

2. [396]

   The Federation relied upon observations of the Industrial Court from time to time that contraventions of dispute orders are rare and any element for general deterrence must be small at most: see Bluescope [2005] NSWIRComm 210 at [53]; Bluescope Steel Ltd v Australian Workers' Union, NSW [2006] NSWIRComm 338 (“Bluescope [2006] NSWIRComm 338”) at [34]; Teachers Federation 2010 NSWIRC 44 at [47]; Secretary of the Treasury v PSA (No 2) (2013) 231 IR 349; [2013] NSWIRComm 25 at [49].

3. [397]

   The historical position reflected in those authorities of the Industrial Court, represented an era in which industrial parties were often concerned to give active compliance to recommendations and directions of the Commission and dispute orders were thereby sparingly imposed. The very cases relied upon by the Federation, in this respect, when viewed collectively (also including Annexure A to the written submissions of the Federation), when combined with the Federation’s history, might well raise doubts as to whether the circumstances relied upon by the Industrial Court to minimise the need for general deterrence have passed. In any event, the deliberate defiance of dispute orders, as discussed in Industrial Relations Secretary at [156], and as occurred in this case, would suggest this Court should be less sanguine as to the likely approach of industrial organisations as to orders of the Commission. In my view, general deterrence must be given substantial weight in the penalty imposed upon the Federation. There is a need to discourage other potential offenders from committing offences under the Act.

4. [398]

   The Prosecutor relied upon the judgment of the Full Federal Court in Pattinson, (concerning the power of the Federal Court to impose penalties for breaches of civil remedy provisions in the context of s 546 of the Fair Work Act) to submit that deterrence required the fixing penalties at a level that cannot be regarded by the contravener and others as “an acceptable cost of doing business”. Reliance was placed, in that respect, upon [103] of Pattinson. I consider that to be the applicable approach, as long as the imposition of a penalty is cognisant of the maximum penalty for the contravention and the balance of the judgment in Pattinson, in this respect, is given effect. In the latter respect, in Pattinson it was held necessary to balance the appropriate penalty to deter, including ensuring the penalty is not such as to be regarded as an acceptable cost of doing business, with the need to ensure that the appropriate penalty, whilst acting to deter, is not oppressive in respect of the instant contravention: Pattinson at [102].

5. [399]

   It was common ground that weight needs to be given to specific deterrence in the determination of penalty (see the approach of Boland J in Bluescope [2005] NSWIRComm 210 at [52]).

6. [400]

   There are three factors demonstrating the need for specific deterrence which are as follows:

   1. (1)

      I have earlier referred to historical factors pointing to the need for specific deterrence, even in the presence of some remission of industrial action during the last near decade.

   2. (2)

      The evidence shows that the Federation is a significant organisation for which a small fine would be of little consequence. The membership of the Federation includes 39,000 permanent fulltime teachers, about 4,000 temporary teachers, 6,000 casual and unemployed teachers and 6,000 TAFE teachers.

   3. (3)

      The Prosecutor also contended that the need for specific deterrence is reflected in the fact that there is in prospect further industrial action in the first term of 2022. It was submitted that the strike which occurred on 7 December 2021, is part of the “morethanthanks” campaign seeking, inter alia, an increase in teachers and related employees’ salaries in the context of disputed award proceedings that are not listed before the Commission until May 2022.

7. [401]

   In my view, there should be an element of specific deterrence in the penalty imposed to deter the Federation from a reversion to a culture or disposition to resolving industrial disputes by a preparedness to undertake industrial action contrary to dispute orders of the Commission

Maximum penalty

1. [402]

   The maximum penalty is relevant in the sense described by the High Court in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [31] (per Gleeson CJ, Gummow, Hayne and Callinan JJ):

2. [403]

   The well known statement of principle in Markarian has been applied in a civil penalty context: Pattinson at [105]; ACCC at [154]-[156].

3. [404]

   The maximum penalty for an offence is reserved for the gravest type of case for which that penalty is prescribed: Ibbs v The Queen (1987) 163 CLR 447; [1987] HCA 46 at [451]-[452]; see also: R v Dodd (1991) 57 A Crim R 349 at [354], adopting the approach of Jordan CJ in R v Geddes (1936) 36 SR (NSW) 554 at [556], Pattinson at [105] and [162].

