Secretary of the Ministry of Health v The New South Wales Nurses and Midwives’ Association

On 15 February and 31 March 2022, employees of NSW Health entities (which includes the Local Health Districts and Specially Networks) who were members of The New South Wales Nurses and Midwives’ Association (referred to as the defendant or “the Association”) went on strike. They did so based on serious concerns about pay and workplace conditions. The defendant, which has existed as an industrial association registered under New South Wales law since 1931, has never previously been found to have contravened a dispute order.

In the lead up to both those strikes, the prosecutor, the Secretary of the Ministry of Health (referred to as the prosecutor or “the Secretary”), notified the Industrial Relations Commission (“the Commission”) of an industrial dispute and then sought dispute orders. On 14 February and 25 March 2022, the Commission made dispute orders (“the February Orders” and “the March Orders”, respectively) under ss 136(1)(c) and 137(1) of the Industrial Relations Act 1996 (NSW) (“the Act” or “the NSW Act”). The Commission ordered the defendant, its officers, employees, agents and members employed in NSW Health entities to, amongst other things, “immediately cease organising and refrain from taking any form of industrial action”.

When those orders were made, the Commission gave no reasons for its decision. In this judgment, I have concluded that the February Orders were a nullity because the Commission did not address a substantial component of the defendant’s case against the making of those orders. Although I have found that the Commission committed an error of law in the making of the March Orders, those orders were not infected by jurisdictional error.

By an Amended Summons filed in Court on 12 July 2022, the prosecutor sought the imposition of monetary penalties against the defendant under ss 139(3)(e) and (4) of the Act. As the February Orders were infected by jurisdictional error, they were only purported orders in fact, not valid orders in law. Accordingly, there can be no contravention by the defendant. The Amended Summons must be dismissed with respect to the alleged contraventions of the February Orders.

I am satisfied that the defendant deliberately and flagrantly contravened the March Orders, which I have found to be legally valid, by organising industrial action over seven consecutive days,. In all the circumstances, it is appropriate to impose a penalty that reflects this serious contravention.

It is helpful to begin by considering the Act, which provides a legal framework for the conduct of industrial relations in New South Wales. I will elaborate about the broader powers and functions of the Commission, including its award-making functions, because reference will be made to those powers and functions throughout this judgment.

Chapter 4 of the Act establishes the Industrial Relations Commission and sets out its functions, membership, organisation, procedure and powers, including appeals from the Commission’s decisions.

The general functions of the Commission are set out in s 146 of the Act as follows:

The Commission may determine its own procedure subject to the Act: s 162(1). Some of the powers of the Commission are set out in s 162(2) of the Act as follows:

As presently constituted, the members of the Commission are the Chief Commissioner and Commissioners appointed by the Governor: ss 147, 148. The Commission is usually constituted by a single member: s 155(1)(a).

The Act provides a wide range of mechanisms to address issues contained within awards and industrial instruments. The Commission may make an award in accordance with the Act setting out fair and reasonable conditions of employment for employees: s 10. Awards may be varied or rescinded in certain circumstances: s 17. Awards must also be reviewed “to modernise awards, to consolidate awards relating to the same industry and to rescind obsolete awards”: s 19.

The meaning of “setting fair and reasonable conditions of employment for employees” in s 10 of the Act was explained by the Full Bench (Walton J, President, Commissioners Stanton and Newall) in City of Sydney Wages/Salary Award 2014 (2014) 247 IR 386; [2014] NSWIRComm 49 (“City of Sydney Award”) at 390-391 [19]-[22]:

The Commission has over the years developed Wage Fixing Principles, which provide guidance as to the making or variation of awards. The most recent set of principles were enunciated in State Wage Case 2022 [2022] NSWIRComm 1081 (Chief Commissioner Constant, Commissioner Sloan and Commissioner Webster). These principles, which have their origin in the State Wage Case 1983 (1983) 5 IR 1, continue to play an important role for the Commission’s work.

However, in recent years, the powers of the Commission have been constrained to a considerable extent. The effect of s 146C(7) of the Act is that the award-making powers of the Commission are constrained by that section and any policy 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] (French CJ) and [58] (Hayne, Crennan, Kiefel and Bell JJ, as Kiefel CJ then was). The policy can be found in the Industrial Relations (Public Sector Conditions of Employment) Regulation 2014 (NSW) (“the Regulation”).

In relation to public sector employees, they may only be awarded increases in remuneration or other conditions of employment if employee-related costs in respect of those employees are not increased by more than 2.5% per annum (or 3% per annum for the 2022-2023 and 2023-2024 financial years) as a result of the increases awarded: cls 6 and 6A of the Regulation. In doing so, it is necessary for the Commission to take into account increases in superannuation contributions: Secretary for The Treasury v Public Service Association & Professional Officers’ Association Amalgamated Union of NSW (2014) 89 NSWLR 688; [2014] NSWCA 138 at 699 [38] (Bathurst CJ, with whom Beazley P, as Her Excellency then was, and Meagher JA agreed).

Increases beyond the prescribed percentage can “only” be made “if sufficient employee-related cost savings have been achieved to fully offset the increased employee-related costs beyond 2.5% per annum”. This is a high bar. It is noted that “whole of government savings” would not constitute “employee-related cost savings” because, to do so, would be contrary to the purpose of s 146C as a “fiscal restraint”: Re Crown Employees (Correctional Officers, Department of Corrective Services) Award 2007 for Kempsey, Dillwynia and Wellington Correctional Centres (2014) 248 IR 145; [2014] NSWIRComm 44 at 166-168 [62]-[63] (Walton J, President, Staff J and Commissioner Tabbaa) (“Re Correctional Officers”).

However, it is not an insurmountable hurdle. For example, in Re Operational Ambulance Officers (State) Award (No 4) (2016) 255 IR 193; [2016] NSWIRComm 2 (“Re Ambulance Award”), the Full Bench (Walton J, President, Kite AJ and Commissioner Tabbaa) found that the value of overtime savings generated by new rostering arrangements could offset the increase above 2.5% per annum in employee-related costs that resulted from the creation of a new employment classification of “Critical Care Paramedic (Aeromedical)” with higher pay: at 221-222 [116]-[117]. Nevertheless, as I observed earlier this year, the Commission’s power is “highly circumscribed” by s 146C of the Act and the government’s policy promulgated by the Regulation: Secretary NSW Department of Education v The Australian Education Union New South Wales Teachers Federation Branch [2022] NSWSC 263 at [29] (Walton J) (“Education Secretary v AEU [2022]”).

An appeal against a decision of the Commission constituted by a single member lies to the Full Bench, which is to consist of at least three members: ss 155(1)(b), 156(1), 187(1). An appeal brought pursuant to Ch 4 Pt 7 of the Act requires leave of the Full Bench unless made by the Minister: ss 188(1), (4). The Full Bench is to grant leave to appeal “if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted”: s 188(2).

The requirement for leave to appeal and the Parliament’s intent can be seen by the very comprehensive second reading speech by the then-Attorney General and Minister for Industrial Relations, the Hon Jeffrey W Shaw QC (later a Judge of this Court), for the Industrial Relations Bill 1995 (NSW) (“the 1995 Bill”). The speech (New South Wales, Parliamentary Debates, Legislative Council, 23 November 1995 at pages 3852-3853) relevantly stated as follows:

For completeness, I note that the 1995 Bill lapsed when the Parliament was prorogued and was re-introduced in nearly identical terms as the Industrial Relations Bill 1996 (NSW) (“the 1996 Bill”), which later became the Act: see New South Wales, Parliamentary Debates, Legislative Council, 17 April 1996 at page 82 (The Hon Jeffrey W Shaw QC). Nothing turns on this technicality. The second reading speech of the 1995 Bill, when read with the additional remarks of the second reading speech of the 1996 Bill, may be considered in determining Parliament’s intent and the meaning of statutory provisions: Interpretation Act 1987 (NSW) s 34 (“Interpretation Act”).

Generally, the Full Bench is likely to grant leave where the issues in the appeal are of some novelty, raise substantial issues of law and principle, and have implications for the wider jurisprudence of the Commission. The proper principles can be summarised as follows:

Consistent with the second reading speech, in exercising its powers under s 192 of the Act, the Full Bench must identify a “House v The King error” (that is, an error that falls within one of the grounds contained in the oft-cited passage in House v The King (1936) 55 CLR 499; [1936] HCA 40 by Dixon, Evatt and McTiernan JJ at 504-505) at least in relation to discretionary decisions: TD Preece & Co Pty Ltd v Industrial Court (NSW) (2008) 177 IR 172; [2008] NSWCA 285 at 187 [77] (Basten JA); Public Service Association and Professional Officers' Association Amalgamated Union (NSW) v Secretary of the Treasury (2014) 242 IR 318; [2014] NSWCA 112 at 326 [27] (Basten JA with whom Ward JA, as her Honour then was, and Bergin CJ in Eq agreeing) (“PSA v Treasury Secretary [2014]”); Public Service Association and Professional Officers Association Amalgamated Union of New South Wales v Roads and Maritime Services (2015) 250 IR 412; [2015] NSWIRComm 16 at 416 [10] (Walton J, President, Kite AJ and Commissioner Newall).

Chapter 3 of the Act is titled “Industrial disputes” and sets out a procedure for the Commission to conciliate and arbitrate industrial disputes that arise within its jurisdiction. The Dictionary to the Act defines “industrial action” and “industrial dispute” in the following terms:

Section 130(1) of the Act allows certain bodies, including an employer and industrial organisation, but not individual employees, to notify the Commission of an industrial dispute. Alternatively, the Commission itself may act on its own initiative to resolve an industrial dispute: s 130(2).

The Commission has the power to convene a compulsory conference: s 131(1). To facilitate the effective resolution of a dispute, the Commission may require the attendance of any person whose presence the Commission considers would help in its resolution: s 132(1). Alternatively, the Commission may confer with a person without requiring their attendance: s 132(3).

Section 133 of the Act requires that the Commission “must first attempt to resolve an industrial dispute by conciliation”. In doing so, the Commission is under a statutory command “to do everything that seems to be proper to assist the parties to agree on terms for the resolution of the dispute”: s 134(1). The Commission may make recommendations or give directions: s 134(2). This includes making recommendations or giving directions to the parties to bargain in good faith: s 134(4). The Commission can make arrangements or give directions to convene and conduct conferences with the parties: s 134(3).

Sometimes, conciliation will resolve an industrial dispute. Other times, it may not. Only if an industrial dispute is not resolved by conciliation may the Commission deal with the dispute by arbitration: s 135(1). Before arbitration, the Commission must issue a certificate of attempted conciliation: s 135(2). A certificate is should not be lightly issued because they signal a failure of the primary dispute settling mechanism under the Act. Before a certificate is issued the relevant party must be given a reasonable opportunity to be heard as to whether a direction or recommendation under s 134(2) of the Act should be taken into account: NSW Teachers’ Federation v NSW Department of Education and Training (2000) 100 IR 441; [2000] NSWIRComm 169 at 445 [15] (Wright J, President, Walton J, Vice-President, and Commissioner Connor).

Conciliation (or, more aptly, its failure) is, therefore, the “jurisdictional prerequisite” to the exercise of any powers by the Commission in arbitral proceedings: Construction, Forestry, Mining and Energy Union (NSW) v Newcrest Mining Ltd (2005) 139 IR 50; [2005] NSWIRComm 23 at 57 [20] (Walton J, Vice-President, Boland J, as his Honour then was, and Staff J). The Act discusses the interplay between the issuing of a certificate and industrial action in two provisions:

In Education Secretary v AEU [2022], I outlined the aspects of s 135 of the Act at [48] as follows:

In arbitration proceedings, the Commission has a broad range of powers under s 136 of the Act. That section states:

With respect to a dispute order in s 136(1)(c) of the Act, ss 137 and 138 of the Act provide as follows:

The second reading speech of the 1995 Bill (New South Wales, Parliamentary Debates, Legislative Council, 23 November 1995 at pages 3850-3851 (The Hon Jeffrey W Shaw QC)) relevantly stated as follows:

It is clear that the Act makes the Commission the principal organ to assist with the resolution of industrial disputes. It is also clear that Parliament intended for industrial disputes to be resolved by negotiation between the parties themselves or conciliation with the assistance of the Commission (following notification under s 130). This is evidenced by the fact that the Commission’s arbitral powers are not enlivened unless the Commission is satisfied that “there is no reasonable likelihood that the dispute will be resolved by conciliation”: s 135(6). To facilitate effective conciliation, Parliament conferred broad and significant powers on the Commission to require attendance of people, make recommendations and directions, and to facilitate conferences between the parties. This is so that the Commission is well placed to assist parties in resolving their disputes by conciliation.

In Fire & Rescue NSW on behalf of the Department of Premier and Cabinet v Fire Brigade Employees' Union of New South Wales (2013) 235 IR 261; [2013] NSWIRComm 63 (“FRNSW v FBEU [2013]”), the Full Bench (Boland J, President, Walton J, Vice-President, and Staff J) explained at 273-274 [46] that:

It is in this context that the industrial relations system in New South Wales, the powers of the Commission and, most relevantly, the nature of dispute orders, must be understood.

It is plain from the above analysis that Parliament intended that the making of dispute orders to be a last resort: Bluescope Steel (AIS) Pty Ltd v Australian Workers' Union, New South Wales [2005] NSWIRComm 260 at [29] (Boland J, as his Honour then was). Accordingly, there is no presumption that, in the face of threatened industrial action, a dispute order will be made: Industrial Relations Secretary v Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales [2022] NSWIRComm 1042 at [23] (Commissioner Sloan) (“Industrial Relations Secretary v PSA [2022]”).

The use of the word “may” in ss 136(1) and 137(1) indicate the discretionary nature of the power to make dispute orders: NSW Department of Education and Training v NSW Teachers Federation; Re Student Reports Bans (2006) 157 IR 329; [2006] NSWIRComm 346 at 336 [36] (Deputy President Harrison) (“Education Department v NSWTF [2006]”). In so doing, the Commission must have regard to the public interest, objects of the Act and the likely effect on the economy of New South Wales: ss 3, 146(2).

It must be remembered that dispute orders are not lightly made by the Commission: City of Botany Bay v Federated Municipal and Shire Council Employees' Union of Australia, New South Wales Division [2000] NSWIRComm 85 at [8] (Schmidt J) (“Botany Bay v FMSCEU”); BHP Steel Ltd v The Australian Workers' Union, New South Wales (2003) 136 IR 240; [2003] NSWIRComm 423 at 261 [88] (Haylen J) (“BHP v AWU [2003] NSWIRComm 423”).

In Sydney Water Corporation v Australian Services Union (NSW and ACT Branch) (2005) 146 IR 388; [2005] NSWIRComm 305 (“Sydney Water v ASU”), the Full Bench (Wright J, President, Walton J, Vice-President and Commissioner Stanton) stated at 403-404 [37] that, in furthering the objects of the Act, “it is vital that the Commission recognise the broad discretion granted by [the Act] to fashion appropriate relief by reference to the merits of the industrial dispute itself and the steps necessary to resolve it”. This involves a variety of considerations, including the “public interest in managing the industrial dispute in a fair and just manner with minimum disruption and disputation”. This passage was cited approvingly in BlueScope Steel (AIS) Pty Ltd v Australian Workers’ Union, New South Wales (2006) 153 IR 176; [2006] NSWIRComm 149 at [24]–[26] (Wright J, President, Walton J, Vice-President, and Marks J) (“BlueScope v AWU [2006] NSWIRComm 149”) and Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales v Industrial Relations Secretary (2018) 96 NSWLR 762; [2018] NSWCA 39 at 791 [128] (Bathurst CJ with whom Gleeson and Simpson JJA agreed) (“PSA v Industrial Relations Secretary [2018]”).

This observation is consistent with the view expressed by the Marks J in Director General, NSW Department of Education and Training and the Managing Director of TAFE v NSW Teachers Federation [2010] NSWIRComm 77 (“Education Director-General v NSWTF [2010] NSWIRComm 77”) at [14]-[15]:

I also respectfully agree with the observations of Boland J (as his Honour then was) in Bluescope Steel (AIS) Ltd v Australian Workers' Union (NSW) (2005) 138 IR 324; [2005] NSWIRComm 99 (“BlueScope v AWU [2005] NSWIRComm 99”) at [106(1)] where his Honour stated:

The relevant principles to the exercise of discretion can be seen in the Commission’s past decisions.

First, the ability of a union or employer to use the Commission’s powers, and whether conciliation and arbitration has been used, is a significant factor that informs the discretionary considerations of the Commission when deciding whether to make dispute orders. In Director General, NSW Department of Health v New South Wales Nurses Association (No 2) [2010] NSWIRComm 163 (“Health Director v NSWNA [2010]”), the President, Boland J, stated at [17]:

In BlueScope v AWU [2006] NSWIRComm 149, the Full Bench (Wright J, President, Walton J, Vice-President, and Marks J) held at 187-188 [26] that:

Secondly, the conduct of the parties in industrial disputes, including whether there has been any good faith bargaining, meaning negotiations and participation in conciliation, is a relevant factor. It is relevant to consider whether there has been compliance of the Commission’s previous orders and recommendations: Botany Bay v FMSCEU at [6]-[7] (Schmidt J); Industrial Relations Secretary v PSA [2022] at [34]-[35] (Commissioner Sloan).

Thirdly, the effect on the economy of New South Wales is a mandatory relevant consideration under s 146(2) of the Act. In FRNSW v FBEU [2013], it was identified that there is a “need to protect the public interest from the damaging effects of industrial action”: at 272 [41] (Boland J, President, Walton J, Vice-President, and Staff J). In this respect, any negative effect on the economy, disruption to the provision of essential services, health and safety risks, and the broader implications for the public should be considered.

Those factors are also relevant in the Commission’s award-making context and guidance can be derived from those cases, which also rely on s 146(2) of the Act: see generally Application for Crown Employees (Public Sector – Salaries 2020) Award and Other Matters (No 2) (2020) 301 IR 321; [2020] NSWIRComm 1066 (Chief Commissioner Constant, Commissioners Murphy and Sloan); Crown Employees (Police Officers – 2009) Award (No 2) (2012) 220 IR 192; [2012] NSWIRComm 104 (Walton J, Vice-President, Staff J and Commissioner Tabbaa); Re Health and Community Employees Psychologists (State) Award (2001) 109 IR 458; [2001] NSWIRComm 302 at 479 [52] (Wright J, President, Hungerford J, Deputy President Sams and Commissioner McKenna).

In Re Crown Employees (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award (2004) 133 IR 254; [2004] NSWIRComm 114, an enlarged Full Bench (Wright J, President, Walton J, Vice-President, Boland J, as his Honour then was, Deputy President Grayson and Commissioner McLeay) explained at 365-366 [432] the treatment of economic considerations in the award-making process as follows:

In the same way, economic factors are not determinative in an application for dispute orders, but they may properly sway or temper whether dispute orders are made and, if made, the extent or reach of those orders.

Fourthly, when considering the consequences of industrial action, the Commission is not limited to only considering economic impacts. The “public interest” is very broad. For example, the public interest can include the effect on primary and secondary school children and their education: see New South Wales Department of Education v New South Wales Teachers Federation (2010) 194 IR 340; [2010] NSWIRComm 55 at 349 [41] (Staff J) (“Education Department v NSWTF [2010]”).

Fifthly, any provisions contained in awards about dispute resolution processes are also relevant because it would be inconsistent with the objects of the Act to “turn a blind eye” or disregard terms or obligations under an industrial instrument made under the Act: see, eg, Bluescope Steel Limited (formerly BHP Steel Limited) v The Australian Workers' Union, New South Wales (No 2) (2005) 141 IR 329; [2005] NSWIRComm 36 at 330 [4(2)] (Wright J, President, Walton J, Vice-President, and Marks J) (“BlueScope (No 2) [2005]”); Transport Secretary v The Australian Workers’ Union, New South Wales [2022] NSWIRComm 1053 at [9]-[10], [12] (Commissioner Sloan) (“Transport Secretary v AWU”); Health Secretary v New South Wales Nurses and Midwives’ Association [2022] NSWIRComm 1047 at [13]-[14] (Commissioner Sloan) (“Health Secretary v NSWMNA [2022] NSWIRComm 1047”). Legislative and regulatory provisions can also be relevant: Education Department v NSWTF [2010] at 350 [44] (Staff J).

Sixthly, the Commission has discretion to refuse to make dispute orders that are oppressive or would lack any utility. In Education Department v NSWTF [2006], Deputy President Harrison declined to make dispute orders because he was not satisfied that there existed in schools, a capacity to produce certain school reports, or that it was reasonable that they be produced. The Commission found that a dispute order ordering a person to cease or refrain from taking industrial action in those circumstances had an “unacceptable potential to create harsh, onerous and unreasonable working conditions”: at 339 [63]. The Commission also stated that it is “reluctant to make orders that cannot be complied with”: at 339 [64].

By virtue of ss 130(1)(a), 138(1)(a)-(b), 139(3)(e) and 139(4) of the Act, dispute orders can be made against an industrial organisation: PSA v Industrial Relations Secretary [2018] at 788 [117] (Bathurst CJ with whom Gleeson and Simpson JJA agreed). In that decision, Bathurst CJ discussed the meaning of the words “cease or refrain from taking industrial action” in s 137(1)(a) at 788 [115] as follows:

Schmidt J has expressed doubt, albeit not a concluded view, that dispute orders could be made on an interlocutory or interim basis: Notification under section 130 by the NSW Department of Community Services of a dispute with the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales; Re Workbans [2000] NSWIRComm 66 at [11]. That case concerned an application for such orders that arose following the adjournment of arbitration proceedings for the gathering of evidence and preparation. It is not necessary to express a concluded view on this issue in this case.

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 (“Industrial Relations Secretary v PSA [2017]”), Fagan J held that this Court would not find a contravention of an order in proceedings under s 139 of the Act without being satisfied that “the relevant order was made in terms of sufficient clarity, without ambiguity, so that allegedly infringing conduct can clearly be seen to be in breach of something that the [defendant] was directed not to do”: at 728 [29].

In Transport Workers' Union of Australia, New South Wales Branch v Chubb Security Services Ltd [2001] NSWIRComm 248, the Full Bench (Wright J, President, Walton J, Vice-President, and Commissioner Patterson) held at [11] that “[i]t is essential that orders made under s 137 be in clear terms and in terms readily understood and capable of being obeyed by those against whom they are made”. In that case, the union, its officers, employees, members and agents were ordered to refrain from imposing any bans, limitations or restrictions on the performance of work at or in relation to the premises of Chubb Security Services Ltd at nominated premises. A second order was in the following terms:

The Full Bench, on an appeal brought by the union, held at [10]:

The prosecutor correctly submitted that an appeal can lie to the Full Bench against a decision by a single Commissioner to make (or not make) dispute orders but such an appeal requires leave under s 188 of the Act unless made by the Minister: see, eg, BlueScope v AWU [2006] NSWIRComm 149 (Wright J, President, Walton J, Vice-President, and Marks J); National Union of Workers, New South Wales Branch and Ors v TNT Australia Pty Ltd and Franklins Limited (unreported, Full Bench of the Industrial Relations Commission of New South Wales, IRC 4188 of 1997, 3 September 1997) (Fisher P, Bauer and Hungerford JJ and Commissioner Buckley) (“NUW v TNT”); Secretary of the Department of Education v Australian Education Union of New South Wales Teachers Federation Branch [2022] NSWIRComm 1049 at [6] (Chief Commissioner Constant, Commissioners Sloan and Webster) (“Education Secretary v NSWTF [2022] NSWIRComm 1049”).

In granting leave against a decision to make dispute orders, I agree with the observations of Fisher P, Bauer and Hungerford JJ and Commissioner Buckley in NUW v TNT that there is a further, but not dispositive, consideration as follows:

If there is an alleged contravention of a dispute order, s 139 of the Act provides that the matter can be dealt with by this Court. Section 139 provides as follows:

Reference should also be made to s 355E(2) of the Act, which provides:

The operation of s 139 was outlined by Marks J in Franklins Ltd v National Union of Workers (NSW Branch) (1997) 78 IR 289 (“Franklins v NUW”) at 292 as follows:

In BHP Steel Ltd v The Australian Workers' Union, New South Wales [2003] NSWIRComm 151 (“BHP v AWU [2003] NSWIRComm 151”), Haylen J held, correctly in my view, that contravention proceedings under s 139 of the Act are not criminal proceedings and that the civil onus of proof applies: at [99].

Two early decisions – Coles Supermarket (Australia) Pty Ltd v National Union of Workers (NSW Branch) [1997] NSWIRComm 24 (Cahill J, Vice-President) and Director-General, Department of Education and Training v NSW Teachers' Federation [2000] NSWIRComm 17 (Marks J) (“Education Director-General v NSWTF [2000] NSWIRComm 17”) – appear to support the view that proceedings under s 139 of the Act are criminal in nature. With respect, those decisions are contrary to numerous later decisions of the Industrial Court, the Full Bench, this Court and the Court of Appeal, including PSA v Industrial Relations Secretary [2018] at 774 [51] (Bathurst CJ with whom Gleeson and Simpson JJA agreed). To the extent necessary, those decisions should be overruled for the reasons given by Haylen J in BHP v AWU [2003] NSWIRComm 151.

I agree with the President, Boland J, in Secretary of the Treasury v Public Service Association and Professional Officers' Association Amalgamated Union (NSW) (No 2) (2013) 231 IR 349; [2013] NSWIRComm 25 (“Treasury Secretary v PSA [2013]”) at 360 [55] that “[t]he penalty under the Act for contravention of a dispute order is a civil penalty”. Civil penalties have been broadly defined as “punitive sanctions that are imposed otherwise than through the normal criminal process”: Michael Gillooly and Nii Lante Wallace-Bruce, “Civil Penalties in Australian Legislation” (1994) 13(2) University of Tasmania Law Review 269 at 269-270.

In applications under s 139 of the Act, the defendant stands in jeopardy of having penalties imposed on it or other orders made against it if the pleaded contraventions are established. There are four relevant principles that apply to considering the pleaded contraventions.

First, as to the issue of proof, the prosecutor must prove its case on the balance of probabilities: Evidence Act 1995 (NSW) s 140. I accept the decision of Haylen J in BHP v AWU [2003] NSWIRComm 151 that, in making factual findings, I should adopt the principles enunciated in Briginshaw v Briginshaw (1938) 60 CLR 336 (“Briginshaw”): see also Australian Building and Construction Commissioner v Hall (2018) 261 FCR 347; [2018] FCAFC 83 at 380 [100] (Tracey, Reeves and Bromwich JJ) (“ABCC v Hall”). This is particularly so given that one of the possible consequences for an industrial organisation that is found to have contravened a dispute order may be cancellation of its registration, namely, its very existence as an entity for the purposes of the Act is extinguished. Thus, “inexact proofs, indefinite testimony and indirect inferences” will not be sufficient to make out a case in a matter of this seriousness: Briginshaw at 362 (Dixon J).

In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171, Mason CJ, Brennan, Deane and Gaudron JJ stated:

Secondly, the prosecutor is required to particularise their case and the material facts on which they rely to establish the alleged contravention with clarity and precision. In ABCC v Hall, which was a case dealing with civil penalty provisions, Tracey, Reeves and Bromwich JJ stated at 356 [19]:

Thirdly, to the extent that the defendant accepts that it is liable in relation to certain of the contraventions alleged, that acceptance of liability carries with it an admission of the elements of the contravention admitted: Education Secretary v AEU at [252] (Walton J).

Fourthly, it has also been held that a court, in contravention proceedings, should not imply terms into dispute orders which are not expressly stated in the order itself: BHP v AWU [2003] NSWIRComm 423 at 261 [88] (Haylen J).

In my view, the purpose of contravention proceedings under s 139 of the Act is to further the system of conciliation and arbitration in the Commission. This is because a central and significant factor in the making of dispute orders is that parties have not used the legitimate means within the Act to address industrial disputes in good faith. This is also clear from the place of s 139 within Ch 3 of the Act, which is titled “Industrial disputes”. Thus, the purpose of s 139 of the Act is not to prevent or punish legitimate industrial action but rather to facilitate and uphold the statutory scheme provided by the Act, which as discussed above, emphasises the use of conciliation and, if conciliation does not bear fruit, arbitration. In this respect, this Court should be mindful, when deciding what action to take under s 139(3) of the Act, to help resolve the industrial dispute if it remains live and is ongoing.

It is also the purpose of contravention proceedings to “punish disobedience of an order of the Industrial Relations Commission of New South Wales” and “vindicate the authority of the Commission which is an integral and essential component of the industrial relations system in the State of New South Wales”: Director-General, Department of Education and Training v New South Wales Teachers' Federation [2000] NSWIRComm 103 at [7] (Marks J) (“Education Director-General v NSWTF [2000] NSWIRComm 103”). As Fagan J stated, “[i]t is obviously critical to the whole fabric of the system set up under the Industrial Relations Act that lawfully made orders of a Commissioner…be observed rather than explicitly and flagrantly disregarded”: Industrial Relations Secretary v PSA [2017] at 733-734 [49].

I turn to consider s 139(3)(e) of the Act, which gives this Court the power to “impose a penalty on an industrial organisation or an employer”. The second reading speech of the 1995 Bill (New South Wales, Parliamentary Debates, Legislative Council, 23 November 1995 at page 3851 (The Hon Jeffrey W Shaw QC)) explains this choice of wording:

In Education Secretary v AEU [2022], I summarised at [206]-[208] the relevant factors to be taken into account in determining the appropriate penalty for a contravention of a dispute order:

The principles contained in the above passage were not disturbed by the High Court on appeal in Australian Building and Construction Commissioner v Pattinson (2022) 314 IR 301; [2022] HCA 13 (“Pattinson”).

I note that s 139(3)(a) of the Act provides that this Court may dismiss the matter even if the Court finds that there has been a contravention provided that “the circumstances were such” that this Court “should take no action on the contravention”. In my view, s 139(3)(a) may be engaged where, despite a breach of dispute orders, there are such extenuating circumstances or the matter is so trivial that imposing a penalty would not be appropriate. As explained by Windeyer J, “a capacity in special circumstances to avoid the rigidity of inexorable law is of the very essence of justice”: Cobiac v Liddy (1969) 119 CLR 257 at 269. Nevertheless, the dismissal of the matter where a contravention has been proven is usually reserved for an “exceptional case”: see generally Fire Brigade Employees' Union of New South Wales v Fire and Rescue NSW [2014] NSWIRComm 16 at [20]-[21] (Walton J, President) (“FBEU v FRNSW [2014]”).

For example, where a union is the defendant in proceedings under s 139 of the Act, the union may be able to demonstrate that it took all reasonable steps to prevent industrial action from occurring and, if the strike commenced, endeavoured to prevent it continuing: see Board of Fire Commissioners of NSW v NSW Fire Brigade Employees Union [1953] AR (NSW) 622 at 630 (Cantor, De Baim and Weir JJ); Tooth & Co Ltd v Federated Engine Drivers & Firemen’s Association [1968] AR (NSW) 242 (Cook, Kelleher and Sheehy JJ). This would be satisfied if the union proactively took serious and genuine steps and did not merely sit idly by: Moray v Federated Engine Drivers & Firemen’s Union [1963] AR (NSW) 830 at 844 (McKeon and Beattie JJ); The Minister v Stove, Piano Frame, etc, Union [1919] AR (NSW) 39 (Edmunds J). It is unlikely to be accepted where the union has taken some small steps to prevent the strike but also failed to substantially act to prevent the strike: see John Fairfax & Sons Pty Ltd v Printing Industry Employees Union [1963] AR (NSW) 97 (Taylor J, President, Beattie and Kelleher JJ). This is particularly so when a governing organ of an organisation has the capacity to cancel or prevent industrial action but fails to do so.

Three past decisions illustrate the wide discretion available under s 139(3)(a) of the Act. First, in Education Director-General v NSWTF [2000] NSWIRComm 103, the Commission in Court Session dismissed contravention proceedings under s 139(3)(a) of the Act, notwithstanding that it found that the union had “wilfully disobeyed the dispute orders” and “the contravention was a serious one”: at [8]. Marks J explained at [9]-[10]:

Secondly, in Bluescope Steel v Australian Workers Union, New South Wales (No 3) [2006] NSWIRComm 307 (“BlueScope (No 3) [2006]”), dispute orders were made by the Commission banning industrial action for one month. These orders were made in relation to strike action that was proposed to be taken in protest at the dismissal of an employee for allegedly threatening behaviour towards a supervisor: at [7]. During the period in which those dispute orders operated, industrial action was taken on plant-wide basis over enterprise bargaining and outsourcing.

In the contravention proceedings, the union was found to have breached dispute orders. However, Boland J, as his Honour then was, decided not to impose any penalty and dismissed the matter under s 139(3)(a) of the Act because the responsible union official held a genuine and honest belief that dispute orders did not apply to industrial action over enterprise bargaining and outsourcing. His Honour’s reasoning at [50]-[51] is as follows:

Thirdly, in BlueScope (No 2) [2005], the Full Bench emphasised in very strong terms that the breach of dispute orders (which involved a strike that resulted in the delayed dispatch of urgent and important stock for Electrolux) was “plainly a serious offence”: at 330 [5] (Wright J, President, Walton J, Vice-President, and Marks J). The Full Bench held that the strike was “deliberate and strategic”: at 331 [7].

Notwithstanding that the employer sought a penalty “at the top of the range” (at 330 [3]), the Full Bench held that the imposition of a penalty should be deferred. That order was the most appropriate course in all the circumstances to achieve industrial peace and deter similar breaches in the future. This is because that remedy gave an opportunity for the defendant union to demonstrate its commitment to ensure compliance with the urgent dispatch provisions of the enterprise agreement, which provided that there was to be no interruption to the supply of urgent product during periods of industrial disputation. The President, Wright J, Marks J and I explained at 330-331 [5]:

The Full Bench also directed that the union provide all members of its union who worked at the premises with a copy of its judgment “[s]o that all members concerned may understand their obligations and the consequences of any breach”: at 331 [7] (Wright J, President, Walton J, Vice-President, and Marks J). The employer was asked to give assistance for copies to be distributed. And Mr Gillespie was directed to file an affidavit setting out the steps taken to comply with the Full Bench’s direction.

These decisions demonstrate the practical approach of the former Industrial Court in contravention proceedings and when dealing with industrial disputes more generally. It emphasises that the function of this Court, as the successor of the former Industrial Court, is to give effect to the objects of the Act by assisting in the peaceful resolution of industrial disputes and the promotion of industrial harmony.

Therefore, whether a defendant has made a statement of regret or commitment to act differently in the future is a highly relevant consideration in these kinds of proceedings. In this respect, I refer to the remarks of Fagan J in Industrial Relations Secretary v PSA [2017], which were made in the midst of a contravention of dispute orders by the union, at 734 [52]-[53]:

I will return to the factors for determining the appropriate course of action under s 139(3) later in my judgment.

On 16 March 2021, the General Secretary of the Association, Mr Brett Holmes, sent a letter to the Secretary regarding changes to the Public Health System Nurses’ and Midwives’ (State) Award.

On that same day, Mr Holmes sent a letter to the then-Premier, The Hon Gladys Berejiklian MP, expressing concern that “the current system of Nursing Hours Per Patient Day is not working” and proposing that “[w]e can fix this, together, by implementing a shift-by-shift nurse-to-patient ratio system”. The letter stated that this ratio system “ensures every patient on every shift gets the care they require. It ensures our members potential to burn out is dramatically decreased”.

The letter also noted that, during March 2021, members of the Associations met in workplaces and “unanimously endorsed a log of claims for the upcoming negotiations”. The resolutions of the Association’s Branches were stated in the letter as follows:

On 15 April 2021, the Executive Director, Workplace Relations of the Ministry of Health, Ms Annie Owens, responded to the letter to the Secretary stating that the Ministry of Health does not agree with the Association’s claim and made an offer that proposed a 1.5% increase to wages and wage related allowances and new consent awards to be made (to replace existing awards) that contain the increased pay rates and roll over existing award provisions.

On 10 September 2021, Mr Holmes wrote to the then-Premier as well as the Minister for Health, The Hon Brad Hazzard MP, to bring to their attention their concerns with providing safe nursing care under the current staffing levels. It noted that the Association raised these concerns in meetings with the Ministry of Health and “no action was taken”. The letter attached “an open letter signed by over 700 intensive care nurses demanding the NSW Government improve staffing within all ICUs, in line with the Australian College of Critical Care Nurses (ACCCN) Workforce Standards for Intensive Care Nursing”. It summarised this demand as follows:

On 7 October 2021, the Deputy Secretary, People Culture and Governance of NSW Health, Mr Phil Minns, sent a letter to Mr Holmes. The letter appears to relate to a request from the Association for Nursing Hours Per Patient Per Day (“NHPPPD”) data. Mr Minns acknowledged that cl 53(II)(r) of the Public Health System Nurses’ and Midwives’ (State) Award “provides that [NHPPPD] staffing is identified in Nursing Hours wards, and for the posting of [NHPPPD] spot check reports, should staff wish to confirm [NHPPPD] staffing levels”. The letter noted that the data is provided by Local Health Districts (“LHD”) and suggested that the Association submit any future requests for such data to the relevant LHD.

On 26 November 2021, Mr Holmes sent a letter to the Premier, The Hon Dominic Perrottet MP, and the Deputy Premier and Minister for Regional New South Wales, The Hon Paul Toole MP, regarding “a chronic staffing crisis” in rural, regional and remote hospitals “that has diminished the safe delivery of public health care”. The letter noted that Queensland Health offers its public sector nurses up to $25,000 per year of benefits for free or subsidised accommodation, professional development allowance, paid professional development leave, appointment and relocation costs, fly in-fly out with recreation leave, and bonus payments. The letter proposed that “an appropriate solution…should be a minimum of three nurses on every shift, in every [Multi-Purpose Services site], two of whom must be registered nurses”.

On 21 January 2022, the A/General Secretary of the Association, Ms Shaye Candish, wrote a letter to Mr Perrottet advising that state-wide delegates voted the condemn the government’s handling of the COVID-19 pandemic. The letter noted that “[o]ur call for shift-to-shift nurse/midwife to patent ratios has gone unheeded”. The letter stated “[w]hen we ask for improvements in staffing in your public hospitals, we are told it offends your public sector wages cap”. The letter called on the government to implement the Association’s revised ratios claim, negotiate in good faith for a pay rise, provide immediate access to Rapid Antigen Tests for healthcare workers, allow nurses and midwives to access Special Leave (Pandemic Leave) when positive with COVID-19 and implement a COVID-19 payment allowance for nurses and midwives.

On 2 February 2022, the Association, via its Facebook page, asked all its members to meet and vote on the Association’s recommendation that they participate in a State-wide strike on Tuesday 15 February 2022.

As at 3:00pm on 11 February 2022, the extent of proposed industrial action by LHD as advised to the Ministry of Health was as follows:

In total, 95 branches in the Association had confirmed that they would be taking some form of industrial action.

On 11 February 2022, the prosecutor notified the Industrial Registrar of an industrial dispute (“the First Dispute”) (IRC file number 2022/00041072). On the Form 4, it was noted that there was threatened State-wide strike on 15 February 2022. The notification stated that “[s]hould a strike action occur it will cause significant disruption to the safe staffing of health facilities and presenting a risk to employee and public health and safety”. The notification sought the Commission’s assistance to resolve the dispute on an urgent basis.

On 14 February 2022, Commissioner Murphy conducted a compulsory conciliation of the First Dispute. Following that compulsory conference, the Commission issued a certificate that reasonable attempts had been made to resolve the First Dispute by conciliation and moved the hearing into arbitration.

At the arbitration, the Secretary was represented by Ms Vanja Bulut of Counsel and the Association was represented by Ms Sarah Davis, an Industrial Officer but not legally qualified. The Commission received evidence from the Director, Industrial Relations and Management of the Ministry of Health, Ms Elizabeth Allen, and then proceeded to hear argument from Ms Bulut seeking dispute orders and Ms Davis opposing the making of such orders.

At approximately 3:50pm, after hearing Ms Bulut in reply, the Commissioner, without giving reasons, proceeded to ask about the form of the orders. A discussion ensued about the precise wording and numbering of the orders and directions sought by the Secretary. The Commissioner then signed and stamped the text of the orders and gave copies to the parties at or around 4:00pm.

The February Orders were in the following terms:

Relevantly, at no point after the hearing of argument and before the making of the orders or adjournment of the arbitration hearing that day did the Commissioner give his reasons for making the dispute orders. Nor did the Commissioner subsequently deliver written or oral reasons for making the dispute orders.

At approximately 7:00pm on 14 February 2022, the Association caused a post to be published on its Facebook page, stating:

The post was accompanied by an image with the text “NURSES AND MIDWIVES STAY THE COURSE! ON SAFE STAFFING RATIOS” in large white and yellow text. There is smaller text on the side that says “IT’S TIME FOR ACTION”.

On 15 February 2022, the Association caused a post to be published on its Facebook and Instagram accounts stating:

On 15 February 2022, strike action and multiple rallies occurred across the State that were organised by the defendant. Employees of the NSW Health Service (as that term is defined in ss 115 and 116 of the Health Services Act 1997 (NSW)) took industrial action by not attending or performing work for a period of time. The industrial action lasted 24 hours with the earliest beginning at 7:00am on 15 February 2022 and concluding by 7:00am on 16 February 2022.

On that day, at or around 8:07am, 9:59am, 12:26pm, 3:44pm, 4:55pm and 7:00pm, the Association caused posts on its Facebook page containing photos and video clips of “strike action” that day. One of those posts is accompanied by photos that pictured strike action or rallies with labels containing their locations around the State. The post states:

The action was related to the “#StrikeForRatios” campaign by the defendant, which supports their claim for:

The proceedings in the Commission relating to the First Dispute was listed for conciliation on 25 March 2022 at 11:00am.

On 24 March 2022, the legal representative for the Secretary, Ms Katherine Murray for the NSW Crown Solicitor, sent a letter to the Industrial Registrar relevantly stating as follows:

At the listing on 25 March 2022, the Commission turned to consider the issues raised in Ms Murray’s letter. The parties did not agree on whether the Secretary’s application was a new dispute or part of the First Dispute. Commissioner Murphy proceeded on the basis that the Secretary’s application for further dispute orders was a new dispute and allocated it a new file number (IRC file number 2022/00085833).

Commissioner Webster then conducted a compulsory conciliation of the Second Dispute and issued a certificate of attempted conciliation.

Later in the day, the matter moved to arbitration before Commissioner Murphy. The Secretary was represented by Ms Janet McDonald of Counsel (as the Commissioner then was) and the Association was represented by Ms Roisin Beard, an Industrial Officer. The Commission again received evidence from Ms Allen. The Commission heard argument from Ms McDonald seeking dispute orders and Ms Beard opposing the making of such orders. It was noted that, between First and Second Disputes, the Association had served the Secretary with a log of claims.

After hearing from both Ms McDonald and Ms Beard, the Commissioner, without giving reasons, proceeded to ask about the form of the orders. Following a discussion ensued about the precise wording and numbering of the orders and direction, the Commissioner then signed and stamped the text of the orders and gave copies to the parties.

The March Orders were in the following terms:

Like the First Dispute, at no point after the hearing of argument and before the making of the orders or adjournment of the arbitration hearing that day did the Commissioner give his reasons for making the dispute orders. Nor did the Commissioner subsequently deliver written or oral reasons for making the dispute orders.

On 28 March 2022, Mr Holmes sent a letter to Ms Murray that relevantly contained the following:

The email referred to in Mr Holmes’ letter was a reference to an email sent by the defendant at or around 4:44pm on 25 March 2022. The email contained a link to the March Orders and included the following text:

The prosecutor alleges that, on 25, 26, 27, 28, 29, 30 and 31 March 2022, officers and/or agents of the defendant organised or encouraged its members and employees of the NSW Health Service to take industrial action on 31 March 2022.

On 28 March 2022, an Organiser of the Public Health Organising Team of the defendant, Ms Zoe-Anne Guinea, sent an email to representatives of the prosecutor stating:

On 31 March 2022, strike action and multiple rallies was organised by the defendant and attended by members of the Association and employees of the NSW Health Service. The industrial action, which involved employees not attending or performing work for a period of time, lasted 24 hours with the earliest beginning at 7:00am on 31 March 2022 and concluding by 7:00am on 1 April 2022.

At or around 8:00am on 1 April 2022, the Association caused a post to be published on its Facebook page that stated:

Before turning to other matters, I note that the parties did not provide this Court with a complete chronology of the events, including events leading up to the proceedings in the Commission and events after the strike action. In future contravention proceedings, the parties should provide an agreed chronology or, failing agreement, the respective chronologies of the parties.

On 5 April 2022, the Secretary filed a Summons in this Court. seeking the following relief:

I am satisfied that the Secretary may bring an application under the second sentence in s 139(1) of the Act. The Secretary was the person who applied for the relevant dispute orders in the Commission. The employer of the relevant employees concerned is the Crown in the right of the State of New South Wales: see Chapman-Davis v New South Wales (2015) 90 NSWLR 533; [2015] NSWIC 10 at 538 [12]-[15] (Walton J, President) (“Chapman-Davis”), citing New South Wales v Bishop (2014) 14 DDCR 1; [2014] NSWCA 354 at 8 [26]-[28] (Emmett JA with whom Basten and Gleeson JJA agreed) and affirmed in Re Ambulance Award at 196 [6], [8] (Walton J, President, Kite AJ and Commissioner Tabbaa). Nevertheless, the Secretary was entitled to bring an application because s 116H of the Health Services Act 1997 (NSW) provides that the Secretary is “taken to be the employer” for the purposes of industrial proceedings.

Therefore, as the Secretary was an “employer” under s 130(1)(b) of the Act, the Secretary could notify the Commission of an industrial dispute and apply for a dispute order under s 136(2) of the Act. Similar provisions also exist in other Acts: see, eg, Government Sector Employment Act 2013 (NSW) s 50 (Industrial Relations Secretary); Independent Commission Against Corruption Act 1988 (NSW) s 104(9) (Chief Commissioner of the Independent Commission Against Corruption); Fire and Rescue NSW Act 1989 (NSW) ss 69 and 70 (Industrial Relations Secretary and Commissioner of Fire and Rescue NSW); Government Sector Audit Act 1983 (NSW) s 33E (Auditor-General); Police Act 1990 (NSW) s 85 (Commissioner of Police); Teaching Service Act 1980 (NSW) s 12 (Secretary of the Department of Education); Transport Administration Act 1988 (NSW) ss 59(3) (Chief Investigator of the Office of Transport Safety Investigations), 68K(3) (Transport Secretary).

On 5 April 2022, Campbell J made orders forthwith issuing the show cause summons and making it returnable on 12 April 2022.

On 12 April 2022, the matter was managed to a hearing by Beech-Jones CJ at CL by the consent of the parties.

On the first hearing day, following my rulings on various objections to the evidence, I gave a short adjournment to the next day so that the Amended Summons and the parties’ amended submissions could be filed. The Amended Summons is annexed to this judgment.

After the second hearing day, when it became clear that more time was necessary for the parties to complete oral submissions, I adjourned to the earliest possible date that suited the parties.

A communication was sent by my Associate inviting the parties to make further submissions on the third hearing day on the availability of a collateral challenge or attack in this proceeding with reference to the following two articles: Mark Aronson, ‘Criteria for Restricting Collateral Challenge’ (1998) 9 Public Law Review 237 and Enid Campbell, ‘Collateral Challenge of the Validity of Governmental Action’ (1998) 24 Monash University Law Review 272.

After the third hearing day, I granted leave and directed the parties to file notes on whether or not, as a matter of law, a union may “take” industrial action in the facts and circumstances of the case. I was mindful to give the parties the time they sought to prepare the notes and allowed them to file notes in reply within one week if they wished. After the last note was received on 29 July 2022, judgment was reserved.

This matter raised a wide range of very significant issues. It became very different to ordinary contravention proceedings because the defendant sought to attack the validity of the dispute orders of the Commission for two alleged errors. The first alleged error is the failure to give reasons. The second is that the Commission failed to respond to a substantial and clearly articulated argument advanced by a party.

At the beginning of the hearing, the prosecutor noted that there were four broad issues for determination. I will state the issues and questions for determination as follows.

On the first issue, which I deal with in this judgment under the part titled “Collateral Attack”, the questions before the Court are as follows:

If the first issue is resolved in a way that allows the Court to hear and determine the merits of the errors alleged by the defendant, the Court proceeds to the second issue, which is under the title “The Validity of the Dispute Orders”. The questions before the Court are as follows:

If the first and second issues are resolved in a way that leaves legally valid dispute orders, the third issue concerns whether the contraventions alleged by the prosecutor are established. The third issue is under the title “Contraventions” in this judgment. It is necessary to this issue to also answer three questions:

If the third issue is resolved in a way that the alleged contraventions are established, the fourth issue arises under the heading “Appropriate Penalty”. The question before the Court is what is the appropriate penalty that should be imposed. Within this broader question are the following preliminary issues:

I note, on the outset, that s 139(1) of the Act states that this Court “must deal expeditiously with an alleged contravention of a dispute order”.