4. [405]

   That does not mean that a lesser penalty must be imposed if it be possible to envisage a more serious case; ingenuity can always conjure up a case of greater iniquity. A case which imposes the maximum penalty offends this principle only if the case is recognisably outside the gravest category: Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 at [478]; see also Hawkins v R (1993) 67 A Crim R 64 at [67].

5. [406]

   Neither party suggested that the contraventions fell into the worst class of case in this matter, an approach which, in my view, is appropriate having regard to the nature of the offending described above.

6. [407]

   To repeat, the maximum penalty for the contravention consisting of a single course of conduct over 8 days is $45,000. The maximum penalty for the sixth contravention, the strike, is $10,000.

Objective factors - conclusion

1. [408]

   In my view, the offending by the Federation is serious. The contraventions of the dispute orders by organising, encouraging and inducing the strike over 8 days is, in my view, objectively serious. I consider that the sixth contravention (the actual strike) is of a greater level of seriousness.

Subjective factors

1. [409]

   It was common ground that the admission by the Federation, as to the contravention of Order A1 (subject to a question of validity) should be recognised as having a utilitarian value because the Prosecutor was not put wholly to proof: see Bluescope [2006] NSWIRComm 338 at [41]; Teachers Federation 2010 NSWIRC 44 at [49].

2. [410]

   However, I do not accept that the admissions are an expression of remorse. The Federation has not expressed remorse or contrition. The Federation submitted that the action taken by its members, in contravention of the dispute order, was based upon serious and well founded concerns about various industrial issues and that the action was not taken capriciously, lightly or as a result of frivolous concerns. None of those statements or any other submissions associated with the strike or its preparation made by the Federation contain, in my view, expressions of remorse or contrition but rather they are statements of justification for non-compliance with the dispute orders.

Assessment of Penalty

1. [411]

   In sentencing the Federation all of the relevant factors must be taken into account by way of the instinctive synthesis, which the High Court referred to in Markarian at [51]. That requires that all of the factors relevant in the Federation's case to be considered, their significance discussed and a value judgment as to the appropriate sentence for the offender's offending made. The result arrived at must also ensure that there is a reasonable proportionality between the sentence imposed upon the offender and the circumstances of the crimes he committed: R v Scott [2005] NSWCCA 152 at [15].

2. [412]

   In Industrial Relations Secretary the Chief Justice discussed prior penalties for contraventions of dispute orders as follows (at [158]-[159]):

3. [413]

   In Industrial Relations Secretary, the Court of Appeal imposed a penalty with respect to a continuous course of conduct over 14 days, of $25,000. The maximum penalty was $20,000 for the first day of the contravention and an additional $10,000 for each subsequent day that the contravention continued.

4. [414]

   In sentencing the Federation, I have had regard to the statutory guidelines of the maximum sentence together with the circumstances bearing upon the objective seriousness of the offence and subjective features.

5. [415]

   I consider that the contravention concerning the organisation of the strike by a single course of conduct which occurred over 8 days (with considerable concurrence on the last day) should attract a penalty of $25,000.

6. [416]

   The penalty for actually engaging in the strike itself (the sixth contravention) will attract a penalty of $8,000.

7. [417]

   I have applied the principle of totality, as earlier discussed in this judgment. I consider there should be substantial accumulation of the contravention involving a continuous cause of conduct with the second contravention, save for the eighth day of continuous contravention, where there is a significant amount of concurrence.

8. [418]

   In the circumstances, an enforcement order should be made under s 139 for a financial penalty of $30,000 pursuant s 139(3)(e).

9. [419]

   The orders of the Court are:

   1. (1)

      The Court declares that the Australian Education Union New South Wales Teachers Federation Branch has contravened the dispute orders made by the Commission on 29 November 2021 in the respects alleged by the Prosecutor in Contraventions A and F of the amended summons, excluding particulars not available on the admitted evidence, in accordance with this judgment.

   2. (2)

      Pursuant to s 139(3)(e) of the Act, the Court imposes a penalty upon the Australian Education Union New South Wales Teachers Federation Branch of $30,000.