In Education Director-General v NSWTF [2000] NSWIRComm 17, contravention proceedings under s 139 of the Act for the imposition of a penalty were commenced in the Commission in Court Session around the same time as an appeal was lodged to the Full Bench from the underlying dispute orders made by the Commission. Marks J held that the requirement to act expeditiously in s 139(1) of the Act did not prevent the Commission in Court Session delaying the contravention proceedings until the appeal proceedings before the Full Bench had concluded. Marks J held at [29]:

Guidance may be derived from judicial consideration of the statutory obligation to act expeditiously where it appears in other statutes.

In Y (a pseudonym) v The Secretary, Department of Communities and Justice (No 4) [2021] NSWDC 81, Levy SC DCJ described the requirement in s 94 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) to act expeditiously in care proceedings as a “statutory admonition” that “must of course be given great weight subject to any overriding considerations of procedural fairness”. I respectfully agree with that general observation. However, this statutory command does vary depending on the circumstances, including, in the circumstances of that statute, that “the younger the child, the more expedition is required”: The Department of Communities and Justice (DCJ) and the Rasooli Children [2021] NSWChC 4 at [23] (Johnstone DCJ, President, as the Chief Magistrate then was).

A similar obligation exists in s 71 of the Bail Act 2013 (NSW), which provide that “[a] bail application is to be dealt with as soon as reasonably practicable”. Section 71 has the heading “Bail applications to be dealt with expeditiously” but headings to individual provisions do not form part of the Act: Interpretation Act s 35(2). In relation to the content of this statutory command, Campbell J stated in Ahmad v Director of Public Prosecutions (NSW) [2017] NSWSC 90 at [31] and [38]:

In my view, the statutory obligation on this Court to act expeditiously in s 139(1) of the Act requires that the Court to act with a sense of urgency in listing, hearing and determining the matter. The statutory mandate to act expeditiously must be given practical effect by the Court as well as the legal representatives of the parties, whose duty to the Court and the administration of justice is paramount: Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) r 4(a); Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 (NSW) pt 2 r 3.1.

In giving effect to the mandate, the Court should have regard to all the circumstances, including, but not limited to, the need to accord procedural fairness to the parties, judicial resources, complexity of the issues raised and any industrial circumstances. In any case, there may also be important public policy considerations that require industrial disputes to be resolved expeditiously: Bevco Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (New South Wales Branch) [2005] NSWIRComm 182 at [14] (Staff J); see generally Notification under s 130 by the CFMEU of a dispute with Newcrest Mining Ltd (2005) 139 IR 78; [2005] NSWIRComm 77 at 79 [6] (Walton J, Vice-President) (“Newcrest”), cited and affirmed in Newcrest Mining Ltd v IRC of New South Wales and CFMEU (2005) 139 IR 72; [2005] NSWCA 85 at 75 [6] (Bryson JA) and Commissioner of Police v Police Association (NSW) (2005) 141 IR 423; [2005] NSWIRComm 132 at 436 [42] (Wright J, President, Deputy President Grayson and Commissioner Ritchie).

An obligation to act expeditiously is a relevant and important consideration when the Court is programming the matter, ordering the issue of process and when adjournments are sought: see Secretary, NSW Department of Education v The Australian Education Union New South Wales Teachers Federation (NSWTF) Branch [2021] NSWSC 1628 at [9] (Dhanji J) (“Education Secretary v AEU [2021]”); Barr v Director of Public Prosecutions (NSW) (2018) 97 NSWLR 246; [2018] NSWCA 47 at 259 [66] (Leeming JA). Such an obligation can also be a relevant consideration in statutory interpretation: see CM v Secretary, Department of Communities and Justice [2022] NSWCA 120 at [26] (Leeming JA with whom Kirk JA and Simpson AJA agreed).

As appropriately acknowledged by both parties, the complexity of this matter made it different from past proceedings brought under s 139 of the Act. As counsel for the defendant stated, this is not a “garden variety dispute order application” and there was no reason that a decision needed to be rushed. Counsel for the prosecutor agreed that there is nothing that placed pressure on the Court to issue a decision more quickly than is required for consideration of all the issues raised. In light of the various issues raised in these proceedings, I have taken more time to consider, and written a more detailed judgment, than what would generally be given in proceedings brought under s 139 of the Act.

The prosecutor submitted that the defendant is plainly bringing a collateral attack because the “primary object” of the proceedings is not to set aside or modify the Commission’s orders. The prosecutor submitted that the orders themselves “appear valid…until there is an actual challenge to those orders”.

It was submitted that the “proper and primary way” to challenge the Commission’s orders was to appeal the decision to the Full Bench of the Commission, to bring judicial review proceedings in their own right or, at the very least, to bring the matter properly before this Court by way of a motion. The defendant did not do that.

Relying on Jacobs v OneSteel Manufacturing Pty Ltd (2006) 93 SASR 568; [2006] SASC 32 (“Jacobs v OneSteel”), it was submitted that this Court should not, as a matter of discretion, entertain the collateral attack. The prosecutor made specific reference to the fourth factor identified Jacobs v OneSteel at 593-594 [93], which asks, “Is there a statutory provision that bears in one way or another on the question of whether a collateral challenge should be permitted?” The prosecutor submitted that s 179 of the Act shows that a legislative intention that the decisions of the Commission are final and are not to be reviewed or called into question. Although it was accepted that the decisions of the Commission may be called into question if they were affected by jurisdictional error, it was submitted that s 179 of the Act shows a legislative intent for finality, save for an appeal. Therefore, this Court should not, as a matter of discretion, entertain a collateral attack unless the defendant brings judicial review proceeding or appeals to the Full Bench.

The defendant submitted in their written submissions that the dispute orders “are amenable to collateral attack in these proceedings on the basis that they are infected by jurisdictional error”. It is implicit from the written submissions that the defendant accepted that they were raising a collateral attack.

In the hearing, the defendant’s submissions appeared to change. Counsel for the defendant submitted that the challenge to the dispute order did not fall within the concept of a collateral challenge as described by McHugh J in Ousley v The Queen (1997) 192 CLR 69; [1997] HCA 49 (“Ousley”). The defendant relied on Dyldam Developments Pty Ltd v The Owners—Strata Plan 83505 [2020] NSWCA 327 (“Dyldam Developments”) where White JA (with whom Emmett and Simpson AJJA agreed) held at [57] that it was central, and not collateral, for the Civil and Administrative Tribunal of New South Wales to determine the validity of purported occupation certificates when exercising its jurisdiction under the Home Building Act 1989 (NSW) (“HB Act”).

In Ousley, the High Court had to consider whether the County Court of Victoria had jurisdiction to decide a challenge to the validity of a search warrant issued as an administrative act by a Judge of the Supreme Court. This issue arose in the context of whether or not evidence from listening devices introduced pursuant to the warrant was obtained lawfully. The High Court held that the County Court could hear and determine the challenge, at least where it was based upon the face of the warrant and its asserted non-conformity with requirements of the Act authorising the issue of the warrant: at 79-80 (Toohey J), 87 (Gaudron J), 102, 104-105 (McHugh J), 126-127 (Gummow J), 144, 148 (Kirby J).

In that decision, McHugh J described at 98-99 a collateral attack in the following terms:

A collateral challenge has been described in the seminal work by Mark Aronson, Matthew Groves and Greg Weeks, Judicial Review of Administrative Action and Government Liability (Lawbook, 6th ed, 2017) at [10.280] as one where:

In this respect, a collateral challenge can be described as an attempt by a party to assert that an administrative or judicial act or decision is void or unlawful in a proceeding that is neither an application for judicial review or a direct appeal or review of that act or decision (including, in the case of some administrative decisions, statutory merits review).

In Attorney-General (Cth) v Breckler (1999) 197 CLR 83; [1999] HCA 28 (“Breckler”), Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ said at 108 [36]:

The defendant principally relied on the Court of Appeal’s decision in Dyldam Developments to support the contention that this Court has jurisdiction and is obliged to consider whether the February and March Orders were valid, and that their challenge to the validity of those orders are not properly characterised as collateral. It is necessary to consider that decision and its interaction with Director of Housing v Sudi (2011) 33 VR 559; [2011] VSCA 266 (“Sudi”) in greater detail.

Sudi was a decision of the Victorian Court of Appeal concerning the power of the Victorian Civil and Administrative Tribunal (“VCAT”) to collaterally review the decision of the Director of Housing to bring an application for an order for the possession of residential premises.

In that case, the Director brought proceedings in the for possession of residential premises. The Tribunal dismissed the applications on the ground that the Director had breached the Director’s obligations under s 38(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) in seeking to evict the respondents from their premises.

The Victorian Court of Appeal held that the Tribunal did not have the power to undertake collateral review of the validity of the Director’s proceeding to bring the application for possession. Warren CJ held that such a power would be inconsistent with the stated purpose for the establishment of VCAT as its being to set up a specialist forum of limited jurisdiction that was to provide quick, efficient, inexpensive and informal resolution of issues: at 567 [34], 568 [39].

Her Honour acknowledged the risk that this would lead to fragmentation of proceedings by requiring the respondent to the application for possession to bring a separate proceeding in the Supreme Court to challenge the Director’s decision to bring the proceeding but said that this was a necessary consequence of the setting up of a specialist forum of limited jurisdiction: at 567-568 [37]-[39].

Warren CJ held that the legislation establishing VCAT and conferring upon it jurisdiction to deal with residential tenancies “evince an intention to deny VCAT power to collaterally review the validity of a purported administrative decision that happens to be material to the tenancy dispute before VCAT”. Her Honour also put it differently as that “the two Acts evince an intention that, in dealing with applications under the [Residential Tenancies Act 1997 (Vic)], VCAT should treat relevant purported administrative decisions as being valid unless and until set aside by a court of competent jurisdiction.”

Maxwell P and Weinberg JA, writing separately, agreed and elaborated on their reasons. Relevantly, Weinberg JA said that VCAT may have some powers to engage in collateral review, but the extent of those powers was confined by Ousley to challenges brought on the basis of “something akin to ‘facial’ or ‘patent’ invalidity”: at [261]. The collateral review made by the Tribunal in Sudi was not of that character.

Dyldam Developments was an appeal from the Appeal Panel of the Civil and Administrative Tribunal of New South Wales. Proceedings were brought in the Tribunal for a breach of a statutory warranty in relation to the erection of residential building containing 18 units.

There were three documents purporting to be “occupation certificates” for the building. Two were described as “interim” and were issued on 5 September 2011 and 9 September 2011, respectively. It was found by the Tribunal, and appears to be accepted in the Court of Appeal, that these “interim” occupation certificates were issued in contravention of the Environmental Planning and Assessment Act 1979 (NSW) (“EPA Act”). The third document was issued on or about 12 October 2011 and was described as a “final” occupation certificate.

The significance of the validity of the interim certificates and the dates of their issue becomes clear once one considers the relevant legislative provisions (as they existed at the relevant time):

Proceedings were commenced in the Tribunal on 4 October 2018. This meant that the proceedings were within seven years of the issue of the final certificate, but more than seven years after the issue of the two interim certificates.

Senior Member Goldstein found that the interim certificates had been issued in breach of s 109H(2) of the EPA Act and thus the two certificates were invalid. On appeal to the Appeal Panel, Dyldam Developments contended that the Tribunal had to take the certificates as having the effect stated on their face. The Appeal Panel disagreed and held that the Tribunal did not err in finding that neither interim certificate had been validly issued and that the Tribunal had power to collaterally review the validity of the occupation certificates: Dyldam Developments Pty Ltd v The Owners – Strata Plan No 85305 [2019] NSWCATAP 229 at [116]-[117], [122] (Armstrong J, President, and Principal Member Pearson)

On appeal to the NSW Court of Appeal, Dyldam Developments contended that the Tribunal had no authority to determine whether an interim occupation certificate was issued in breach of the EPA Act or to grant relief to give effect to such a determination.

White JA (with whom Emmett AJA and Simpson AJA agreed at [110] and [111]) held that the “starting point” is the jurisdiction conferred on the Tribunal by the HB Act: at [43]. Relevantly, s 48K of the HB Act relevantly provided:

It was the express denial of jurisdiction by the plain words of s 48K(7) of the HB Act that his Honour emphasised meant that the issue as to whether a building claim is brought inside or outside the limitation period became an issue central to the jurisdiction of the Tribunal. To put it simply, the Tribunal could not proceed to hear and determine the building claim until and unless it was satisfied that it had jurisdiction within ss 48K(1)-(2) that was not denied by s 48K(7).

White JA also drew attention to the fact that, whilst the Land and Environment Court has jurisdiction to consider the validity of an occupation certificate, “there is nothing that would confer exclusive jurisdiction on the Land and Environment Court to determine the validity of an occupation certificate”: at [48]. Instead, his Honour held that the effect of s 48L of the HB Act was that the Tribunal is to be the forum chiefly responsible for resolving building claims. His Honour held that this “tells against a construction of s 48K that would require a separate proceeding to be commenced in the Land and Environment Court to determine the validity of the certificates on which Dyldam relies”: at [47].

It is against this background that White JA held at [57]-[59]:

White JA explained that the “centrality of the issue to the Tribunal’s jurisdiction” distinguishes that case from Sudi. His Honour held at [60]-[61]:

It is clear from Dyldam Developments that an attack on the validity of an order, certificate, decision or the like is not to be characterised as a collateral attack if determining the attack is necessary for the court or tribunal to determine whether it has jurisdiction to decide the broader claim brought before it. In contrast, where an attack on the validity of an order, certificate, decision or the like does not go to the jurisdiction of the court or tribunal, it can be properly characterised as a collateral attack. This appears to be clear from the holding of Maxwell P in Sudi at [74]-[75] that because the proceeding in VCAT was conditioned not on the existence of a valid administrative act by a public official, but on the existence of a right of possession of land, there was no capacity for collateral review of the validity of the Director’s decision under the Charter of Rights and Freedoms.

Thus, the issue in the present proceedings then turns to whether the validity of the dispute orders is an issue that goes to the jurisdiction of this Court under s 139 of the Act. The defendant submitted that the Court's jurisdiction is conditioned upon the dispute orders being, as a matter of law, valid dispute orders. It necessarily followed from the defendant’s submission that a reference to the words “dispute order” or “order” throughout s 139 of the Act can only be to a legally valid dispute order.

In my view, the construction advocated by counsel for the defendant sits ill with the plain text of s 139 of the Act. The jurisdiction of the Court under sub-s (1) is to “deal…with an alleged contravention of a dispute order”. This language is repeated in sub-s (2), which reinforces that the Court is “dealing with an alleged contravention of the order”. Whenever the words “alleged contravention”, “contravened” and “contravention” are used throughout s 139 of the Act, they are used to refer to an “alleged contravention of a dispute order”. In my view, this supports a construction whereby an “alleged contravention of a dispute order” is a composite phrase denoting a single element, rather than to require that there be an “alleged contravention” and a valid dispute order as two separate and distinct elements to the jurisdiction of the Court: see generally Sea Shepherd Australia Limited v Commissioner of Taxation (2013) 212 FCR 252; [2013] FCAFC 68 at [34] (Gordon J).

In my view, it is the existence of an alleged contravention brought by an application made by the person who applied for the order or any other person who was authorised to apply for the order that gives jurisdiction on this Court to “deal” with the matter: Franklins v NUW at 295 (Marks J). That application is to be commenced by a commencement summons: Supreme Court Rules 1970 (NSW) Sch J Pt 1 cl 1(1) under the heading “Industrial Relations Act 1996”; see also Practice Note SC CL 3 at [23].

This is reinforced by the unique procedure and role of this Court (and the predecessor Industrial Court) in dealing with applications of this kind. After an application has been brought by the filing of a commencement summons, the Court is to consider whether to issue a show cause summons under sub-s (2). There are four features of the Court’s procedure and role at this juncture.

In my view, these four features point strongly against the notion that the jurisdiction of this Court to deal with applications under s 139 is conditioned on the existence of valid dispute orders at law. If that were the case, an inquiry would need to be conducted at the stage of issuing a show cause summons that the alleged contravention is of orders that are legally valid dispute orders. This is because it is the “first duty” of a court to be satisfied that it has jurisdiction to decide the matter before it: Federated Engine-Drivers and Firemen's Association of Australasia v Broken Hill Pty Co Ltd (1911) 12 CLR 398 at 415 (Griffith CJ) (“FEFAA v Broken Hill”); Justice Mark Leeming, Authority to Decide: The Law of Jurisdiction in Australia (Federation Press, 2nd ed, 2020) at pp 37ff. It is of “utmost importance” that jurisdictional issues are raised and dealt with at the earliest available opportunity: Re Culleton (2017) 340 ALR 550; [2017] HCA 3 at [23] (Gageler J); see also Stevenson v Barham (1977) 136 CLR 190 at 202 (Mason and Jacobs JJ, as Mason CJ then was, with whom Barwick CJ agreed); Shop, Distributive and Allied Employees’ Association, New South Wales v Librus Pty Ltd t/as Dymocks Parramatta (2001) 103 IR 390; [2001] NSWIRComm 46 at 393-394 [11] (Walton J, Vice-President, Hungerford J and Commissioner Patterson). If a valid dispute order were a condition of the jurisdiction of the Court, that issue should be decided before the Court were to exercise any of its powers under s 139, including issuing a show cause summons.

The Court is plainly ill-suited to decide the legal validity of a dispute order in an ex parte proceeding in circumstances where there are only limited documents before it and where the purpose of that proceeding is merely to issue process. This reinforces the construction that the terms of s 139 of the Act do not make the jurisdiction to “deal” with an alleged contravention conditional on the existence of legally valid dispute orders.

Furthermore, the jurisdiction to take one or more of the actions in s 139(3) is only enlivened “after hearing any person who answered the [show cause] summons to show cause and considering any other relevant matter”. This only highlights that the jurisdiction of the Court in dealing with an application under s 139 of the Act is not conditioned on the existence of valid dispute orders. It is only after the show cause summons has been issued that the alleged contravener is to be heard on the validity of the dispute orders that they allegedly contravened.

Section 139(3)(a) provides that one of the actions that this Court may take is to “dismiss the matter if it finds that the dispute order was not contravened or if it finds that the circumstances were such that the Supreme Court should take no action on the contravention”. If it is established that the dispute orders were only purported orders in fact, and not valid orders at law, then the proper course would be to dismiss the matter under that provision because there was no contravention in the circumstances and the Court should take no action. In my view, s 139(3)(a) has the opposite effect to the provisions that excited the outcome in Dyldam Developments.

The defendant submits that it is “inherent” in Pt 2 of Ch 3 of the Act, which contains ss 137-139 of the Act, that those provisions refer to legally valid dispute orders. That argument is unpersuasive. As extracted above, s 137 merely deals with the “kinds” of dispute orders that can be made by the Commission in arbitration proceedings. This is akin to giving a broad definition of what orders would fall under the meaning of “dispute order”. Section 138 deals with matters including who dispute orders can be made against and what the orders must identify or state. This section explains the conditions for valid dispute orders. In my view, there is nothing in ss 137 or 138 that support or require the conclusion that the jurisdiction conferred on this Court by s 139 of the Act is conditioned on legally valid dispute orders.

In my view, the legislative provisions in s 48K of the HB Act are readily and clearly distinguishable to those in s 139 of the Act. There is no provision like s 48K(7) that expressly denies jurisdiction to this Court unless a condition is met.

I raise one further point that was raised by White JA in Dyldam Developments as a distinguishing feature between that case and Sudi. In Dyldam Certificates, the interim certificates bore a “mark of invalidity on their face”: at [62]. In contrast, Warren CJ stated in Sudi that the Director’s decision bore “no brand of invalidity upon its forehead”: at [23].

Both the February and March Orders themselves bore no brand or mark of invalidity on their face or forehead. On their face, the February and March Orders appeared to comply with the requirements in ss 137 and 138 of the Act. It was only when evidence of what occurred in the arbitration proceedings were before the Court (including the transcript) was closely examined that the errors suggested by the defendant can be seen.

The view I have taken is consistent with the observations of Marks J in Franklins v NUW at 295, which states as follows:

My view is also consistent with the jurisdiction of courts in criminal proceedings albeit, as noted above, proceedings under s 139 of the Act are civil proceedings. In criminal proceedings, “the indictment is the originating process that invests the court with jurisdiction”: Swansson v R; Henry v R (2007) 69 NSWLR 406; [2007] NSWCCA 67 at 432 [164] (Simpson J, as her Honour then was); see also R v Janceski (2005) 64 NSWLR 10; [2005] NSWCCA 281; R v Halmi (2005) 62 NSWLR 263; [2005] NSWCCA 2. Where an accused prosecuted on indictment makes a defence is that the legislation creating the offence is invalid, that is a collateral attack in the Ousley sense: Enid Campbell “Collateral Challenge of the Validity of Governmental Action” (1998) 24 Monash University Law Review 272 at 273.

I agree with the prosecutor that, to use the words of McHugh J in Ousley, the “primary object” of proceedings under s 139 of the Act “is not the setting aside or modification” of the Commission’s dispute orders. It is “merely an incident in determining other issues”.

The validity of the dispute orders does not go to this Court’s jurisdiction. Given that the primary object of this matter is to determine what action the Supreme Court should take for an alleged contravention of a dispute order, not to scrutinise the validity of the dispute order, the attacks are an incident in determining other issues.

It follows that I reject the submission of the defendant that the legal validity of the dispute orders is an issue as to the jurisdiction of this Court. The defendant’s challenges on the validity of the dispute orders should be characterised as collateral attacks.

I turn next to consider whether s 179 of the Act prevents a collateral attack.

In Breckler, the High Court suggested that a strongly worded privative clause might oust collateral challenge but this was not decided: see Public Service Association of South Australia Inc v Industrial Relations Commission (SA) (2012) 249 CLR 398; [2012] HCA 25 at 424 [66] (Gummow, Hayne, Crennan, Kiefel and Bell JJ, as Kiefel CJ then was).

Section 179 of the Act limits the power of courts and tribunals to review decisions of the Commission. That section relevantly states:

Privative clauses, like s 179 of the Act, that impose limits on the granting by this Court of remedies in the nature of judicial review from industrial tribunals in New South Wales have a long history: see, eg, s 301(2) of the 1991 Act; Industrial Arbitration Act 1940 (NSW) (repealed) s 84(1)(a) (“the 1940 Act”); Government and Related Employees' Tribunal Act 1980 (NSW) (repealed) s 43(2) (“GREAT Act”). As Kirby P (as his Honour then was) explained in Cepus v Industrial Court of New South Wales and Anor (1995) 60 IR 113 (“Cepus”) at 114:

Indeed, his Honour noted that the Court of Appeal had been deferential to decisions of the then-Industrial Court notwithstanding the fact that the Court of Appeal had the power to review for jurisdictional error: see Walker v Industrial Court of New South Wales (1994) 53 IR 121. Kirby P stated that decisions that there is “no business of [the Court of Appeal] to disturb” a decision of the Industrial Court that followed “a long-established practice of the Industrial Court and its predecessor”: Cepus at 115.

In Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1 (“Kirk”), the High Court held that the supervisory role of State Supreme Courts exercised through the grant of prohibition, certiorari and mandamus (and habeas corpus) was at the time of Federation, and is today, a “defining characteristic” of those courts: at 580-581 [97]-[98] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ, as Kiefel CJ then was). At 581 [100], the Court held:

In essence, the Court held that judicial review for jurisdictional error by State executive decision-makers and inferior courts may not be validly circumscribed or circumvented by privative clauses. In relation to s 179 of the Act, the Court held at 582-583 [104]-[105]:

In its then form, s 179 of the Act pertained to both the Industrial Court and the Industrial Relations Commission. Given the abolition of the Industrial Court, s 179 now only deals with decisions of the Commission. That change is not a matter of any materiality and the High Court’s analysis of s 179 in the form it was when Kirk was decided should be applied to s 179 in its current form.

Accordingly, in judicial review proceedings, it is within the power of this Court to determine whether orders made by the Commission are purported decisions attended by jurisdictional error or decisions within jurisdiction. But if the Court concludes that they are decisions within power and not infected with jurisdictional error, even if they involve non-jurisdictional errors, s 179 of the Act denies the availability of an “order in the nature of prohibition, certiorari or mandamus, by injunction or declaration or otherwise”. In the event that a decision is infected with jurisdictional error, it is not a decision to which s 179 applies.

It follows from the High Court’s construction in Kirk that s 179 of the Act has nothing to say about the availability of collateral review where a decision is infected with jurisdictional error. Although this issue was left open in Education Secretary v AEU at [229]-[230], I am of the view that the proper construction of s 179 of the Act does not evince a legislative intention to prevent collateral attack on putative jurisdictional error.

The next issue is whether the Court has discretion to entertain the collateral attack.

Historically, collateral challenge of decisions of administrative bodies commonly occurred in English courts before the modern development and conceptualisation of administrative law. In Amnon Rubinstein’s book, Jurisdiction and Illegality (Clarendon Press, 1965) (“Rubinstein”), it was stated at p 54 that:

The old central common law courts conducted collateral review “without question” on the validity of orders made by justices of the peace and by inferior courts in actions for trespass, replevin, and false imprisonment: see, eg, Commins v Massam (1642) 82 ER 473 at 473 (Heath J). It was noted that “[b]y the common law the regularity of the proceedings under a summary jurisdiction may be questioned in a collateral action”: William Paley, The Law and Practice of Summary Convictions on Penal Statutes by Justices of the Peace (S. Sweet, 2nd ed, 1827) at page 330, citing Terry v Huntington (1679) 145 ER 557.

The Court of King’s Bench (whose jurisdiction was inherited by this Court under s 3 of the Australian Courts Act 1828 (Imp)) regularly examined the legality of decisions of Sewer Commissioners in actions of replevin and trespass brought against them: see Harold Weintraub, “English Origins of Judicial Review by Prerogative Writ: Certiorari and Mandamus” (1963) 9 New York Law Forum 478 at 505-508.

This history of collateral review in which the validity of the decision of an inferior court or executive decision-maker was impugned in tort cases before the development of modern administrative law was acknowledged in A v New South Wales (2007) 230 CLR 500; [2007] HCA 10 at 523 [94] (Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ) as follows:

Early decisions of the High Court also allowed collateral challenges. In Widgee Shire Council v Bonney (1907) 4 CLR 977, the High Court considered the validity of delegated legislation that was challenged collaterally. There was no issue that the validity of the delegated legislation in question could be collaterally challenged although Isaacs J opined at 985-986 that a “person charged with contravention of a by-law may, as in this case, defend himself if he can demonstrate its invalidity”. Collateral review was similarly entertained by the High Court in Dignan v Australian Steamships Pty Ltd (1931) 45 CLR 188.

Subsequent decisions, however, appear to have attempted to narrow the scope and availability of collateral review. This has occurred at the same time as the body of administrative law was growing and developing.

In Murphy v The Queen (1989) 167 CLR 94, the defendant sought to impugn the validity of a warrant under which incriminating evidence had been collected against him. Mason CJ and Toohey J held at 105-106 that the admissibility of evidence in a criminal proceeding turned on the “existence of a warrant” and that the trial judge ought to “determine merely whether the warrant was regularly granted by the Supreme Court”. Their Honours emphasised that the issue before the trial judge was not one on the “sufficiency of grounds for granting” the warrant: at 105.

In Ousley, three Justices in separate judgments suggested that the Court in Murphy had confined the scope of collateral challenge to an error appearing on the face of a warrant: at 79 (Toohey J), 87 (Gaudron J), 124 (Gummow J). McHugh J, however, would have broadened the scope of collateral challenge and argued at 100 that an administrative act is susceptible to collateral challenge on the broad basis of jurisdictional error.

Following these decisions, Australian courts have allowed collateral review in some circumstances but not allowed it in other circumstances. There are many examples but I highlight several significant decisions.

In Federal Airports Corporation v Aerolineas Argentinas (1997) 76 FCR 582, the Full Court of the Federal Court held it was open to a number of airlines to bring an action for the recovery of money they paid in response to an invalid administrative determination without the airlines first having that determination set aside.

In Jacobs v OneSteel, the Full Court of the Supreme Court of South Australia held that the Workers Compensation Tribunal could determine a challenge to the validity of its rules.

In Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11 (“Bhardwaj”), the majority of the High Court held that the Immigration Review Tribunal was permitted to disregard its own purported decision vitiated by jurisdictional error and to remake the decision afresh. The Tribunal could do so even in the absence of any order by a court of competent jurisdiction quashing the original purported decision or declaring it to be invalid. As Warren CJ explained in Sudi at 566 [30]:

In Police v Stacy (2016) 125 SASR 50; [2016] SASC 54, the Court of Criminal Appeal for South Australia held that a Magistrate can entertain collateral challenges raised by the defendant to defend the prosecution by submitting that barring orders imposed by the police on the basis that it is said to be invalid on its face, not supported by the relevant Act or on the ground of Wednesbury unreasonableness: at 73 [99]-[100] (Parker J). This followed an earlier decision that held that a warrant may be subject to collateral challenge on the grounds of unreasonableness in the Wednesbury sense: Question of Law Reserved on Acquittal (No 5 of 1999) (2000) 76 SASR 356; [2000] SASC 51 at [27]-[30], [153] (Mullighan and Williams JJ).

On the other hand, in Krulow v Glamorgan Spring Bay Council (2013) 23 Tas R 264; [2013] TASFC 11, the Full Court of the Supreme Court of Tasmania held that an order of the Resource Management and Appeal Tribunal could not be collaterally challenged in the Magistrates’ Court in criminal proceedings. This was so, despite the defendants arguing that the Tribunal’s orders were infected by jurisdictional error, because the relevant legislation had created a direct appeal mechanism to the Supreme Court from a Tribunal order, the Tribunal itself had no enforcement powers and, as a matter of policy, a collateral challenge could undermine public confidence in the authoritative status of the Tribunal’s orders: at 282-283, 299-300 (Estcourt J with whom Blow CJ and Porter J agreed).

In Education Secretary v AEU [2022], I held that it was open for the defendant to bring a collateral challenge subject to discretionary issues raised by the prosecutor: at [225]. I had left open and did not deal with the issue of whether the Court should decline, as a matter of discretion, to deal with the validity of the orders in issue in that case because it was not fully argued.

I agree with the submission of the prosecutor that the primary method to attack the validity of the dispute orders is by appealing (with leave) to the Full Bench or by seeking judicial review. It should be stated that collateral attacks in civil and criminal proceedings require a judicial review-like process. It requires courts and tribunals to engage in the type of legal supervision that is typically undertaken through formal judicial review. As Warren CJ stated in Sudi, collateral challenge could require a “trial within a trial”, which was inconsistent with the legislative intent of establishing VCAT as a cheap and efficient forum for specific disputes.

Allowing collateral challenges would thus create various challenges and difficulties. In Hinton Demolitions Pty Ltd v Lower (No 2) (1971) 1 SASR 512, Bray CJ stated at 520 that there could be “evil consequences which might result if the nullity of an unknown quantity of administrative acts can be urged by anyone at any time in any form of proceeding in which they are incidentally in question”. His Honour also drew attention to the “apparent contradiction” in the notion that even when a court may exercise its discretion to refuse prerogative relief (because the applicant has in some way disqualified themselves from relief, relief is futile or some other reasons) yet nevertheless the disputed order or adjudication may still remain a nullity which can be asserted by anyone in any proceedings in which its validity is incidentally called in question: at 521. The scepticism of collateral challenge was also shared by Wells J, who thought that collateral challenge should only be available where Parliament has “unequivocally authorise[d]” it: at 549.

In my view, freely allowing collateral challenge in all cases is not desirable. As noted by Bray CJ, collateral challenge may provide a means of circumventing limitations on judicial review, such as time limits for commencing proceedings (see, eg, Uniform Civil Procedure Rules 2005 (NSW) r 59.10(1) (“UCPR”), which requires must be commenced within 3 months of the date of the decision but leaves a discretion on the Court to extend time). Relevantly, the administrative body whose decision is challenged may not be a party to the proceeding in which its decision is collaterally challenged (cf UCPR r 59.3(3)) and would have no opportunity to defend its decision. Furthermore, not every party who is interested in maintaining the decision (who would ordinarily be required to be joined as a defendant: UCPR r 59.3(2)) will necessarily be a party to, or even be notified about, the proceedings where the decision is collaterally challenged. This could potentially raise serious concerns with procedural fairness. For other criticisms, see generally Enid Campbell “Collateral Challenge of the Validity of Governmental Action” (1998) 24 Monash University Law Review 272 at 274-275.

On the other hand, there are obvious benefits to allowing collateral review. Denying collateral challenge would risk the fragmentation and unnecessary duplication of proceedings and there is no suggestion that inferior courts are not competent to deal with difficult questions of validity: Ousley at 147-148 (Kirby J); Jacobs v OneSteel at 575 [18] (Debelle J). The fragmentation and duplication of proceedings can create unnecessary expense and delay.

Aside from the benefits, a presumption in favour of allowing collateral challenges can be justified by the entitlement to vindicate legal rights. This was the reasoning of Gummow J and McHugh J, writing separately, in Ousley in the case of a criminal accused: at 100-105 (McHugh J); 120 (Gummow J). In Boddington v British Transport Police [1999] 2 AC 143, the House of Lords upheld a presumption in favour of collateral challenge on that very basis. Lord Irvine LC said:

Emeritius Professor Mark Aronson wrote in his article, “Criteria for Restricting Collateral Challenge” (1998) 9 Public Law Review 237:

It has been emphasised, and I respectfully agree, that the “starting point for determining whether collateral challenge is available is the legislation governing the matter central to the proceedings”: Frugtniet v Attorney-General (NSW) (1997) 41 NSWLR 588 at 602 (Beazley JA, as Her Excellency then was) (“Frugtniet”); see also Sudi at 566 [28] (Warren CJ); Krulow at 299 [154] (Estcourt J).

Where the legislation provides a clear answer, it must, of course, be followed. Usually, the legislation does not expressly address the availability of collateral challenge. In most cases, the objects of the Act and provisions relating to the powers and functions of the relevant court or tribunal will be of assistance. However, absent any assistance from the broader legislative regime, the court must decide for itself whether it will entertain the collateral attack.

I respectfully adopt the remarks of Besanko J (with whom Duggan, Vanstone and Layton JJ agreed) in Jacobs v OneSteel at 594 [95] as follows:

In my view, these remarks are consistent with the weight of authority on collateral attack in Australia; the development of a body of administrative law that reduces the need for the availability of collateral review; and, the recognition following Kirk that the Commonwealth Constitution entrenches a minimum level of judicial review for decisions of State and Commonwealth executive bodies and inferior courts.

In the authorities surveyed above, various distinctions have been suggested to distinguish between circumstances where a collateral review is allowed and when it is not allowed. In Ousley, McHugh J proposed at 99-100 a distinction based on whether decisions are made within or outside jurisdiction. Bray CJ suggested in Hinton that it would depend on whether they are “void” or “voidable” decisions: at 523. In Jacobs v OneSteel, Besanko J placed emphasis on whether they were “simple” ultra vires errors or whether they required more substantial evidence: at 591 [82].

Three Justices of the High Court suggested that collateral review is available where the error appears on the face of the record: Ousley at 79 (Toohey J), 87 (Gaudron J), 124 (Gummow J). This suggestion has been seriously doubted in subsequent cases: Australian Crime Commission v Marrapodi (2012) 42 WAR 351; [2012] WASCA 103 at 381 [138] (Allanson J); Morrison v Milner (2009) 181 IR 443; [2009] NSWIRComm 57 at 461 [63] (Boland J, President, Kavanagh and Backman JJ). The Court of Appeal in Frugtniet rejected an attempt to restrict collateral review to facial invalidity.

In my view, there is no single test: Zweck v Town of Gawler (2015) 124 SASR 319; [2015] SASCFC 172 at 333 [73] (Blue J). In Emeritius Professor Enid Campbell’s article, “Collateral Challenge of the Validity of Governmental Action” (1998) 24 Monash University Law Review 272, she referred to what was said by Sir William Wade in his book, Administrative Law (Oxford University Press, 5th ed, 1982) at 330:

The better approach is a multi-factorial test that considers and balances the circumstances of each case. A non-exhaustive list of considerations was set out by Besanko J in Jacobs v OneSteel at 593-594 [93] as follows:

However, Besanko J opined that such a discretion has not been recognised in the common law. His Honour stated at 594-595 [94]-[95]:

The obligation to act “expeditiously” in s 139(1) of the Act does favour against allowing collateral review. However, in my view, the statutory mandate to act “expeditiously”, without more, does not evince a statutory intention to completely deny this Court the power to entertain collateral review when dealing with an alleged contravention of dispute orders. In my view, the statutory edict in s 139(1) of the Act to act expeditiously provides a basis for a discretion to decline to entertain a collateral attack. That discretion should be exercised if hearing and determining the attack would cause significant and undue delay or disruption to the orderly disposition of the proceedings such that the Court could not fulfil the mandate imposed by Parliament. This would particularly be the case if the grounds raised by the party bringing the collateral attack are devoid of merit. In exercising that discretion, this Court should have regard to the factors outlined by Besanko J in Jacobs v OneSteel at 593-594 [93] but recognising that that is not an exhaustive list of factors and other matters may be relevant.

As it was not argued by the parties, I consider it unnecessary and undesirable to decide in this case whether courts have a more general discretion to decline to hear and determine a collateral attack, including whether it may be sourced from the inherent power that comes with the status of this Court as a superior court of record (NH v Director of Public Prosecutions (SA) (2016) 260 CLR 546; [2016] HCA 33 at 579-580 [67], 581 [69] (French CJ, Kiefel and Bell JJ, as Kiefel CJ then was); PT Bayan Resources TBK v BCBC Singapore Pte Ltd (2015) 258 CLR 1; [2015] HCA 36 at 17 [37] (French CJ, Kiefel, Bell, Gageler and Gordon JJ, as Kiefel CJ then was)) or the implied power of inferior courts (TKWY v The Queen (2002) 212 CLR 124; [2002] HCA 46 at 138 [44] (Gaudron J); R v Mosely (1992) 28 NSWLR 735 at 739 (Gleeson CJ with whom Kirby P, as his Honour then was, and Mahoney JA agreed)) to prevent abuses of its processes. That question would have to wait another day.

The dispute orders of are administrative decisions because the Commission does not exercise judicial power: Australian Salaried Medical Officers' Federation (NSW) v Secretary of Health [2018] NSWIRComm 1052 at [27] (Commissioner Seymour); Industrial Relations Secretary v Public Service Association and Professional Officers Association Amalgamated Union of New South Wales (2021) 303 IR 322; [2021] NSWSC 160 at [114]-[115] (Rothman J) (“Industrial Relations Secretary v PSA [2021]”). Ousley and Breckler make it clear that administrative decisions can generally be collaterally challenged in a court: Sudi at 565 [26] (Warren CJ).

The challenge in this case was not an attack that went to the face of the orders but required evidence of the arbitration proceedings before the Commission. The evidence primarily relied upon and argued between the parties was the transcript of both the First and Second Disputes, which was not a substantial amount.

I note that one factor that weighs against allowing collateral attack in proceedings brought under s 139 of the Act is the fact that this Court cannot make orders as to the parties’ costs: s 355E(3) of the Act. In contrast, costs may be awarded in judicial review proceedings. However, I am satisfied that this is not a significant issue because the additional evidence was not substantial.

The parties that have an interest in the Commission’s orders are the prosecutor and defendant. It is noteworthy that the Commission is not joined as a party to these proceedings. In ordinary judicial review proceedings, the Commission would be required to be joined as a defendant, but not as the first defendant unless there is no other defendant: UCPR r 59.3(4); Practice Note SC CL 3 at [13]. The reason for this is clear: if the Commission is not joined as a party, the Commission will not be bound by any order made requiring it to take further steps: Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284 at 382 [55] (Basten JA with whom Handley and McColl JJA agreed) (“Vegan”).

It would be highly undesirable to review decisions of the Commission without that body being a party to the proceeding: see Transport for NSW v Chapoterera [2022] NSWSC 976 at [39] (Walton J). However, I am satisfied that nothing turns on this point because of the principles enunciated in R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 (“Hardiman”). In Hardiman, Gibbs, Stephen, Mason, Aickin and Wilson JJ stated at 35-36:

The Hardiman principle is one “which is honoured in relation to every adjudicative tribunal that operates in Australia and its States”: XX v Attorney General of New South Wales [2011] NSWSC 658 at [50] (Rothman J). The practice of the Commission has been to file a submitting appearance save as to costs when its decisions are impugned on judicial review. In these circumstances, I do not consider that there is prejudice to the Commission or any party to proceed to determine the collateral attack without the Commission as a party.

I have gleaned from the material before me that certain documents were tendered in the arbitration proceedings before the Commission. It appears that some of those documents are not before the Court. Nothing turns on this either. Practice Note SC CL 3, which concerns administrative and industrial law matters in the Common Law Division, does not require that all the evidence before the decision-maker be annexed or exhibited unless there is a direction from the Court to the contrary: see [15]-[19]. In circumstances where there is review for jurisdictional error, the Practice Note requires that the plaintiff to file material that constitutes the “record”, and any additional material must have a connection between the alleged jurisdictional error.

The evidentiary material before me includes the notification made under s 130 of the Act, which is the initiating document in the Commission, and the terms of the impugned order. This material constitutes the “record” as that term is understood in Craig v South Australia (1995) 184 CLR 163 at 180-183 (Brennan, Deane, Toohey, Gaudron and McHugh JJ, as Brennan CJ then was). The evidence before the Commission and transcript of the proceedings do not form part of the “record” unless they are incorporated. Although the reasons of the “court or tribunal for its ultimate determination” is included in the “record” by virtue of s 69(4) of the Supreme Court Act 1970 (NSW) (“Supreme Court Act”), it is common ground between the parties that the Commission gave no reasons.

I note that the February Orders were made on 14 February 2022. It appears to me that the earliest time that the issue of validity of the February Orders was raised to the Court was in the written submissions of the defendant filed on 27 May 2022. (At the hearing, counsel for the defendant stated that the issue of validity may have been raised in the directions hearing before Beech-Jones CJ at CL but this does not appear from the face of the transcript of that proceeding.) Assuming that the issue of validity was only first raised on 27 May 2022, this is more than three months from the date that the orders were made by about one fortnight. Nevertheless, I do not consider there to be any prejudice or significance from this. Having regard to the principles stated by Pepper J in in Wingecarribee Shire Council v Uri Turgeman trading as Uri T Design [2018] NSWLEC 146 at [34], I consider that there would be a high likelihood that an extension of time would be granted had a judicial review application been properly filed on 27 May 2022. I am satisfied that allowing a collateral challenge in this case does not by‑pass the protective mechanisms associated with judicial review proceedings. And I am satisfied that the prosecutor has had an opportunity to be heard on the validity of the Commission’s orders and is not prejudiced by this delay. The prosecutor did not submit to the contrary.

I agree with the prosecutor that the statutory provisions providing for an appeal to the Full Bench would ordinarily weigh against the availability of ordinary judicial review proceedings (Canberra Cleaners Pty Ltd v Commissioner of ACT Revenue (2008) 336 FLR 1; [2018] ACTSC 208 at 19-20 [90]-[98] (McWilliam AsJ; Hill v King (1993) 31 NSWLR 654 at 657 (Clarke, Handley and Sheller JJA)) and this weighs very strongly against allowing collateral attack. However, it is also relevant that an appeal to the Full Bench is subject to a grant of leave. As discussed above, leave is not automatically granted by an applicant that merely raises, without more, jurisdictional issues: Knowles v Anglican Church at 381-382 (Walton J, Vice-President, Glynn J and Commissioner Patterson). Even where appeal grounds that can, if made out, amount to jurisdictional errors are raised, it should not be presumed that leave would be automatically granted. I consider that the prospect of the Full Bench granting leave to appeal after the effect of the dispute orders have ended is low.

In this respect, the raising of a collateral attack in proceedings under s 139 of the Act should be strongly discouraged. A party aggrieved by a decision of the Commission should seek an appeal or review by the primary means of doing so. I understand that dispute orders of the kind in this case are generally made on the eve of proposed industrial action with limited time to seek leave to appeal or bring judicial review proceedings. But this does not excuse the failure to do those acts and then raise a collateral attack once any contravention proceedings are initiated. One potential avenue is that judicial review proceedings and contravention proceedings are commenced at around the same time and this Court can, if appropriate having regard to the statutory mandate to act expeditiously, join the two proceedings so that they are heard simultaneously.

It is clear that any judicial review proceeding would be commenced in this Court. This Court has an inherent supervisory function and has the power to make orders in the nature of prerogative writs and grant declaratory and injunctive relief. In relation to factor (7) in Besanko J’s list, this Court is the most appropriate forum to determine the validity of the Commission’s orders.

It is relevant that the errors raised by the defendant may amount to jurisdictional error such that, if made out, the decision of the Commission may be “properly regarded, in law, as no decision at all”: Bhardwaj at 614-615 [51] (Gaudron and Gummow JJ). If the defendant were, after these proceedings have concluded, to challenge the validity of the dispute orders by judicial review proceedings, they would be before the Common Law Division of this Court in any case.

It is also relevant that, if collateral attack were not allowed, the defendant may have monetary penalties imposed against them in circumstances where, if the attack was allowed, they may not.

The grounds relied on by the defendant raise important issues for the Commission and its practices and procedures. The issue as to whether the Commission is under an obligation to give reasons is an especially important one. I observe that, since June this year, dispute orders have been made on at least five occasions: Health Secretary v New South Wales Nurses and Midwives’ Association [2022] NSWIRComm 1071 (Commissioner Sloan) (“Health Secretary v NSWNMA [2022] NSWIRComm 1071”); Transport Secretary v AWU (Commissioner Sloan); Secretary Department of Education v Australian Education Union of New South Wales Teachers Federation Branch [2022] NSWIRComm 1051 (Commissioner O’Sullivan) (and on appeal in Education Secretary v NSWTF [2022] NSWIRComm 1049 (Chief Commissioner Constant, Commissioner Sloan, and Commissioner Webster)); Health Secretary v NSWMNA [2022] NSWIRComm 1047 (Commissioner Sloan); Industrial Relations Secretary v PSA [2022] (Commissioner Sloan). On each occasion, the Commission has made orders with great urgency and published reasons for decision. Thus, resolution of the alleged errors can have significant implications for industrial dispute proceedings in the Commission.

On balance, the discretionary factors favour allowing the defendant to raise their collateral attack on the dispute orders. I now turn to the merits of those grounds.

It is convenient to begin with the submissions of the defendant.

The defendant submitted that, although there is no express obligation in the Act on the Commission to give reasons, there was an implied statutory duty on the Commissioner to give reasons for three reasons.

Counsel for the defendant submitted that a failure by an administrative decision-maker to comply with an obligation to give reasons for their decision constitutes jurisdictional error. Mr Boncardo relied on Brereton JA’s judgment in Li v Attorney General for New South Wales (2019) 99 NSWLR 630; [2019] NSWCA 95 at [152]-[153] and [159] (“Li v A-G”) which concluded that a failure to give adequate reasons, where there was a duty to do so, was a species of jurisdictional error. Counsel for the defendant submitted that this Court should follow Brereton JA’s analysis hold that a failure to give reasons, where an administrative decision-maker is obliged to give reasons for decision, will constitute jurisdictional error on the basis that the decision-maker will have constructively failed to exercise their jurisdiction, as they would have failed to properly perform their decision-making functions, conduct the proceeding in accordance with proper process and bring an independent and impartial mind to bear on the application before them.

The defendant submitted that the Commissioner did not exercise the jurisdiction conferred on him because he did not engage with the substance of the Association’s case in the First or Second Disputes. The Association’s representatives, Ms Davis and Ms Beard, in the First and Second Disputes, respectively, had raised substantial matters that could have influenced the Commissioner to determine to not make orders in the exercise of his discretion.

The defendant submitted that the dialogue between the Commissioner and Ms Beard in the Second Dispute, which was relied upon by the prosecutor, did not respond to the issues raised by the Association. The issues raised by Ms Beard was that the Secretary had been in breach of the award, the Secretary did not come with clean hands, the making of dispute orders would take away the Association’s bargaining power and the industrial action being threatened had little practical adverse consequences. The Commissioner’s response that the Association could notify an industrial dispute or seek a variation of the award “says nothing and is not capable of saying anything as to why the [C]ommissioner determined, one way or another, not to uphold Ms Beard’s submissions and instead to uphold the submissions of the representative for the [S]ecretary. There was in substance, no consideration at all of any of the arguments put”.

The prosecutor submitted that the errors alleged by the defendant were without merit.

The prosecutor accepted that no oral or written reasons were given by the Commissioner but submitted that the Commission was not under an obligation to give reasons for the following reasons:

The prosecutor also submitted that:

The prosecutor distinguished authorities that imposed requirements on the Commission to give reasons in other contexts, such as unfair dismissal applications, where there is a hearing and usually there is a period of time for reasons to be published. It was submitted that those authorities provide little assistance for dispute orders where time for reserved decisions are usually not possible. It was emphasised that the need for the Commission to act promptly meant that, on the proper reading of the Act, there was no requirement for the Commissioner to provide reasons.

The prosecutor submitted that, on a fair reading of FBEU v FRNSW [2012], the Full Bench did not find that there was a requirement for the Commissioner to give reasons when making dispute orders.

During the hearing, the prosecutor suggested, but did not express a “concluded view”, that some of the actions that may be taken by the Commission in arbitration proceedings under s 136 of the Act may require reasons. This included the making or varying of an award under s 136(1)(b) of the Act. The prosecutor suggested that this may be because s 13(1) of the Act requires an award to be in writing. However, it was emphasised that the making of dispute orders under s 136(1)(c) of the Act did not require reasons.

When this last submission was put, I gave counsel for the prosecutor the opportunity to file a note, if she wished, concerning the construction of the Act and why some provisions in s 136(1) of the Act attract a duty to give reasons but others do not. In an email sent by my Associate, I extended that opportunity to the defendant and made clear that notes were to be filed within five calendar days. Neither party filed notes on this matter.

In relation to the Second Dispute, the prosecutor submitted that the transcript of the arbitration proceedings discloses consideration by the Commissioner of the defendant’s arguments in a dialogue with the Association’s representative. The prosecutor submitted that this dialogue demonstrates, not just mere consideration, but engagement with the arguments of the defendant.

In relation to the First Dispute, the prosecutor accepted that it is not as clear in the transcript. The prosecutor submitted that this is, in part, because of the urgency that arose in the hearing. It was noted that the orders were made at or around 4:00pm on the day before the proposed industrial action.

When prompted, the prosecutor did not have an authority for the proposition that an exchange between counsel or representative of a party and a tribunal during the course of argument could constitute a satisfaction of the requirement to consider a party’s case.

The principal ground of attack by the defendant concerned the Commissioner’s failure to give reasons in making both the February and March Orders.

Unlike some other tribunals in New South Wales, there is no express statutory obligation imposed on the Commission to give reasons for their decision. Where a statute is silent, the first question is whether there is an obligation to give reasons. The second question is the content and adequacy of the reasons. Recent authorities in the High Court and intermediate appellate courts have predominantly concerned the second question because there has been a proliferation of statutory provisions that impose a duty on tribunals and administrative decision-makers to give reasons: see, eg, Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 (“Wingfoot”).

The starting point is to consider the High Court’s decision in Public Service Board (NSW) v Osmond (1986) 159 CLR 656; [1986] HCA 7 (“Osmond”) and then to consider other authorities relevant to this issue.

Mr Osmond was an officer who was employed for many years in the public service applied for an appointment by way of promotion to the vacant position of Chairman of the Local Lands Boards. The Department Head recommended that another applicant be appointed, Mr Osmond appealed to the Public Service Board pursuant to s 116 of the Public Service Act 1979 (NSW) (repealed) (“Public Service Act”). The Board dismissed his appeal. Mr Osmond requested the Board to give reasons. The Board refused.

Mr Osmond then sought declaratory and other relief in the Supreme Court. Hunt J dismissed the matter and held that the Board, in the absence of a statutory requirement to the contrary, is not obliged to give reasons for its decision: Osmond v Public Service Board (NSW) [1983] 1 NSWLR 691 at 698; (1983) 5 IR 238. On appeal, a majority of the Court of Appeal held that the Board was obliged to give reasons and ordered it to do so: Osmond v Public Service Board (NSW) [1984] 3 NSWLR 447 at 468-470 (Kirby P, as his Honour then was), 480-481 (Priestley JA).

The High Court overturned the Court of Appeal’s decision. Gibbs CJ (with whom Brennan J, as his Honour then was, and Dawson J, writing separately, agreed) held at 662 that:

After reviewing the authorities, including those relied on by the majority in the Court of Appeal, Gibbs CJ distinguished between the rule of reasons being usually required for judicial decisions and the rule applicable for administrative decisions. Gibbs CJ stated at 667 that:

Gibbs CJ rejected the argument by Kirby P (as his Honour then was) in the Court of Appeal that a duty to give reasons should be enacted to reflect social changes. In the Court of Appeal, Kirby P had drawn on the fact that there were many legislative reforms that, by that time, had required reasons to be given by administrative decision-makers. Gibbs CJ stated at 669:

Gibbs CJ agreed (at 670) with the comment of Glass JA, who dissented in the Court of Appeal, as follows:

Wilson J agreed with the conclusion of Gibbs CJ at 671. His Honour also noted (at 673) that the legislation made it clear that the Parliament deliberately refrained from imposing any obligation on the Board to give reasons for a decision on an appeal under s 116 of the Public Service Act. This is because the GREAT Act expressly imposed such an obligation on the Tribunal whilst s 116 of the Public Service Act remained silent. This was notwithstanding that s 116 was amended during the legislative session in which the GREAT Act was enacted.

In taking a purposive approach to statutory interpretation, Wilson J stated at 674:

Further, Deane J said at 675-676 that:

Subsequent decisions have relied upon a passage of Gibbs CJ that a duty may be found “in special circumstances”. His Honour stated at 670 that:

Another reference to “special circumstances” can be found in the decision of Deane J at 676 where his Honour stated:

The English courts have maintained the orthodox position that there is no general duty to give reasons for administrative decisions but have acknowledged that there may be certain circumstances where reasons are required as an aspect of procedural fairness.

In R v Secretary of State for the Home Department; Ex parte Doody [1994] 1 AC 531, the House of Lords affirmed that there is no general duty to give reasons but held that a duty may “in appropriate circumstances be implied” by asking “[i]s refusal to give reasons fair?”: at 564 (Lord Mustill with whom Lord Keith of Kinkel, Lord Lane, Lord Templeman and Lord Browne-Wilkinson agreed).

The House of Lords held that the Secretary of State for the Home Department, in exercising their rather unique power under s 61 of the Criminal Justice Act 1967 (UK) to fix the date that a person serving a sentence of life imprisonment might be released on licence, was required to give reasons when the date set differed from the recommendation of the trial judge: at 565 (Lord Mustill with whom Lord Keith of Kinkel, Lord Lane, Lord Templeman and Lord Browne-Wilkinson agreed).

The House of Lords cited approvingly a list of factors set out by McCowan LJ in R v Civil Service Appeal Board, Ex parte Cunningham [1992] ICR 816 at 831 that supported a requirement that the Civil Service Appeal Board, when setting the amount of compensation for unfair dismissal, to give reasons. The list is as follows:

In addressing whether the Board was obliged to give reasons in relation to its consideration of penalty in a claim for unfair dismissal, Lord Donaldson MR said at 827:

Although English courts frequently affirm that there is no general duty to give reasons, it has been described that “[t]he English cases may have reached a “tipping point” at which the common law principle that there is no general duty to provide reasons has become so heavily qualified that the exception is now the rule which itself is subject to various exceptions”: Mark Aronson, Matthew Groves and Greg Weeks, Judicial Review of Administrative Action and Government Liability (Lawbook, 6th ed, 2017) at 632 [8.440].

In my view, the approach of English courts should not be followed in Australia because it is inconsistent with Osmond: see PSA v Treasury Secretary [2014] at 329-330 [43] (Basten JA with whom Ward JA, as her Honour then was, and Bergin CJ at Eq agreed); Shaw v Deputy Registrar Buljan [2016] FCA 829 at [45] (Charlesworth J). I also doubt whether “fairness” can be a helpful or predictable guide to the content of natural justice to justify the imposition of a duty to give reasons.

In Pettitt v Dunkley [1971] 1 NSWLR 376 (“Pettitt v Dunkley”), the Court of Appeal held that "an obligation, concerning the giving of reasons, lies upon any court, including an intermediate court of appeal, so far as it is necessary to enable the case properly and sufficiently to be laid before the higher appellate court": at 388 (Asprey JA).

Asprey JA said at 381:

His Honour stated at 382:

Gibbs CJ observed in Osmond at 666 that:

There are several Court of Appeal authorities following Osmond that shed light on the approach to be taken with respect to whether there is an obligation on administrative decision-makers to give reasons where there is no express statutory duty to do so.

In Attorney-General (NSW) v Kennedy Miller Television Pty Ltd (1998) 43 NSWLR 729 (“Kennedy Miller TV”), the Court of Appeal held that a costs assessor was obliged to give reasons.

It is noteworthy that s 208L(1) of the Legal Profession Act 1987 (NSW) (repealed) (“LP Act”) (following amendments made by the Legal Profession Reform Act 1993 (NSW)) gave parties to an application for a costs assessments a right to appeal to the Supreme Court from the decisions and determinations of the costs assessor on a matter of law. Section 208M(1) provided a right to a party to an application relating to a bill of costs to seek leave of the Supreme Court to appeal against the determination of the application by a costs assessor.

On the assumption that a costs assessor exercises an administrative function, Priestley JA (with whom Handley and Powell JJA agreed) found that “the rights of appeal incorporated in the new assessment system point very powerfully” towards an implication that the costs assessor needs to give reasons: at 734. His Honour stated that Div 6 of Pt 11 of the LP Act (which contains ss 208L and 208M) “provides a particularly clear example of the kind of “special” situation spoken of by both Gibbs CJ and Deane J”: at 735.

Priestley JA held at 735 that:

In Xuereb v Viola (1989) 18 NSWLR 453 (“Xuereb”), Cole J held that a referee appointed by this Court to inquire and report pursuant to Pt 72 of the Supreme Court Rules 1970 (NSW) is required to give reasons for their opinion at least to the extent of giving a basic explanation of the fundamental reasons which led to their opinion: at 469. This is notwithstanding that no legislative provision or rule expressly required the giving of reasons.

Cole J referred to s 23 of the Supreme Court Act, which provides that this Court “shall have all jurisdiction which may be necessary for the administration of justice in New South Wales”. His Honour held at 467 that:

Cole J noted that the wide power conferred on the Rules Committee in s 124 of the Supreme Court Act is to be read subject to the requirements of s 23. At 467, his Honour stated:

Cole J held that the obligation to adhere to the concepts of natural justice from s 23 of the Supreme Court Act required referees to give reasons. At 469, his Honour stated:

In Anderson Stuart v Treleavan (2000) 49 NSWLR 88 (“Anderson Stuart”), this Court considered whether the Strata Titles Board was required to give reasons when exercising power under s 119 of the Strata Titles Act 1973 (NSW) (repealed) in circumstances where the statute is wholly silent on the matter.

Santow J (as his Honour then was) noted that whilst the Board may not be a “quasi-judicial” body, it is at least exercising a “quasi-judicial function”. His Honour held that the Board, in light of the right to appeal, should have given reasons for their decision for a point that could have been determinative of the result: at 124 [185].

In Vegan, the Court of Appeal accepted that there was an implied statutory obligation imposed on an Appeal Panel reviewing a medical assessment under ss 327 and 328 the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (repealed) (“WIMWC Act”). Handley JA (with whom McColl JA agreed) held that the approved medical specialist had an implied duty to give reasons because there was a statutory appeal from their certificate to an Appeal Panel: at 377 [24].

The Appeal Panel was held to have an implied duty to give “proper reasons” because its function was to correct error and because there was a power to refer a matter back for further assessment: at 377 [26] (Handley JA with whom McColl JA agreed).

Basten JA (with whom Handley and McColl JJA agreed) gave three reasons why there was a duty to give reasons. The first reason given (at [109]) for that conclusion was that:

Secondly, the legislation imposed on the medical specialist, from whom an appeal could be taken to the Appeal Panel, an obligation to give reasons. Thirdly, the Act allowed for further assessments to be ordered by a court or the Commission, powers which would be hampered if no reasons were available for the certificate given by the Appeal Panel: at [116].

Importantly, it was noted that the fact that no appeal was available from the decisions of the Appeal Panel itself did not preclude the existence of an obligation to give reasons.

Vegan can be contrasted with the decision of Latham J in Inghams Enterprises v Iogha [2006] NSWSC 456 (“Inghams v Iogha”). Her Honour found that the Registrar, in exercising the “gatekeeper” function under s 327 of the WIMWC Act, did not have an obligation to give reasons. Latham J reached this conclusion because:

In the following year, the Court of Appeal in Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission of NSW & Ors [2007] NSWCA 149 (“Riverina Wines”) concluded that, when a Registrar or delegate exercising the function under s 327(4) of the WIMWC Act to decide whether an appeal can proceed, they are not under any duty to provide reasons for that decision: at [114]. Hodgson JA observed, however, that “[i]t may be different where the Registrar’s decision prevents the matter going forward, and this has the potential to finally determine rights”: at [5].

In PSA v Treasury Secretary [2014], Basten JA (with whom Ward JA, as her Honour then was, and Bergin CJ at Eq) held that the Full Bench of the Commission had an obligation to give reasons. At 329 [42], Basten JA stated:

His Honour referred to his earlier opinion in Vegan and stated at 330 [45] that:

It is noted that, when PSA v Treasury Secretary [2014] was decided, the Commission was composed of both judicial officers and Commissioners and, unlike the Commission as constituted today, the judicial officers could exercise the powers of the Industrial Court. The Industrial Court was not only a superior court of record but was a separate and distinct body to the Commission otherwise constituted: Hollingsworth v Commissioner of Police (1998) 47 NSWLR 104 at 121 (Hill J), 138-139 (Hungerford J); Taudevin v Egis Consulting Australia Pty Ltd (No 1) (2001) 131 IR 124; [2001] NSWIRComm 340 at 171-172 [137]-[138] (Wright J, President, Walton J, Vice-President, and Hungerford J) (“Taudevin”).

It is well-established that the Commission is required to give reasons when dealing with applications for unfair dismissal: see, eg, Webb v Goulburn Masonic Village (2004) 136 IR 309; [2004] NSWIRComm 258 (“Webb v Goulburn”); Ambulance Service of New South Wales v Buchtmann (2007) 160 IR 57; [2007] NSWIRComm 18 at 68 [49] (Walton J, Vice-President, Deputy Presidents Sams and Grayson) (“Buchtmann”); Lee v Energy Australia (No 4) [2011] NSWIRComm 120 at [134]-[137] (Walton J, Vice-President, Staff J and Commissioner Macdonald); Redmond v Director General, NSW Department of Health, on behalf of the Ambulance Service of New South Wales [2012] NSWIRComm 147 (Walton J, Vice-President, Backman J and Commissioner Bishop).

In Entertainment Distributors Co Pty Ltd v Burnard (1993) 49 IR 446 (“Entertainment Distributors”), the Full Bench heard an appeal from Conciliation Commissioner McMahon who had dismissed an application for unfair dismissal. Hill and Peterson JJ and Chief Commissioner Connor stated at 453:

After finding that the Conciliation Commissioner had not given sufficient reasons, the Full Bench stated at 454:

In Lord v Flight Centre (No 2), the Full Bench (Walton J, Vice-President, Schmidt J and Deputy President Grayson) upheld an appeal from Commissioner McLeay’s dismissal of the appellant’s unfair dismissal application for want of prosecution. The appellant claimed that after the decision had been given, she was not advised of the decision or of the appeal process available. It was common ground that the Commissioner later acted to dismiss the application for want of prosecution without giving either party an opportunity to be heard before that order was made. No explanation for the Commissioner’s decision was given.

The Full Bench affirmed Webb v Goulburn and held at [12] that “the Commission was obliged to give reasons for the decision”. The Full Bench concluded that, in proceedings under Pt 6 of Ch 2 of the Act, the determination of applications made under s 84 of the Act by non-judicial members of the Commission required the provision of reasons for the decision.

It was also decided that the reasons for decision must be adequate, such that the decision will disclose the steps in reasoning which led to the determination of the proceedings. At [14], the Full Bench elaborated that “the Commissioner was here required to give reasons explaining why the proceedings were dismissed for want of prosecution, albeit in the circumstances the reasons would have been short.” In that case, the mere fact that the Commissioner had given some warning or put the appellant on notice of a particular course during the hearing (as recorded in the transcript) was not sufficient to discharge the obligation to give reasons.

Although these authorities do not concern the Commission making dispute orders in arbitration, they demonstrate that, at least in certain other contexts, the Commission is under an obligation to give reasons. In light of these authorities, I consider the prosecutor’s concession that the Commission may be under a duty to give reasons in at least some contexts to be properly made.

Before turning to my consideration, I note that the parties placed reliance on FBEU v FRNSW [2012].

That case concerned an appeal to the Full Bench from the decision of Commissioner Ritchie to make dispute orders. Marks and Kavanagh JJ and Commissioner Stanton noted at [7] that:

The union appealed against the decision on the grounds that the Commissioner failed to address "the essential elements of the matters" which came before him and failed to give adequate "intelligible and readily understood" reasons: at [8]. At [10]-[11], the Full Bench held:

First, I note on the outset that this Court is not bound by decisions of the Commission or Industrial Court, whether sitting as a Full Bench or otherwise. As I explained in Education Secretary v AEU [2022], this is so notwithstanding that the Industrial Court, at the time of its existence, was a superior court of record and of equivalent status to this Court under Pt 9 of the Constitution Act 1902 (NSW): s 152 of the Act, before the repeal by cl 16 of Sch 1 to the 2016 Amendment Act, which came into effect on 8 December 2016.

This is because it is illogical for a decision of the Industrial Court to be the subject of judicial review by the inherent supervisory jurisdiction of this Court and, at the same time, bind this Court: Education Secretary v AEU [2022] at [322] (Walton J).

This follows from the federal context in which a decision of the former Australian Industrial Court was considered not binding upon the Federal Court even when the Australian Industrial Court was constituted by three Judges and the Federal Court was constituted by only one Judge, notwithstanding that both courts were superior courts of record: Education Secretary v AEU [2022] at [324] (Walton J) citing Harris v Ansett Transport Industries (Operations) Pty Ltd (1978) 45 FLR 469 at 471 (Keely J).

I add one further reason. The Full Bench of the Industrial Court had the ability to depart from its earlier decisions although it “should do so cautiously and only when compelled to the conclusion that the earlier decision is wrong”: Nguyen v Nguyen (1990) 169 CLR 245 at 269 (Dawson, Toohey and McHugh JJ), cited in Reich v Client Server Professionals of Australia Pty Ltd (2000) 49 NSWLR 551; [2000] NSWIRComm 143 at 582 [55] (Wright J, President, Walton J, Vice-President, and Hungerford J); see also Federated Miscellaneous Workers Union of Australia, WA Branch v Nappy Happy Hire Pty Ltd t/as Nappy Happy Service (1994) 56 IR 62 at 63-64 (Franklyn J with whom Kennedy P agreed), 67-68 (Anderson J with whom Kennedy P and Franklyn J agreed). Thus, where a decision of the Full Bench was wrong, there was the capacity and opportunity for the Full Bench to overrule and correct its earlier decision. An example was the principles in Electricity Commission v Crump (1993) 48 IR 296 were overruled in Outboard World Pty Ltd v Muir (1993) 51 IR 167. The latter decision was overruled and the former decision was applied in Big W Discount Stores v Donato (1995) 58 IR 239 at 242 (Fisher P, Cullen J and Chief Commissioner Shiels) and later codified in s 191 of the Act. After the abolition of the Industrial Court, no such capacity or opportunity exists if the Full Bench had made a wrong decision. In my view, this Court should not be forever bound to follow an erroneous Full Bench decision merely because there is no longer a mechanism by which the decision could be overruled and corrected.

Secondly, although I am not bound to follow decisions of the Full Bench, I consider that FBEU v FRNSW [2012] is highly persuasive, especially because it was constituted by two eminent Judges and, in any case, was correctly decided.

Commissioner Ritchie’s decision was made in the context that the union had, on the previous day, placed “work bans” by instructing their members not to perform certain work relating to logistic support vehicles in the New South Wales Fire Brigade. On the day of the decision, the employer had sought an urgent hearing. The Commission made recommendations that included the immediate lifting of the bans. Later that day, the employer sought dispute orders because the bans had not been lifted. It is in this context that Commissioner Ritchie sought to conciliate the dispute and then proceeded to arbitration. After hearing evidence and submissions from the parties, made dispute orders.

In the context of that urgency, the succinct reasons given by Commissioner Ritchie were adequate in circumstances where the Commission was constrained to act urgently. Importantly, the brief reasons addressed the crux of the case put before the Commission, which concerned whether dispute orders should be made to lift the bans whilst the underlying dispute as to the union’s allegation that the employer breached an agreement was being considered. I agree with the Full Bench that the Commission, in these circumstances, may state their reasons succinctly and there was no obligation to give lengthy or elaborate reasons.

Counsel for the prosecutor submitted that it can be inferred from FBEU v FRNSW [2012] that the Commission is under no obligation to give any reasons at all on the basis that the Full Bench concluded that the powers or jurisdiction of the Commission did not miscarry.

I reject that submission. There is a distinction between the requirement to give reasons and the adequacy or minimum content of any reasons. It is clear from a proper reading of FBEU v FRNSW [2012] that the Full Bench was only engaged with the latter. The ground of appeal before the Full Bench was that the Commissioner had not given adequate reasons. The Full Bench was clearly passing upon the content of the reasons it stated that the Commissioner was “not obliged to give lengthy or elaborate reasons for his decision and orders” and that “[a]ny argument that the Commissioner had not given adequate and cogent reasons must fall away”: at [10]-[11] (Marks and Kavanagh JJ and Commissioner Stanton) (emphasis added).

This is fortified by the fact that the Full Bench had cited Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 (“Soulemezis”). In that case, the Court of Appeal considered the extent of the duty of a Judge of the Compensation Court of New South Wales to give reasons for their decision in a contested case. It was not contested in that case that judicial officers must usually give reasons for their decision or that Thompson J had given some reasons. Rather, the issue was whether Thompson J’s decision was adequate.

It was established in Soulemezis that the duty of a judicial officer to provide reasons for their decision can be sufficiently satisfied by the giving of grounds for their findings of fact. Although in dissent, Kirby P (as his Honour then was) stated at 260:

Mahoney JA stated at 271:

Therefore, nothing follows from FBEU v FRNSW [2012] that supports the prosecutor’s submission that the Commission was under no obligation to give reasons when making dispute orders.

If there is an obligation on the Commission to give reasons, the source of such obligation needs to be identified: New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 at 603-604 [110]-[114] (Ward JA, as her Honour then was). Indeed, her Honour stated that “[i]t should not be assumed that, in the absence of a request for the provision of reasons, there is an implied statutory obligation (let alone an obligation at common law)” on the part of a tribunal: at 604 [114].

Osmond remains good law in Australia. It was cited approvingly by French CJ, Crennan, Bell, Gageler and Keane JJ in Wingfoot at 497-498 [43] as authority for the proposition that “there is in Australia no free-standing common law duty to give reasons for making a statutory decision”.

Although Osmond was broadly stated, that case must be read in light of the statutory framework. There was no appeal from a decision of the Public Service Board and s 65A(6)(c) of the Public Service Act was a privative clause which purported to exclude judicial review even for jurisdictional error.

It should be made clear that Gibbs CJ in Osmond did not conclusively decide that the presence of “special circumstances” would be sufficient to require reasons to be given. His Honour was merely “assuming that in special circumstances natural justice may require reasons to be given”: at 670. Only Deane J in Osmond treated special circumstances as sufficient to establish a duty to give reasons. Nevertheless, the subsequent decisions of the Court of Appeal in Kennedy Miller TV and Vegan, of which I am respectfully bound to apply, have made clear that, where special circumstances can be demonstrated, there is a requirement to provide reasons.

To determine whether there are any “special circumstances”, the starting point is the text of the Act.

First, s 163(1)(c) of the Act provides that the Commission “is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms”. In Kostas v HIA Insurance Services Pty Ltd [2007] NSWSC 315, Rothman J traced the use of similarly worded provisions in Australia. They are often used to describe the tasks of tribunals that are required to alter the rights of parties. His Honour observed at [80]-[81]:

The requirement in s 163(1)(c) clearly means that, in exercising its statutory powers, the Commission is required to observe procedural fairness: General Pants (Trading) Co Pty Ltd v Shonny (unreported, Full Commission of New South Wales, IRC 3123 of 1993, 8 September 1994) at 12 (Fisher P, Schmidt J and Chief Commissioner Murphy); CGEA Transport Ltd t/a Southtrans v Transport Workers Union of Australia (2001) 110 IR 211; [2001] NSWIRComm 287 at 220 [33] (Wright J, President, Walton J, Vice-President, and Commissioner Neal) (“CGEA v TWU”). This was recently affirmed in Industrial Relations Secretary v PSA [2021] by Rothman J who, after referring to the terms of s 163(1)(c) of the Act, stated at 342 [107]:

In addition to being bound to follow rules of natural justice, the phrase in s 163(1)(c) of the Act has been held to require that the Commission, when exercising its statutory powers, to “act judicially”: Re Australian Railways Union; Ex parte Public Transport Corporation (1993) 51 IR 22; [1993] HCA 28 at 23-24 (Mason CJ, Deane, Dawson, Gaudron and McHugh JJ), which was cited approvingly in CGEA v TWU at 221 [34] (Wright J, President, Walton J, Vice-President, and Commissioner Neal). See also Re Australian Bank Employees Union; Ex parte Citicorp Australia Ltd (1989) 167 CLR 513 at 519 (Mason CJ, Deane, Dawson, Gaudron and McHugh JJ).

This is consistent with the observations of the Queensland Court of Appeal in Witthahn v Chief Executive of Hospital and Health Services (2021) 312 IR 314; [2021] QCA 282. Section 531(3) of the Industrial Relations Act 2016 (Qld) requires the Queensland Industrial Relations Commission to be “guided in its decisions by equity, good conscience and the substantial merits of the case”, which is nearly identical to the wording in s 163(1)(c) of the NSW Act. Drawing on this provision and other provisions in the Queensland Act, Sofronoff P (with whom Morrison JA agreed) stated:

Although it might be said that the Commission may act “non-judicially” when conducting conciliation, it is plainly clear that, when the Commission is engaged in “quelling a dispute” by arbitration, it is required to act judicially.

In Edwards v Justice Giudice (1999) 94 FCR 561, Marshall J (with whom Moore J agreed, Finkelstein J not finding it necessary to determine) made certain findings regarding the obligation on a non-judicial member of the Australian Industrial Relations Commission (“AIRC”) to give adequate reasons for any decision. At 572-573 [43]-[46], his Honour stated:

This passage was cited approvingly by the Full Bench in Webb v Goulburn at 318 [37]-[38] (Boland J, as his Honour then was, Staff J and Commissioner Bishop). Whilst there was a small difference between the discretion of a member of the AIRC under the s 170CG of the Workplace Relations Act 1996 (Cth) (repealed) (“WR Act”) and s 88 of the Act, the Full Bench stated at 318 [38] that:

In my view, this factor has strong parallels to the factors giving rise to a duty to give reasons found by Cole J in Xuereb and Santow J (as his Honour then was) in Anderson Stuart. Although it is true that the Commission is not a “court” for the purposes of Ch III of the Commonwealth Constitution, it nonetheless, when arbitrating an industrial dispute, is required to accord procedural fairness and act judicially. It is, at the very least, a quasi-judicial body.

Secondly, ss 187 and 188 of the Act create a right for a party to seek leave to appeal a decision of the Commission constituted by a single member. I respectfully agree with the many decisions of the Full Bench of the Commission that have recognised that a Commissioner must give reasons to make effective a statutory right of appeal.

In Entertainment Distributors, Hill and Peterson JJ and Chief Commissioner Connor stated at 452 that:

In Monier PGH (Holdings) Ltd v Horsey ( 1998) 86 IR 63, Hungerford and Marks JJ and Commissioner Murphy stated at 73:

That decision highlighted the “incurable difficulty” that made it “impossible for [the Full Bench] to review in a meaningful way” the decision of the Contract of Carriage Tribunal at 72 as follows:

It has long been recognised by the courts of this State that a duty to give proper reasons can be implied where there is a right to statutory appeal. This was stated in early cases in Carlson v King (1947) 64 WN (NSW) 65, where Jordan CJ said at 66:

This view is also shared by the courts of other States. In Sun Alliance Insurance Ltd v Massoud [1989] VR 8, Gray J writes “that the law has developed in a way which obliges a court from which an appeal lies to state adequate reasons for its decision”: at 18.

However, the oft-cited quote of McHugh JA (as his Honour then was) in Soulemezis at 278 must also be remembered, which is as follows:

Although these cases discuss the duty of a court to give reasons, Handley JA made clear in Vegan at 377 [24] that this reasoning applies where there is an appeal from an administrative decision maker to a panel or from an expert to a panel of experts.

The importance of reasons can be seen in East Melbourne Group Inc v Minister for Planning (2008) 23 VR 605; [2008] VSCA 217. Ashley and Redlich JJA observed at 661-662 [228] that:

Pettitt v Dunkley and Kennedy Miller TV point to a statutory right of appeal as a powerful consideration that supports an implied duty to give reasons. In my view, it is essential, in order for appeals to the Full Bench under ss 187 and 188 of the Act to be effective, that the Commission provide reasons for the making of dispute orders. I agree with the submission of the defendant that, without any reasons, it will be very difficult, and perhaps impossible, for an appellant to establish a House v The King error and the efficacious exercise of the appellate jurisdiction of the Full Bench will be hampered.

I note that Gibbs CJ observed in Osmond that the difficulties which arise when pursuing judicial review in the absence of reasons cannot, by themselves, provide a justification for implying an obligation to give reasons. This is notwithstanding the obvious difficulties with reviewing, for example, whether the decision-maker had considered the mandatory relevant considerations: see generally Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360 (Dixon J). However, as Basten JA explained in Vegan, there is a distinction between judicial review and statutory appeals.

Thirdly, the context of the Commission making dispute orders highlights the importance of giving reasons. On a practical level when dispute orders are made against a trade union or members of a union, reasons are important to inform the very large workforce receiving them, often when the employer and employees are in the midst of a very tense industrial disputes, that their union’s arguments have been considered and there has been a proper and true adjudicative process. This furthers the objects contained in s 3(a) of the Act to provide a framework for the conduct of industrial relations that is not only fair and just, but seen to be fair and just.

In my view, giving reasons in the industrial context is especially significant and important. This is evident in the fact that an employer who does not give reasons to an employee for their dismissal will prima facie be presumed to have acted unfairly, harshly and unjustly: Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273 at 276 (McKeon J); New South Wales Independent Teachers' Association v St Aloysius College [1976] AR (NSW) 91 at 96-97 (Beattie J, President, Cahill J, as his Honour then was, and Dey J); Re Ferguson; Public Service Association (NSW) v Public Service Board (NSW) (1988) 25 IR 148 at 154 (Bauer J); Twohill v Mental As Anything Touring Pty Ltd & Ors [2008] NSWIRComm 17 (Marks J). The giving of reasons is very important to maintain confidence and trust in the Commission, which would further participation in industrial relations by employees and employers at an enterprise or workplace level: s 3(c) of the Act.

Fourthly, it is clear that dispute orders can affect the rights of persons, which Hodgson JA suggests in Riverina Wines to be a significant factor. The broad range of orders that can be made under s 137(1) include ordering a person to cease or refrain from taking industrial action; ordering an employer to reinstate or re-employ any employees who were dismissed in the course of the industrial dispute; order an employer not to dismiss employees in the course of the industrial dispute; and order a person to cease a secondary boycott imposed in connection with the industrial dispute. The consequences of breaching a dispute order can include monetary penalties, cancelling an enterprise agreement, suspending entitlements under an industrial instrument and cancelling the registration of an industrial organisation: s 139(3) of the Act. It is clear that dispute orders can have sweeping and significant consequences.

In my view, the proper reading of the Act evinces “special circumstances” that create an implied statutory duty to give reasons when the Commission makes dispute orders when arbitrating an industrial dispute. Applying the authorities of the Court of Appeal and this Court, Osmond can be distinguished in this case.

This view is consistent with the decision of Marshall, North and Flick JJ in Soliman v University of Technology Sydney (2012) 207 FCR 277; [2012] FCAFC 146 (“Soliman”) where their Honours found that there was a requirement for Fair Work Australia to provide reasons and findings in respect of its decision. The Full Court held at 292 [46] that that requirement is to be implied by reason of:

I consider the present case to be distinguishable from those in Inghams v Iogha. Unlike the Registrar in that case (see [21]-[22]), the Commission’s decision to impose dispute orders can impose legal obligations on the parties and thereby alter their legal rights and duties, and there is an appeal from the Commission’s decision.

In arguing against the existence of any duty to provide reasons for the making of dispute orders, the prosecutor relied on s 162(2)(a) of the Act, which provides that the Commission is to “act as quickly as is practicable”. In my view, an obligation to give reasons does not detract from this provision. As I will explain below, the obligation on the Commission is not burdensome. Succinct and brief reasons, in circumstances of urgency, will be adequate. Furthermore, s 162(2)(a) of the Act should not be read in isolation. It must be read with the broader statutory mandates contained within the Act that require the Commission to act judicially, accord procedural fairness and resolve it in a manner that is fair and just: Sydney Water v ASU at 403-404 [37] (Wright J, President, Walton J, Vice-President and Commissioner Stanton). When s 162(2)(a) of the Act is read in the context of the Act as a whole, the provision does not prevent an obligation to give reasons.

The prosecutor relied on provisions of the Act that expressly mandate decisions to be recorded, including in writing, to suggest that the Parliament did not intend that any reasons were to be recorded or given. This must also be rejected. I use the example cited in the prosecutor’s written submissions in reply, that is, s 13(1) of the Act. Section 13(1) of the Act requires that an award is “to be in writing, expressed to be an award and signed by at least one member of the Commission”. This title of this section is “Formal matters relating to making of award”. A similar provision also appears in s 38(1) of the Act in relation to enterprise agreements. These provisions have nothing to say whatsoever on whether the Commission has a duty to give reasons.

It is plainly unreasonable and contrary to common sense to infer from a statute’s requirement that an industrial instrument be in writing that the Parliament intended that the Commission has no obligation to give reasons. In any case, the obligation to give reasons does not mean it must be reduced to writing. Reasons can be given orally, as was the case in FBEU v FRNSW [2012].

It is also for this reason that I do not accept the prosecutor’s suggestion that some actions of the Commission specified under s 136(1) of the Act require reasons whilst others do not.

It must be remembered that dispute orders can be, and occasionally are, made in circumstances where dismissal is “clearly threatened and indeed imminent” but has not eventuated: Hill v Director-General, Department of Education & Training (NSW) (1998) 85 IR 201 at 205 (Schmidt J). This occurs when dismissal is “certain, imminent and unconditional”: Baker v Australian Workers Union [2006] NSWIRComm 1225 at [3] (Commissioner Connor). It is not when dismissal is merely one possible option amongst others (Decottignies v NSW Department of Education and Training [2010] NSWIRComm 1014 at [34]-[35] (Commissioner Bishop); Barnier v Secretary, Department of Education [2021] NSWIRComm 1045 at [37] (Commissioner Webster)) or when an investigation process is still underway and has not yet been concluded (Xian v Rail Corporation New South Wales [2009] NSWIRComm 1083 at [77]-[78] (Commissioner Bishop)). (For the principles generally, see Public Service Association and Professional Officers Association Amalgamated Union of New South Wales on behalf of Pearcey, Barnett and Woelfl v Department of Attorney General and Justice - Corrective Services NSW [2012] NSWIRComm 33 (Boland J, President).)

It was accepted by all parties that there is an obligation to give reasons when the Commission is dealing with an unfair dismissal application. This much is plainly clear in light of the authorities cited above. This would include when orders are made under either s 89(7) or ss 136(1)(c) and 137(1)(c) of the Act. There are many examples of dispute orders being made where dismissal was threatened or imminent: see, eg, Australian Liquor, Hospitality and Miscellaneous Workers Union, New South Wales Branch v Murawina Mt Druitt Co-op Ltd [2005] NSWIRComm 1017 (Commissioner Bishop); Sydney Water v ASU (Wright J, President, Walton J, Vice-President, Commissioner Stanton); and, more recently, Police Association of New South Wales v Commissioner of Police [2019] NSWIRComm 1076 (Commissioner Sloan).

I see no basis in the statutory text or any good reason why dispute orders relating to threatened industrial action do not attract a requirement of reasons when dispute orders relating to threatened dismissal does, in circumstances where the making of both kinds of dispute orders generally involve a significant degree of urgency. Furthermore, although it is unnecessary to decide so broadly, I prefer the view that the Commission is under an obligation to give reasons when making, varying or rescinding an award or a dispute order under ss 10, 17(1), 136(1) and 138(2)(c) of the Act.

I also reject the prosecutor’s submission relating to s 177(2) of the Act. That section provides as follows:

The prosecutor appears to equate the term “decision” in s 177 with the reasons given for a decision. That is inconsistent with the ordinary understanding of those two distinct matters in legal or arbitral proceedings. In Solution 6 Holdings Ltd v Industrial Relations Commission (NSW) (2004) 60 NSWLR 558; [2004] NSWCA 200, Spigelman CJ at 587-588 [120] catalogued every reference to a “decision” of the Commission in Ch 4 of the Act. His Honour then held at 588 [121] that:

In my view, the reference to a “decision” in Ch 4 of the Act refers to a recommendation, direction, determination or order of the Commission. This is consistent with Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 (“ABT v Bond”), where Mason CJ (with whom Brennan J, as his Honour then was, and Deane J agreed) at 335:

ABT v Bond was concerned with the construction of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and the Court held in that case that the word “decision” meant “an ultimate or operative determination”: at 338 (Mason CJ, with whom Brennan J, as his Honour then was, and Deane J agreed), 375–376 (Toohey and Gaudron JJ).

Section 177(2) of the Act gives flexibility to the Commission to deliver a reserved decision either at a subsequent sitting or in another place and time. The latter option presumes that the Commission is not formally sitting. Practically, the latter option allows decisions of the Commission to be collected by the parties from its Registry or, in some cases, at or near a worksite where an industrial dispute is occurring. The requirement that the decision be made in writing and signed by the Commissioner thus ensures the authenticity of the decision made by the Commission. In my view, it cannot be said that s 177(2) of the Act controls whether the Commission has a duty to give reasons.

I wish to add some remarks about the content of the implied statutory obligation to give reasons. I understand the real world that Commissioners operate. It is very different to the environment of this Court. I am acutely aware that Commissioners are called upon to deal with very difficult and urgent industrial disputes on short notice. It is not uncommon for the filing of a notification, conciliation, arbitration and the making of dispute orders to all happen within one day. Sometimes all those steps will happen within a few hours. Parliament was aware of this context. The Parliament gave broad powers to the Commission to determine its own procedure and practice, including the power to require that the presentation of each party’s case be limited in time to what is reasonably necessary and the power to decide on the matters on which it will hear oral evidence or argument: ss 162(2)(c)-(d) of the Act. The Full Bench, when determining whether to grant leave or in hearing an appeal, and this Court, on judicial review, must be mindful of this context when determining the adequacy of reasons.

I emphasise that due allowance must be made when the Commission is constrained by the need to act urgently. In those circumstances, succinct reasons expressed in a highly compressed form are appropriate provided that they “enlighten the reader as to the reasoning process”: Sasterawan v Morris [2008] NSWCA 70 at [48] (Tobias JA with whom Beazley JA, as Her Excellency then was, and McClellan CJ at CL agreed).

It must be remembered that it would be inappropriate to place an undue burden upon a busy Commissioner by requiring extensive reasons as to every matter in issue: see, eg, Soulemezis at 279-281 (McHugh JA, as his Honour then was). But where a matter lies at the heart of the issues between the parties and is a significant feature of the Commission's determination of the question, it is nevertheless necessary for the Commission to give at least brief reasons for the conclusion reached.

The obligation to give reasons is not onerous as seen in Commissioner Ritchie’s reasons in FBEU v FRNSW [2012]. Brief ex tempore reasons can be given in circumstances where there is concurrent industrial action causing financial and economic loss as seen in Schmidt J’s reasons that are extracted in NUW v TNT.

I agree with the observation of Schmidt J, Deputy President Sams and Commissioner McLeay in Britton and Riverstone Public School [1999] NSWIRComm 181 that:

This is consistent with the Court of Appeal’s decision in Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (No 2) [2018] NSWCA 124. McColl JA stated at [152] as follows:

Similarly, Emmett AJA made the following observations at [227]:

It was accepted by the parties that the Commissioner did not give reasons orally or in writing.

Counsel for the prosecutor conceded that the dialogue between the Commissioner and the representative for the Association did not constitute the giving of reasons. This concession was properly made in my view. It accords with authority that comments in transcript are no substitute for reasons in a decision: Allplastics Engineering Pty Ltd v Dornoch Ltd [2006] NSWCA 33 at [41] (Tobias JA with whom Santow JA agreed); Lord v Flight Centre Ltd [2006] NSWIRComm 188 at [10] (Schmidt J). Exchanges between counsel and Bench made in argument do not form part of reasons: Ahmad v R [2022] NSWCCA 144 at [20] (Mitchelmore JA with whom Meagher JA and Bellew J agreed).

However, I disagree with the submissions of counsel for the prosecutor that “the Commissioner’s failure to give reasons is unsurprising, given the urgency with which the matters were brought to the Commission, in particular with regard to the February Orders”. As I noted above, the obligation to give reasons is not a burdensome one and there was ample time for the Commission to make brief reasons for both the First and Second Disputes.

I note that in both FBEU v FRNSW [2012] and NUW v TNT the Commission gave reasons when industrial action had already begun and was occurring concurrently with the arbitration proceedings in the Commission.

With respect to the February Orders, which was most pressed for time, the Commission made the orders at or around 4:00pm on 14 February 2022. The prosecutor drew my attention to the evidence, which showed that the earliest strike action would begin at the Western Sydney LHD on the morning shift for nurses and midwives, which is at 7:00am on 15 February 2022.

I take on judicial notice that the Commission closes at 5:00pm on weekdays and has an after hours emergency contact service that can be utilised when strike action has been initiated and the urgent intervention of the Commission is required: see Industrial Relations Commission, “Contact Us” (accessed 4 August 2022). Whilst I accept that there was great urgency on the day that the February Orders were made, there was ample time for the Commission to give succinct reasons like those in FBEU v FRNSW [2012] and NUW v TNT.

With respect to the March Orders, the orders were made on 25 March 2022 for proposed strike action on 31 March 2022. I consider that there was more than ample time to give reasons as well.

The prosecutor submitted that the defendant could have asked for reasons but “chose not to”. To the extent that that is itself a reason to not find error, I reject that submission. First, although the evidence shows that the defendant did not ask for reasons at the hearing, I see nothing to suggest that the defendant made an active choice to waive the requirement to give reasons. Secondly, I reject the premise that the obligation to give reasons is enlivened only when there is a request from the losing party. The giving of reasons or, alternatively, reserving reasons to be delivered at a later date is an incident of the arbitral process that leads to the making of dispute orders. Even where the parties have a statutory right to request written reasons but do not do so, the basis for generally requiring reasons “may be of less significance but it continues to apply”: Collins v Urban [2014] NSWCATAP 17 at [53] (Wright J, President, Deputy President Westgarth and Principal Member Harrowell) (referring to s 62(2) of the Civil and Administrative Tribunal Act 2013 (NSW)).

Where there is an obligation to give reasons and the decision-maker does not give any reasons or gives inadequate reasons, that is an error of law on the face of the record (which includes any reasons given: Supreme Court Act s 69(4)). Certiorari will ordinarily be available, subject to any privative clause, to remove the legal consequences of an opinion for which non-compliant reasons have been given: Wingfoot at 493 [28] (French CJ, Crennan, Bell, Gageler and Keane JJ).

The question that then follows is whether the Commission’s failure to give reasons constitutes jurisdictional error. The issue of when an error is “jurisdictional” was recently considered in Stanley v Director of Public Prosecutions (NSW) [2021] NSWCA 337. Bell P (as the Chief Justice then was, with whom Basten, Leeming and Beech-Jones JJA agreed) stated at [35]-[36]:

In Quinn v Commonwealth Director of Public Prosecutions (2021) 106 NSWLR 154; [2021] NSWCA 294, Leeming JA (with whom Simpson AJA and Johnson J agreed) stated at 158-159 [5]-[6]:

In PSA v Treasury Secretary [2014], Basten JA (with whom Ward JA, as her Honour then was, and Bergin CJ at Eq) held at 331 [48] that:

In Soliman, which I have explained above is analogous to this case, Marshall, North and Flick JJ held at [50]-[51] that:

In Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212; [2003] HCA 56 (“Palme”), the Minister exercised a power under the Migration Act 1958 (Cth) (“Migration Act”) to cancel a visa on the basis that the Minister reasonably suspected that the visa holder did not pass a test known as the “character test”. Section 501G of the Migration Act required the Minister to give the person affected by the decision written notice of the decision and of the reasons for the decision. The same section provided that a failure to comply with the requirement to give notice and reasons for the decision did not affect the validity of the decision.

The majority concluded that although the Minister had failed to provide adequate reasons, that failure did not constitute jurisdictional error so as to invalidate his decision to cancel the visa. Gleeson CJ, Gummow and Heydon JJ expressed their reasoning at 225 [44]-[46] in the following terms:

At [55], McHugh J expressed his reasoning in the following terms:

In Seiffert v Prisoners Review Board [2011] WASCA 148 (“Seiffert”), the Western Australian Court of Appeal applied the principles in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 (“Project Blue Sky”) to determine whether the Prisoners Review Board had failed to exercise its jurisdiction in failing to give reasons for a decision to cancel a parole order. This was illuminated at [178] when Martin CJ (with whom McLure P and Murphy JA agreed) stated that:

After reviewing the authorities, Basten JA stated in PSA v Treasury Secretary [2014], which as noted above concerned the obligation of the Full Bench of the Commission to give reasons, at 333 [57]-[58] that:

It is necessary to explore further the decision of Li v A-G given the reliance on this decision by the defendant.

Mr Li had been sentenced to 19 years and 6 months imprisonment after pleading guilty to supplying a large commercial quantity of a prohibited drug. He made an application for an inquiry into his sentence under Pt 7 of the Crimes (Appeal and Review) Act 2001 (NSW). It is noted that ss 78 or 79 of that Act does not expressly require the decision-maker to give reasons. A Judge of this Court dismissed the application.

Mr Li sought judicial review of the decision on the basis that the Judge had not given his own opinion and had copied from the Attorney General’s submissions opposing his application.

The majority in the Court of Appeal, Basten and White JJA, held that the reasons provided no basis to find that the decision-maker had failed to form the relevant opinion and that the reasons sufficiently demonstrated that the decision-maker did not fail to consider relevant materials: at 637 [23], 640 [37] (Basten JA with whom White JA agreed at 647 [69]). Their Honours also held that the reasons were not inadequate in their terms: at 644 [54] (Basten JA with whom White JA agreed at 647 [69]). The majority dismissed the application for judicial review.

Brereton JA dissented and held that reasons must demonstrate that the decision-maker engaged with and gave independent consideration to the submissions presented. His Honour considered that this may not be satisfied if one party’s submissions are extensively replicated into a judge’s reasons: at 664 [131]-[132]. His Honour found that the decision-maker had mirrored the Attorney General’s submissions and stated at 666 [141] and 667 [144]:

Brereton JA then turned to consider whether there was a constructive failure to exercise jurisdiction. At 669 [152]-[153], his Honour stated:

Brereton JA stated his conclusions at 671 [161] as follows:

Before I turn to consider this decision, I note that there is ample authority that the reasons of a dissenting judge does not contribute to the ratio decidendi: Federation Insurance Ltd v Wasson (1987) 163 CLR 303 at 314 (Mason CJ, Wilson, Dawson and Toohey JJ) (“Wasson”); Garcia v National Australia Bank Ltd (1998) 194 CLR 395; [1998] HCA 48 at [56] (Kirby J); Brodie v Singleton Shire Council (2001) 206 CLR 512; [2001] HCA 29 at [112] (Gaudron, McHugh and Gummow JJ).

In Holmes a Court v Papaconstuntinos [2011] Aust Torts Reports 82-081; [2011] NSWCA 59, Allsop P (as his Honour then was, with whom Beazley and Tobias JJA, as Her Excellency then was, agreed) stated at [3]:

Nevertheless, I accept that a judgment of dissenting judge in the Court of Appeal can be persuasive and should be accorded great weight in circumstances where the other judges did not opine or contradict them on the issue.

In Li v A-G, Brereton JA found that a failure to give adequate reasons may be a constructive failure to exercise jurisdiction or denial of natural justice and thus amount to jurisdictional error. His Honour’s conclusion that a failure to give adequate reasons amounted to jurisdictional error was not opined on by the majority judges.

I do not read Brereton JA’s reasons as suggesting that there is a universal rule that a failure to give reasons would amount to jurisdictional error, assuming, of course, that there was a duty in the first place to provide reasons. Indeed, I consider his Honour’s observations at 670-671 [159] distinguishing Palme to highlight that his Honour regarded the statutory scheme and unique circumstances of each case to be significant.

I have carefully reviewed and considered Brereton JA’s analysis. It is clear that Brereton JA had considered broader issues stemming from what his Honour described as the “deficient” reasons of the decision-maker (at 667 [143]), including whether they demonstrate that the decision-maker had given serious consideration to Mr Li’s submissions and contentions, and brought to bear an independent and impartial judgment. It was only when these broader issues, which went beyond the mere failure to provide adequate reasons, were considered that Brereton JA concluded that the decision fell into jurisdictional error and was void.

In this respect, Brereton JA’s analysis can be distinguished from how the parties argued the present case at the hearing. To the extent that the failure to give reasons also demonstrated that the Commissioner did not consider the substantial submissions and contentions of the defendant, that was argued as a separate alleged error.

In any case, to the extent that Brereton JA espouses a new test or standard in the sense that “[w]here reasons for decision leave the appearance that justice has not been done, there is a constructive failure to exercise jurisdiction”, I do not consider that to be authoritative and binding. This is because it is at odds with the decision of the Judges of Appeal in the majority. Basten JA stated that, whilst the phrase “justice is not seen to have been done” was intended to be a test of the adequacy of reasons, this is not a free-standing ground of review or a test of the validity of judicial, let alone administrative, decision-making: at 644 [56]-[57].

Likewise, White JA stated at 648 [77] that:

The dissent by Brereton JA has not been followed in subsequent decisions of the Court of Appeal: see, eg, Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479; [2020] NSWCA 165 at [34] (Basten JA).

Although Li v A-G was directed to the content and adequacy of reasons, that decision is applicable to this judgment insofar that it relates to whether the failure to give reasons (by giving none or inadequate reasons) amounts to a constructive failure to exercise jurisdiction and jurisdictional error.

The written submissions filed by counsel for the defendant quoted several whole paragraphs from the decision of Brereton JA at great length to support his argument. At no point did counsel for the defendant allude, in either his written or oral submissions, to the fact that Brereton JA was in dissent. Nor did counsel for the defendant draw this Court’s attention to the views of the Judges of Appeal in the majority.

I am bound to follow the decisions of the majority when members of the Court of Appeal are divided: Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166 at 177 (Moffitt P); Wasson at 314 (Mason CJ, Wilson, Dawson and Toohey JJ). It follows that the mere failure to give adequate reasons, which may be tested by considering whether justice has been seen to be done, does not, in all cases, result in a constructive failure to exercise jurisdiction or jurisdictional error.

Applying the principles in the above authorities, I am of the view that the mere failure to give reasons was an error of law but did not infect the February or March Orders with jurisdictional error.

The analysis of Basten JA (with whom Ward JA, as her Honour then was, and Bergin CJ in Eq) in PSA v Treasury Secretary [2014] at 331-333 [48]-[58] is most directly analogous to the present case. There, the Court of Appeal was reviewing a decision of the Full Bench of the Commission made under the Act. Although the Full Bench was constituted by three judicial members, the Full Bench was exercising non-judicial power in the context of hearing an appeal concerning an unfair dismissal application. Although the legislation has undergone some amendments since 2014, the crux of what the Court of Appeal relied upon at 333 [57], which was the silence in the Act on any duty to give reasons and as to the consequence of a failure to give reasons, has not changed. It follows from what was said at 333 [57]-[58] that the Parliament implicitly assumed or accepted that invalidity would not follow from the failure to give adequate reasons.

In my view, this conclusion is supported by the legislative provisions in the Act. The Act provides that the industrial disputes are to be resolved in a “prompt” manner (s 3(a)); the Commission is “not bound to act in a formal manner” and is to act “without regard to technicalities or legal forms” (s 163); the Commission is to “act as quickly as is practicable” (s 162(2)(a)); and that the Commission may require that the parties’ presentation of their cases to be limited (s 162(2)(c)). These provisions all emphasise the informality and urgency that the Commission may act and distinguish it from the rigidity and formality that usually comes with judicial proceedings in a court, where the failure to give reasons takes on a more heightened significance.

When the Commission failed to give reasons, this is often because it is acting quickly, promptly and informally. A construction of the Act which would make the provision of reasons a condition of the valid exercise of the power to make dispute orders would produce the consequence that, on judicial review, this Court would invalidate those dispute orders. This is in circumstances where the Commission was satisfied that the making of dispute orders was appropriate or necessary in the resolution of the industrial dispute. Such a consequence is inconsistent with Parliament's express object to “provide for the resolution of industrial disputes by conciliation and, if necessary, by arbitration in a prompt and fair manner and with a minimum of legal technicality”: s 3(g) of the Act; see generally Newcrest at 79 [6(b)] (Walton J, Vice-President).

The provisions of the Act that deal with industrial disputes specifically make this clear. When the Commission fails to give reasons for making dispute orders, especially of the kind in this case to order a person to cease or refrain from taking industrial action under s 137(1)(a) of the Act, it is likely because industrial action is ongoing, threatened or likely. The provisions in ss 135(4), 135(7) and 137(2) of the Act particularly point to Parliament’s desire that the Commission act with great expedition when industrial action is ongoing, threatened or likely. To lightly invalidate dispute orders directed at the cessation of industrial action is inconsistent with the powerful public interest evidenced in the Act that those orders should be considered in a timely and orderly way and should not be frustrated: see NUW v TNT (Fisher P, Bauer and Hungerford JJ and Commissioner Buckley).

Thus, the proper construction of construing the Act as a whole in accordance with the principles enunciated by the High Court in Project Blue Sky, and consistent with Martin CJ’s analysis in Seiffert, leads to the conclusion that the provision of reasons is not a precondition to the valid exercise of the Commission's power to make dispute orders.

I emphasise that my decision in the preceding paragraph is narrowly limited to when the Commission makes dispute orders in arbitration. It does not lay down a general rule that a failure to give reasons by the Commission in all cases, whether that be awards, unfair dismissal, wage cases and the like, would all be within jurisdiction.

In conclusion, the Commissioner’s failure to provide reasons when making both the February and March Orders was an error made within jurisdiction. Under s 179 of the Act, a decision of the Commission with an error of this kind remains “final” and this Court cannot invalidate the dispute orders on this ground.

Although judicial review to quash dispute orders on the sole ground that the Commission has not given reasons may not be available, I note that an aggrieved party may be able to appeal to the Full Bench. In Stegbar Pty Ltd v Transport Workers' Union of New South Wales (2008) 173 IR 350; [2008] NSWIRComm 104 (“Stegbar v TWU”), the Full Bench held that the “inadequacy of reasons may…be enough in itself to establish [leave to] appeal”: at 359 [45] (Walton J, Vice-President, Marks J and Commissioner Connor). The Full Bench granted leave to appeal because “the inadequacy of reasons…opened, in our view, at least, the prospect for real issues in relation to the compensation question”. This was so notwithstanding that there was no apparent error in the ultimate conclusions reached by the Contract of Carriage Tribunal nor any matter of general principle which would apply to proceedings before the Tribunal nor would it affect persons or parties other than the parties to these proceedings in a general way and the Full Bench would have ordinarily refused leave to appeal: at 359 [44].

The Full Bench has placed emphasis on the failure to give reasons as a basis for granting leave, as seen in Public Service Association and Professional Officers' Association Amalgamated Union (NSW) (on behalf of Rosanna Ganino) v Roads and Maritime Services [2013] NSWIRComm 106 (Walton J, Vice-President, Staff and Backman JJ), Byrne v Rail Corporation of NSW [2012] NSWIRComm 117 (Walton J, Vice-President, Staff and Backman JJ) and Buchtmann (Walton J, Vice-President, Deputy Presidents Sams and Grayson).

I see no reason to believe that Stegbar v TWU at 359 [43]-[44] would not be followed by the Commission as presently constituted given the authorities on this question. However, it must be noted that the mere raising of this ground will not be sufficient. Leave would not be granted if the ground is unlikely to be made good on the evidence: Qureshi v De Haas (No 2) [2009] NSWIRComm 139 at [23] (Boland J, President, Walton J, Vice-President, and Marks J); Margaritte Joanne Colefax v Secretary, Department of Education (No 3) [2019] NSWIRComm 1000 (Chief Commissioner Kite SC, Commissioners Stanton and Sloan).

In light of the above discussion about appeals to the Full Bench, I add a further remark about this consideration. Recently, it was observed by Commissioner Sloan in Transport Secretary v AWU at [24] that:

I am not aware of this alleged “increased propensity” by “the Crown”. I reach no judgment in that respect. Nor is it clear whether this is a reference to conduct by the Crown Law Officers, State agencies or both. However, if such a practice were to be adopted, then it raises the prospect of inconsistency with the obligation of the State to act as a model litigant: see generally Melbourne Steamship Company Ltd v Moorehead (1912) 15 CLR 333 at 342 (Griffith CJ). In this respect, I respectfully agree with Basten JA (with whom Giles and Bell JJA, as her Honour then was, agreed) in Mahenthirarasa v State Rail Authority (NSW) (No 2) (2008) 72 NSWLR 273; [2008] NSWCA 201 at 279 [22] that:

Furthermore, the discretion under ss 136 and 137 of the Act to refuse to make dispute orders may be exercised if the party seeking those orders caused a significant, unnecessary and deliberate delay in notifying the dispute and has the effect of frustrating another party’s statutory right of appeal by leaving as little time as possible. This is because it would be inconsistent with the objects in s 3 of the Act to allow a party to use the Commission’s processes and powers in such a way that the Commission would not be providing a framework of industrial relations that is fair and just.

The second ground relied upon by the defendant was that the Commission failed to respond to a substantial and clearly articulated argument. Such a failure, if made out, may amount to a failure to accord procedural fairness or a constructive failure to exercise jurisdiction.

In Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22, Gaudron J, after noting that it was not always easy to distinguish an error of law which is jurisdictional from one that is not, said at [81]:

The oft-cited case in relation to an alleged failure to respond to a substantial and clearly articulated argument is Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 321; [2003] HCA 26 (“Dranichnikov”). In that case, the appellant, Mr Danichnikov, was a Russian national who applied for a protection visa. His claim for refugee status was on the basis of a fear of persecution in Russia as the result of membership of a particular social group, namely entrepreneurs and businessmen in Russia who publicly criticised law enforcement authorities for failing to take action against crime or criminals. The Refugee Review Tribunal accepted that Mr Dranichnikov had a subjective fear of physical harm, but rejected the applicant's claim for a protection visa on the basis that there was no indication that any persecution he suffered was for reason of membership of the particular social group “businessmen in Russia”.

Gummow and Callinan JJ (with whom Hayne J agreed) held that the Tribunal was required to, first, resolve a question of law about whether the group or class to which Mr Dranichnikov claimed to belong was capable of constituting a social group for the purposes of art 1A of the Convention relating to the Status of Refugees (opened for signature 28 July 1951, 189 UNTS 150, entered into force 22 April 1954) and then, if the first question was answered affirmatively, a question of fact as to whether the applicant is a member of that class: at 326 [26].

Their Honours held that the Tribunal failed to decide the first question and instead decided another question: at 326 [27]. It was also concluded that had the question the Tribunal had to resolve been addressed, “it would in all likelihood have permitted of one only answer, an affirmative one” for the case Mr Dranichnikov advanced, it having accepted him “as a witness of credit, and therefore the correctness of his account of his activities, and their climax, the violent assault which he suffered”: at 326-327 [28].

Gummow and Callinan JJ held that “[t]o fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice”: at 326 [24]. Hayne J agreed that “the Refugee Review Tribunal failed to exercise its jurisdiction, and did not give the applicant natural justice in conducting its review, because it did not consider the claim which the applicant was then making, and had earlier made, for protection”: at 340 [95].

Kirby J substantially agreed with the plurality. His Honour explained at 339 [88]:

In Allianz Australia Insurance Ltd v Cervantes (2012) 61 MVR 443; [2012] NSWCA 244, Basten JA extrapolated two propositions from Miah and Dranichnikov at 449 [21]-[22] as follows:

In Ali v AAI Limited (2016) 75 MVR 502; [2016] NSWCA 110 (“Ali v AAI”), Basten JA (with whom Leeming and Simpson JJA agreed) stated at 517 [66]:

The language in Miah and Ali v AAI is that the decision-maker must “consider” whilst the language in Dranichnikov is “respond”. In my view, there is no relevant difference between these two terms when they are understood in context.

In understanding what it means to “consider” an argument or material, this Court can derive assistance from the decision of the Full Court of the Federal Court in Tickner v Chapman (1995) 57 FCR 451. In that case there was an explicit statutory duty on the Minister under s 10(1)(c) of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) to “consider” a report and any representations attached to it in determining whether or not to make a declaration which would have the effect of protecting a site which the Minister was satisfied had special significance for Aboriginals. The observations of Kiefel J (as her Honour then was) at 495 are particularly apposite:

In Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628; [2018] FCAFC 225, the Full Court of the Federal Court considered the obligation on the Minister to engage in an active intellectual process with significant and clearly expressed relevant representations made in support of a request to revoke the cancellation of a person’s visa. Allsop CJ (with whom Markovic and Steward JJ agreed) held at 630 [3]:

Guidance can also be drawn from the judgment of Henry LJ in Flannery v Halifax Estate Agencies Limited [2000] 1 WLR 377; [1999] EWCA Civ 811, which was cited approvingly by Sheller JA in Moylan v Nutrasweet [2000] NSWCA 337 at [63]. Henry LJ stated at 382:

Consideration must also be given to whether an argument is “substantial” and “clearly articulated”. In Insurance Australia Ltd (t/as NRMA Insurance) v Milton (2016) 77 MVR 78; [2016] NSWCA 156, Basten JA stated at 82 [9] that “a “substantial” argument means one which is clearly material or of undoubted relevance”.

In DNA17 v Minister for Immigration and Border Protection [2019] FCAFC 146 (“DNA17”), Kerr, Davies and O'Bryan JJ at [53] cited approvingly the observations by Mortimer J in CPE15 v Minister for Immigration and Border Protection [2017] FCA 591 at [40], which is as follows:

It is clear from the authorities that the obligation to respond to a substantial and clearly articulated argument is connected with the obligation to give proper, genuine and realistic consideration to a party’s case. This latter obligation operates within the Commission’s quasi-judicial nature and the adversarial nature of arbitral proceedings. In light of the significant consequences that can stem from the making of dispute orders, I am of the view that there needs to be an active intellectual engagement with the significant arguments actually raised on behalf of the party to whom the dispute orders are directed against and the acceptance of which could constitute a good reason to not make the dispute orders.

What is critical is that the argument was “clearly articulated” in the sense that the decision-maker can be said to have been put on notice of the argument, and “substantial” in the sense that it was capable of altering or clearly material to the decision.

It must be remembered that this ground requires, not just a mere alluding to or passing reference to the argument by the Commission, but consideration or a response. The response must consider and engage with the argument put forward by the party. In my view, a mere dialogue or exchange between counsel and the bench generally would not generally amount to a response as required by the authorities that I have considered above.

It must be remembered that a dialogue or exchange does not constitute the giving of reasons. Judges and Commissioners ask questions from the Bench during oral argument to seek clarification of the precise argument being made by counsel or to test those arguments. This may involve putting a contrary argument so that a judge or Commissioner can elicit a response from counsel. This can sometimes lead to speculation that the Bench is leaning one way. But this kind of speculation is often misguided, dangerous to act upon and should be resisted because it is possible that the Bench may feel persuaded by a party’s response or from other parts of the case to ultimately find the other way. Questions or issues from the Bench should not ordinarily be regarded as giving any considered view on a specific point in contention, nor amount to a “response” to a substantial or clearly articulated argument put by a party.

Nevertheless, I do not completely exclude the possibility that exchanges between a member of the Commission and parties in argument can satisfy this requirement. In my view, there is a spectrum that is informed by the specific circumstances (including what was said and exchanged between the parties) and the level of formality in the proceedings.

It is likely that, when the Commission is conciliating an industrial dispute or when making recommendations in conciliation or arbitral proceedings, there can be a conceptual basis to conclude the parties will be sufficiently informed on many occasions by the exchanges between the Commission and parties. This, of course, is subject to the unique circumstances of the case.

On the other hand, in seriously contested arbitral proceedings that have the prospect of making or varying an award that would affect a large cross-section of the workforce, it is difficult to conceive how exchanges between the Commission and parties would suffice unless there is a high degree of informality in the proceeding. See, eg, Electrical Trades Union of Australia v. BlueScope Steel (AIS) Pty Limited [2005] NSWIRComm 1065 at [4] (Commissioner Connor).

I am acutely aware that the Act seeks to minimise formality, technicality and excludes the application of the rules of evidence. However, this does not deny that proceedings for an award or dispute order require greater formality commensurate with the nature, subject and consequences of the proceedings. This is particularly because, as I have explained above, the Commission must act judicially. This is consistent with the long-standing practice of the Commission, which has always effected court-like procedures in dealing with awards and dispute orders.

A good example of how this spectrum operates in the context of the Commission is its treatment of the rules of evidence. Although the Commission is not bound by the rules of evidence (s 163(1)(b) of the Act), the Commission has always been careful to bear in mind that “those rules are founded in experience, logic, and above all, common sense” and that “[n]ot to be bound by the rules of evidence does not mean that the acceptance of evidence is thereby unrestrained”: PDS Rural Products v Corthorn (1987) 19 IR 153 at 155 (Fisher P, Bauer and Glynn JJ) (“PDS Rural Products”); see also Amalgamated Metal Workers Union v Electricity Commission (NSW) (1989) 28 IR 155 at 161 (Fisher P, Varnum DP, Hill J and Chief Commissioner Harrison). In PDS Rural Products, the Full Commission stated:

In Van Huisstede v Commissioner of Police (2000) 98 IR 57; [2000] NSWIRComm 97, I explained at 96 [160] that:

For example, in Davis v Amalgamated Television Services Pty Ltd (1998) 81 IR 364, Cahill J (Vice-President), Hill and Maidment JJ, and Commissioner Redman held at 375 that, when dealing with allegations of victimisation, the Commission should adopt formal procedures and the rules of evidence having regard to the nature of those applications.

Similarly, the fact that the Commission is not obliged to act in a formal manner does not prevent the Commission imposing onuses and burdens of proof on certain parties: Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales v Industrial Relations Secretary of New South Wales (2021) 306 IR 89; [2021] NSWCA 64 at 105 [57] (Bathurst CJ, Bell P, as the Chief Justice then was, and Leeming JA). The onus borne by a party in the context of award-making was described by Kite AJ in Transport Industry – General Carriers Contract Determination (2016) 257 IR 294; [2016] NSWIRComm 3 at 303 [34]-[35] in these terms:

For example, it is well-established that existing awards of the Commission are presumed to set fair and reasonable conditions of employment for employees because they were made in conformity with the obligations imposed upon the Commission under s 10 of the Act: Re Pastoral Industry (State) Award; Application by Australian Business Industrial for a new award and another matter (2001) 104 IR 168; [2001] NSWIRComm 27 at 171 [14] (Walton J, Vice-President, Schmidt J, Deputy President Grayson and Commissioner Connor) (“Re Pastoral Industry Award”); City of Sydney Award at [12] (Walton J, President, Commissioners Stanton and Newall). Thus, where a party seeks to alter an award, they have the onus of demonstrating, on the evidence, that the existing award does not provide fair and reasonable conditions of employment: Re Storeworkers - IGA Distribution Pty Ltd New South Wales Distribution Centres Award 2002 (2002) 124 IR 1; [2002] NSWIRComm 156 at 11 [42] (Walton J, Vice-President, Deputy President Harrison and Commissioner Patterson). Whether the conditions of employment in the award are fair and reasonable is a primary test for evaluating whether an award should be altered: Re Club Employees (State) Award (2002) 122 IR 272; [2002] NSWIRComm 362 at 323 [102] (Wright J, President, Boland J, Deputy President Sams and Commissioner Redman); Re Operational Ambulance Officers (State) Award (2001) 113 IR 384; [2001] NSWIRComm 331 at 418 [164] (Walton J, Vice-President, Deputy President Grayson and Commissioner McLeay).

Hence, I am of the view that a dialogue or exchange between the Bench and the parties would not suffice to amount to consideration or a response to a clearly articulated, substantial argument given the higher level of formality that the Commission accords to arbitral proceedings for dispute orders. This is fortified in the First and Second Disputes given that witnesses were called to give evidence, documents were formally tendered and substantive arguments were made in a seriously contested proceeding.

There is obvious difficulty for courts to deal with this ground when no reasons are given as is the case for both the February and March Orders. In PSA v Treasury Secretary [2014], Basten JA stated at 333 [59]:

Similarly, in WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593, French, Sackville and Hely JJ (as their Honours then were) stated at 604-605 [47]):

As stated by Leeming JA (with whom Meagher JA agreed) in Tonab Investments Pty Ltd v Optima Developments Pty Ltd (2015) 90 NSWLR 268; [2015] NSWCA 287 at 291 [121], “[a] failure to address a substantial component of a party’s case can amount to jurisdictional error”. There is some consideration as to whether a failure to address a substantial, clearly articulated argument may amount to a failure to afford procedural fairness or, as the defendant submitted in this Court, to a constructive failure to exercise jurisdiction.

In the passages extracted above from Dranichnikov, Gummow and Callinan JJ expressed that a failure to consider a substantial, clearly articulated argument meant there was a failure to accord natural justice. Hayne J also expressed the same view.

However, more recent authorities from the Court of Appeal favour the view that a failure to respond to a substantial and clearly articulated argument amounts to a constructive failure to exercise jurisdiction. In Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33, Basten JA (with whom Beazley JA, as Her Excellency then was, agreed) noted at [9] that:

In State Super SAS Trustee Corporation v Cornes [2013] NSWCA 257, Basten JA (with whom McColl JA and Preston CJ of LEC agreed) also observed at [11] that:

Most recently, in Day v SAS Trustee Corporation [2021] NSWCA 71, Meagher JA, after reviewing the authorities on the constructive failure to exercise jurisdiction, stated at [37] that:

Furthermore, in DNA17, Kerr, Davies and O’Bryan JJ held at [54]:

Therefore, if it is shown that the Association’s representatives made a substantial and clearly articulated argument that was not considered or responded to by the Commissioner, that may amount to a constructive failure to exercise jurisdiction and thus jurisdictional error.

In addressing whether or not there has been a failure to respond to a substantial, clearly articulated argument made a party, the concern of the law in this area is to avoid “practical injustice”: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at 13-14 [37] (Gleeson CJ); Rodger v De Gelder (2015) 71 MVR 514; [2015] NSWCA 211 at 532 [93] (Gleeson JA with whom Macfarlan and Leeming JJA agreed); AAI Ltd trading as GIO as agent for the Nominal Defendant v McGiffen (2016) 77 MVR 348; [2016] NSWCA 229 at 360 [51] (Meagher, Simpson and Payne JJA).

The defendant acknowledged that there can be an aspect of “materiality” of the kind described in Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 (“Hossain”). With respect, I agree with Kerr, Davies and O'Bryan JJ in DNA17 at [54] that “the requirement of substantiality is equivalent to considering whether the failure is material to the outcome”. Their Honours stated at [54] that:

In Hossain, Kiefel CJ, Gageler and Keane JJ found that the Administrative Appeals Tribunal had erred in construing and applying the criterion relating to the timing of the making of an application. However, their Honours held that this did not amount to jurisdictional error because the breach could have “made no difference to the decision which the Tribunal in fact made”: at 136 [35].

The plurality held at 134 [30]-[31]:

In MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590; [2021] HCA 17, Kiefel CJ, Gageler, Keane and Gleeson JJ explained at 592 [2]:

The plurality explained that the plaintiff in an application for judicial review (which would be the defendant in this case as they are seeking to attack the validity of the Commission’s orders) must “bear the onus of proving on the balance of probabilities all the historical facts necessary to sustain the requisite reasonable conjecture”: at 600 [39]. The plurality explained:

In the First Dispute, the Association advanced a number of contentions as to why the Commission should not make dispute orders of the kind sought by the Secretary. There are two arguments that I consider to be particularly significant.

First, Ms Davis submitted to the Commission that the Secretary had delayed notifying the dispute to the Commission. In cross-examination, Ms Allen accepted that the Secretary had, in fact, been aware of the threatened industrial action on 15 February 2022 since 4 February 2022. The transcript records the following exchange:

Ms Davis submitted that the Secretary had a “whiff or hint of industrial action…over a week [ago], they had signals two weeks ago and definite confirmation that subbranches had voted to take industrial action a week ago” and that the delay by the Secretary in only notifying the Commission on the afternoon of 11 February 2022 militated against the grant of dispute orders. Her argument was two-fold.

Secondly, Ms Davis submitted that the potential loss, damage and economic impact of the threatened industrial action would not be as significant as that submitted by the Secretary. The Association pointed out that:

I am satisfied that these two arguments above were “clearly articulated” before the Commissioner. Perhaps apart from some evidence or specificity about the number of members who had made childcare plans or the extent of inconvenience, Ms Davis’ arguments in the above respects were articulated in a clear way that the Commissioner would have been put on notice as a significant argument against the making of dispute orders.

These two arguments were also “substantial” in the sense that they were clearly material to the question before the Commissioner. As explained earlier in this judgment, these arguments are directly relevant to the exercise of the Commission’s discretion. The first argument relating to the delay in the Secretary’s notification went to the balancing exercise between whether to make or not make dispute orders. The second argument regarding the extent of potential loss, damage and economic impact of the threatened industrial action went to a mandatory relevant consideration in s 146(2) of the Act. This was in the context of significant industrial issues raised by the Association, namely, the pay for nurses and midwives when there had been higher levels of patient care during the COVID-19 pandemic and the necessary skill mix and staffing levels in hospitals.

In failing to say a word about these two clearly articulated, substantial arguments, it may be inferred that the Commissioner failed to apply himself to properly exercise the discretion to make dispute orders. What the Commissioner did amounted to a jurisdictional error. The Commissioner’s orders are to be regarded as a purported and not real exercise of the statutory function in ss 136(1)(c) and 137(1)(a) of the Act. The statutory function was not lawfully exercised because there was no consideration or response to the Association’s clearly articulated, substantial arguments.

There was a practical injustice because, if the Commissioner had accepted the arguments of the Association in the circumstances of the First Dispute, there was a realistic possibility that the Commissioner may have refused to make dispute orders, made dispute orders in different terms or exercised another power available to him (such as making a recommendation or direction to the parties under s 136(1)(a) of the Act).

For these reasons, the Commissioner constructively failed to exercise jurisdiction. The February Orders were vitiated by jurisdictional error and are, in law, no decision at all. In these circumstances, I find that no legally valid dispute order was contravened and, in these circumstances, the Court should take no action. Accordingly, the Amended Summons, insofar that it relates to the alleged breaches of the purported February Orders, should be dismissed under s 139(3)(a) of the Act.

I make two further observations. First, I note, for completeness, that there were two other arguments that were broadly advanced by Ms Beard.

One argument was that some of the industrial claims advanced by the Association and its members could not be obtained as a result of s 146C of the Act and the wages policy in the Regulation. Ms Davis outlined that the Association is “seeking minimum staffing levels in areas that are currently not covered by the NHPPD schema, we’re seeking that patient specials, that is to say patients that require dedicated attention, one-to-one care or one-to-two care from a nurse, don’t come out of the existing minimum numbers for the ward but come above it”.

This argument lacked specificity. It did not explain how the Association’s claim would exceed wages cap on employee-related costs. It merely asserted that it did. Nor did Ms Davis explain whether there were any employee-related cost savings that have been achieved that could fully offset the increased employee-related costs beyond the policy in cl 6 of the Regulation. I am not satisfied that this argument was “clearly articulated” in the relevant sense.

Furthermore, as I noted above, the provisions in cls 6 and 6A of the Regulation are not insurmountable. I consider it unlikely in the industrial context that a submission of this kind is persuasive in favour of a union unless the union has endeavoured to create an environment that the cap is overcome by proposed employee-related cost savings but the employer has unreasonably refused to agree to the necessary offsets: see generally Re Correctional Officers.

Another argument that Ms Davis submitted was that the Secretary had breached cl 53 of the Public Health System Nurses’ and Midwives’ (State) Award 2021 (NSW) (“the Award”) and that the Secretary did not come with “clean hands”. In cross-examination, Ms Allen appears to accept that there were instances where nurse and patient ratios had not been maintained in accordance with cl 53 of the Award. The Association also tendered a document to the Commission with a table that showed multiple alleged breaches of cl 53 of the Award.

As I explained above, the conduct of the parties is a relevant consideration. The fact that the party seeking dispute orders had allegedly contravened a provision of an award can be considered. Although I am satisfied that the submission by Ms Davis was clearly articulated, it was not articulated in a substantial way. A union alleging a breach of an award can (and should) notify the Commission under s 130 of the Act and have the matter dealt with accordingly: FBEU v FRNSW [2012]. Allegations of breaches of awards may also be dealt with by seeking a civil penalty under s 357 of the Act.

There may be circumstances where an alleged breach of an award can be sufficiently substantial in the sense that it could alter the ultimate outcome. This would likely be the case where the immediacy of the breach meant that the mechanisms under ss 130 or 357 of the Act could not adequately and effectively remedy the breach with the requisite expedition. An example would be where the breach creates a highly dangerous risk to workplace health and safety. No such arguments were put by Ms Davis.

In the instant case, it appears from the evidence that this was the first occasion that the Association had raised this alleged breach with the Commission. The alleged breach, which Ms Davis said was ongoing, did not have a close connection with the industrial dispute notified by the Secretary, which focused on the imminent strike. Before the First Dispute, the Association had not taken any steps under ss 130 or 357 of the Act to deal with the alleged breach in the Commission, Local Court or this Court. Overall, it is quite inconceivable that the submissions relating to an alleged breach of cl 53 of the Award could result in the Commissioner reaching a different decision.

Also, there is no requirement that a party seeking dispute orders must come with “clean hands”. The equitable principle that “he who comes to equity must come with clean hands” is not a defence to applications for dispute orders. I am not satisfied that either the allegations of breaches of cl 53 of the Award or the unclean hands of the Secretary could have affected or been material to the decision to make dispute orders in the circumstances of the proceedings before Commissioner Murphy.

Secondly, at the hearing, the defendant did not seek any orders or declaration if the Court found that the February Orders are not legally valid. As discussed above, s 179 of the Act does not prevent this Court making a declaration that a purported decision of the Commission is invalid.

It is a requirement for the making of a declaration that it will have foreseeable or practical consequences for the parties: Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship (2013) 251 CLR 322; [2013] HCA 53 at 391 [233] (Kiefel and Keane JJ, as Kiefel CJ then was); Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10 at 582 (Mason CJ, Dawson, Toohey and Gaudron JJ). I express no concluded view but it does appear that a declaration can have practical consequences for the parties in future industrial matters and for the purpose of making clear the validity and effect of the February Orders. Of course, the making of a declaration is discretionary: Forster v Jododex (1972) 127 CLR 421 at 435 (Gibbs J, as his Honour then was).

I am hesitant to make a declaration that the February Orders are invalid in this judgment for two reasons. The first is that the defendant did not bring judicial review proceedings and it should not be assumed that ordinary remedies in judicial review proceedings would follow axiomatically in industrial proceedings where a collateral attack is brought. The second is that a declaration was not expressly sought, and no argument was heard on it. However, it is appropriate to grant liberty for seven days from the publication of this judgment to allow the parties to seek a declaration that the February Orders are invalid for the reasons given in this judgment.

The defendant’s written submissions stated that the “central and critical elements” of the Association’s case as to why dispute orders should not be made were as follows:

In relation to argument (i), the Association tendered further evidence of nursing hours per patient from June 2021 to December 2021. Ms Allen also conceded in cross-examination that average weekly nursing hours per patient were less than the require minimum in cl 53 of the Award. Ms Beard submitted that cl 53 of the Award was being breached.

In relation to argument (ii), Ms Beard stated:

In relation to argument (iii), Ms Beard stated:

As noted above, I do not accept the prosecutor’s submission that the Commissioner had responded to the defendant’s case in the dialogue between the Commissioner and Ms Beard. In the circumstances, the Commissioner’s questioning amounted to consideration or a response.

The three arguments of the Association must be understood in their broader context. The log of claims was already before the Commission. Compulsory conferences and conciliation had been listed in IRC file number 2022/00041072 and was ongoing in relation to the claims brought by the Association.

As discussed above, the issues raised by the alleged breaches of cl 53 of the Award in argument (i) were not “substantial” in the relevant sense. It is noteworthy that the Commission was seized of the alleged breach and the defendant could use those processes to seek recommendations, directions, orders and other mechanisms to achieve compliance with the relevant provisions of the Award.

In relation to argument (ii), it must be remembered that the Parliament envisaged that industrial disputes are to be resolved by conciliation and, if necessary, by arbitration. It is plainly inconsistent with the objects and provisions of the Act if, whilst the Commission is seeking to resolve an industrial dispute, the parties to “go their own way” with industrial action. It is contrary to the purpose of Ch 3 of the Act, which is to facilitate the fair and just resolution of industrial disputes with the assistance of the Commission and without the need to resort to industrial action. Accepting argument (ii) when the Commission is seized of the dispute would be inconsistent with the statutory scheme.

In circumstances when the Commission is actively seized in conciliating or arbitrating an industrial dispute, it has not been accepted in the NSW industrial relations system that a party should be permitted to engage in industrial action so as to increase their bargaining power. Higgins J wrote extra-curially that a system of conciliation and arbitration was to be a “new province for law and order” where legally regulated processes were “to secure the reign of justice as against violence, of right as against might”: HB Higgins, A New Province for Law and Order (Constable, 1922) at page 60. Its whole design was to prevent, at least to a considerable extent, the need for industrial action and the wielding of economic force to settle disputes. Instead, the Act provides arbitration as an alternative method for disputants – one that has as a level-playing field for both employers and employees to be heard and for disputes to be settled by reason: see Stemp v Australian Glass Manufacturers Co Ltd (1917) 23 CLR 226 at 243 (Higgins J) (“Stemp v AGM”).

In Director-General of the New South Wales Department of Education and Communities v New South Wales Teachers Federation [2012] NSWIRComm 93 (“Education Director-General v NSWTF [2012] NSWIRComm 93”), the President, Boland J, after much learning and experience, made the following profound observation at [27]:

Ms Beard’s argument, however, may be more readily accepted in the Federal industrial relations system particularly where protected industrial action is a permitted feature in negotiating enterprise agreements. But there is no place in importing into the NSW industrial system concepts that resonate with or emanate from the Fair Work Act 2009 (NSW) (“Fair Work Act”) in a collective bargaining sense. The divergence in systems of industrial regulation and the significant different parameters between the Federal and NSW systems has been considered at length in decisions of the Commission: see, eg, State Wage Case 1999 (1999) 88 IR 363 at 389 (Wright J, President, Walton J, Vice-President, Hungerford and Schmidt JJ, and Deputy President Harrison). In Re Pastoral Industry (State) Award, the Full Bench (Walton J, Vice-President, Schmidt J, Deputy President Grayson and Commissioner Connor) surveyed the provisions of the NSW Act and the WR Act and concluded that “the differences which now exist between the two legislative schemes, so far as the respective award making powers of the two tribunals are concerned and how they are exercised in practice, are stark” (at 177 [28]) and that that the Commission’s “award making powers under the Act are, at this point in time, considerably broader than those of the AIRC pursuant to the WR Act and are substantially directed to considerably different purposes” (at 178 [29]).

Therefore, I am of the view that argument (ii) does not meet the threshold for substantiality or materiality.

Argument (iii) relied upon a media release issued by the Ministry of Health. Although it can be inferred that the Association was submitting that the threatened strike on 31 March 2022 would also not have clear adverse consequences, this argument was flimsy and only made in passing. Unlike Ms Davis in the First Dispute, Ms Beard did not explain what steps the Association had taken to coordinate with nurse managers or minimise the impact on patient care. The argument was not sufficient to rise to the level of being “clearly articulated” to put the Commissioner on notice.

I am not satisfied that the arguments of the Association in the Second Dispute were “substantial” in the relevant sense. At the time of the Second Dispute, the Commissioner was in the midst of dealing with the claims of the Association and issues raised from the First Dispute, including the log of claims from the Association, and would have been aware or likely formed the view that the Association had deliberately and flagrantly contravened the February Orders, on the face of them, in the previous month (although I have now found that those orders were vitiated by jurisdictional error).

In those circumstances, it is very difficult to see how there was a real possibility that the Commission could, even if the three arguments advanced by the Association were clearly articulated and considered as a whole, have reached a different outcome. In the circumstances, the Commission would in all likelihood have made dispute orders against the threatened industrial action even if the arguments of the Association were fully considered.

I emphasise that no part of the assessment above involves the merits of the arguments although they clearly derive from an understanding of how the Commission would ordinarily operate in the circumstances that the Commissioner was in. It is not the role of this Court to decide what the “correct and proper” decision of the Commissioner should have been. The focus is always on what the Commission could, not should, have reached.

It can be observed, with no disrespect to Ms Beard, that the arguments she made were articulated and developed rather faintly. This no doubt flowed from the context of her submissions which is quite removed from the circumstances of this judgment. At the time of the Second Dispute, there was no suggestion that the February Orders were invalid or would be subject to appeal, judicial review or collateral attack. Indeed, immediately before Ms Beard addressed the Commission, Ms McDonald (as the Commissioner then was) had made submissions in very strong terms that the Association had been “essentially urging and promoting the idea of breaching the [February] orders”. Ms McDonald forcefully submitted that, “[i]t’s not a great position for the [A]ssociation to be putting and it certainly would make the Commission all the more ready to make the orders that my client [the Secretary] comes today to seek”. Against this precarious background, it is perhaps unsurprising then that Ms Beard made circumspect submissions.

The defendant has not made out that the Commissioner failed to respond to a clearly articulated, substantial argument with respect to the Second Dispute. As explained above, although the Commissioner made an error of law in failing to give reasons, this did not amount to jurisdictional error. I do not accept that any of the bases that the defendant has submitted show that the March Orders were vitiated with jurisdictional error. The collateral attack on the March Orders must fail.

I make one further observation. In their submissions, the defendant criticised the conduct of the Commissioner in the following terms:

Although it may be irregular in some cases for the Secretary’s representative is not afforded an opportunity to reply, I see no error in this approach by the Commissioner in that respect. The Commissioner may dispense with hearing from the Secretary’s representative in reply if they are satisfied, after genuine and proper consideration of the arguments by the parties, that the Secretary should succeed in their application.

Further, the use of draft or proposed orders submitted by the Secretary “as a template” should not attract criticism. It is common in courts and tribunals for the moving party to state the orders or relief that they seek. If the moving party succeeds in the merits of their application, it is then for the Commissioner to decide whether the relief should be granted in the terms proposed or on different terms. Using the Secretary’s draft or proposed orders did not amount to error.

I now turn to consider whether the pleaded contraventions of the March Orders are made out. In light of the foregoing conclusion that the February Orders were vitiated with jurisdictional error, it is strictly unnecessary to consider the pleaded contraventions of those purported orders. However, for the benefit of the parties and given that I heard full argument on the issue, I will briefly consider the pleaded contraventions of the February Orders.

The Amended Summons filed by the prosecutor pleaded ten contraventions of the February and March Orders. In summary:

On the assumption that the dispute orders were legally valid, the defendant’s submissions can be summarised as follows:

At the outset, it is convenient to split the contested particulars based on the arguments raised by the defendant into the following three broad groups:

The prosecutor relied on the Affidavit of Elizabeth Allen affirmed 5 April 2022 (“Allen Affidavit”) to establish the particulars of each pleaded contravention. Following evidentiary rulings made on the first hearing day, 13 particulars were withdrawn and struck out in the Amended Summons.

On the first group of contested particulars, the prosecutor submitted that “the sending of the relevant notice was done to aid, encourage, to organise, et cetera the relevant strike”. Counsel for the prosecutor made clear that she relied on the issuance of the notices as a contravention of the orders on different days by different Branches and different individuals.

The prosecutor submitted that “abet” means “assistance of some description” and “authorise” is “to give approval”. Counsel for the prosecutor submitted as follows:

There appears to be some confusion as to whether the prosecutor sought to rely on these notices to establish that the meetings and votes were conducted in breach of the orders, as distinct from the mere issuance of the notices to the prosecutor. Ms Bulut stated on the second hearing day:

On the third hearing day, the counsel for the prosecutor in reply appeared to contradict her earlier submissions as to whether the prosecutor used this material to prove that meetings and votes were held in contravention of the March Orders. Ms Bulut said:

On the second and third groups of contested particulars, the prosecutor relied on the evidence in the Allen Affidavit.

The prosecutor submitted that the defendant can take industrial action by reason of the fact that its members took industrial action and the conduct of the defendant’s members is attributable to the defendant. It was submitted that the strike itself, as distinct from the organisation of the strike, that represents a separate contravention, relying on Education Secretary v AEU [2022] at [343]-[345] (Walton J). The prosecutor’s argument was developed through the note that was filed.

First, an industrial organisation can be subject to a dispute order under s 137(1)(a) of the Act to refrain from taking industrial action. The Court of Appeal recognised in PSA v Industrial Relations Secretary [2018] that the power of the Commission under s 137(1)(a) of the Act extends to making dispute orders directing an industrial organisation to refrain from directing its members to engage in industrial action or to refrain from organising industrial action.

Secondly, the defendant may be held accountable for industrial action taken by its members. In this respect, the prosecutor relied on BlueScope v AWU [2005] NSWIRComm 99 at [91] in which Boland J (as his Honour then was) observed that contravening acts of a member, officer or employee may be held to be a contravention by an industrial organisation.

It followed from these two points that:

The prosecutor submitted that this is consistent with the purpose and intention of the Act, which conceives of a union as a mechanism through which union members may be regulated. It was emphasised that the Act does not directly regulate the conduct of union members and penalties cannot be imposed on individual employees. In this respect, counsel for the prosecutor submitted:

In relation to both pleaded contraventions, the prosecutor relied on Facebook posts made by the defendant that amounted to a “call to action” for members to strike and attend rallies. She further submitted:

The prosecutor submitted that pleaded contraventions A to J in the Amended Summons were separate contraventions of the February or March Orders for the purposes of setting penalties.

The prosecutor accepted that “[c]ontravening conduct which continues from day-to-day which is not conduct of a homogenous kind may be regarded as separate contraventions”. However, the prosecutor submitted that there is insufficient legal and factual overlap to engage the course of conduct principle. The prosecutor submitted:

The prosecutor relied on Industrial Relations Secretary v PSA [2017] where the conduct of the union in maintaining a notice on its website directing its members to strike amounted to a contravention that spanned multiple days. The prosecutor submitted that conduct or action “of a homogenous kind” should be understood as referring to “the same conduct that spans a numbers of days”.

It was submitted that the conduct of the defendant in the alleged breach of the March Order was distinguishable to the kind in Industrial Relations Secretary v PSA [2017]. Counsel for the prosecutor submitted:

During the hearing, Ms Bulut submitted that the course of conduct principle is separate to determining the number of contraventions. Her submission was in the following terms:

In any event, counsel for the prosecutor submitted that, 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. Therefore, counsel for the prosecutor submitted that this Court should impose more than one penalty in order to ensure that the wrongdoing.

In relation to the first group of contested particulars, the submission by the defendant appears to be two-fold. The first is that communication to an employer of an intention to engage in industrial action cannot constitute organising members to take industrial action nor can it amount to inducing, advising, authorising, supporting, encouraging, directing, aiding or abetting members to engage in industrial action. Thus, there could not be said to be a breach of the March Orders.

Secondly, although the defendant accepted that the holding of a vote “plainly would” amount to “organisation” or “inducement” of industrial action, it pointed out that some of the emails or letters do not identify when the Branch met or when the vote occurred. There is thus an “evidentiary lacuna” as to whether the meeting or vote occurred after the March Orders were made on 25 March 2022. Therefore, the prosecutor cannot establish that any breach that arises from the conduct of the meetings or votes occurred after the March Orders came into effect.

In this respect, the defendant relied on the decision of Jagot J in Fair Work Ombudsman v Maritime Union of Australia [2017] FCA 1363 (“FWO v MUA”) at [80] in relation to the meaning of the verb “organising” in s 417 of the Fair Work Act. Counsel for the defendant submitted:

In relation to the second group of contested particulars, the defendant submitted that there is a lack of evidence that the relevant email and text message was sent to a member of the defendant. In these circumstances, they submit that it could not be established that the defendant breached order A2 of the March Orders.

In relation to the third group of contested particulars, the defendant submitted that pleaded contravention D particular (c) relates to radio broadcast that merely records the outcome of a vote. This does not, of itself, constitute “organisation” or “inducement” of industrial action of the kind captured by the March Orders.

Pleaded contravention F particular (c) concerns an email that says the defendant’s members “have chosen to defy the orders as per the directive from the NSWMNA”. The defendant submits that “[i]t is not clear what directive is being referred to or when it was issued” and “[a]bsent evidence as to what the directive referred to is and that the votes referred to occurred after the orders were made, the email does not establish a breach of the Orders”.

Counsel for the defendant submitted that the particular contravention is premised solely on the defendant not refraining from taking industrial action and not that it organised the industrial action or otherwise induced it or aided or encouraged it. Precision and particularity is required and, absent consent or acquiescence by a defendant, the prosecutor should be held to their pleaded case.

The defendant submitted that industrial associations and organisations do not take industrial action, only employees and employers do. This is because the definition of “industrial action” in the Dictionary to the Act refers to “a strike by employees or a lock out by an employer”. As a matter of statutory construction, it was submitted that “industrial action” is something that can be engaged in only by employees or employers.

The defendant relied on PSA v Industrial Relations Secretary [2018] at 789 [118]-[119] and 790-791 [124]-[129] as authority for the proposition that an industrial organisation, like the defendant, is legally incapable for taking “industrial action” as that expression is defined in the Dictionary to the Act. In particular, reliance was placed in the “dispositive analysis” of Bathurst CJ at 790 [124] that relevantly stated:

The defendant submitted that, whether industrial associations are, as a matter of statutory construction, capable of engaging in industrial action was an “integral component” of Bathurst CJ’s reasoning. It therefore forms part of the ratio decidendi of the case and is binding on this Court. Alternatively, it was seriously considered obiter dicta of an intermediate appellate court which this Court is required to follow unless it considers it is plainly wrong. In this respect, counsel for the defendant submitted that [343]-[344] in Education Secretary v AEU [2022] are “plainly wrong” and contrary to PSA v Industrial Relations Secretary [2018] and can be departed from (citing In the matter of Ming Tian Real Property Pty Ltd (2020) 145 ACSR 329; [2020] NSWSC 212 (Gleeson J) (“Ming Tian”)).

The defendant submitted that the prosecutor’s reliance on BlueScope v AWU [2005] NSWIRComm 99 was misplaced because the issue in that case concerned whether the union and its officers and employees took all reasonable steps to ensure compliance with the dispute orders, not whether it could take industrial action.

In response to the prosecutor’s submission that there were separate and distinct breaches because the notices notifying of industrial action came from different branches of the union, the defendant submitted that this is a “somewhat unrealistic appraisal of what was going on”. When the evidence is considered as a whole, it is plain that the organising of industrial action was procured by the defendant. The Branches were not acting independently or off the bat. It was a course of conduct.

The defendant submitted that the prosecutor’s approach is directly contrary to Education Secretary v AEU [2022]. The defendant submitted that the breaches occurred on consecutive days, all directed at the Secretary and were directed at the same ends in relation to organising industrial action on 15 February and 31 March 2022. In those circumstances, the conduct was akin to the circumstances in Education Secretary v AEU [2022] where contraventions were found to have occurred over a number of days.

The defendant submitted that there was, plainly, a legal and factual relationship between the contraventions alleged of the February Orders on 14-15 February 2022. There was also a legal and factual relationship between the contraventions alleged of the March Orders which are said to have occurred over 25-31 March 2022. The written submissions of the defendant were as follows:

On the assumption that their submissions with respect to pleaded contraventions B to F and J were accepted, the defendant submitted that pleaded contraventions H and I were in the same course of conduct that amounted to only one contravention. There is thus only a single breach of the February Orders (pleaded contravention A) and a single breach of the March Orders (pleaded contraventions H and I).

I will first consider the submission by counsel for the defendant that the notices by email or letter to inform representatives of the Secretary that members of the Association were going to take industrial action does not constitute a breach of the March Orders. As noted above, the principal basis for this is that it does not constitute “organising…industrial action” or an act that “induce[s] … members of the Association to organise and take industrial action”.

In Australian Building and Construction Commissioner v Huddy [2017] FCA 739, White J considered the meaning of the word “organise” in the context of s 417 of the Fair Work Act. His Honour expressed the view (at [67]) that the “organisation” of “industrial action”, for the purposes of s 417 of the Fair Work Act, involves “the intentional arranging, bringing about, putting in place, procuring or coordinating the action in question” and that “organising has the connotation of positive conduct which 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 do so”. White J’s consideration concerning the meaning of “organise” in the context of s 417 of the Fair Work Act has been accepted in FWO v MUA at [80] (Jagot J) and in other subsequent cases: see, eg, Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Bay Street Case) (2018) 260 FCR 564; [2018] FCA 83 at 588 [95] (Bromberg J).

The word “organise” is “of large connotation”: Pirrie v McFarlane (1925) 36 CLR 170 at 203 (Isaacs J). The term does not appear in s 137 of the Act or in the definition of “industrial action”. Thus, unlike the decisions of the Federal Court concerning s 417 of the Fair Work Act where the interpretation of “organising” requires “[c]areful attention … to the statutory context in which the word appears” (BlueScope Steel Limited v Australian Workers’ Union [2018] FCA 1574 at [11] (Wigney J)), the interpretation of “organising” in order A1 of the March Orders must be approached in its own unique context.

It must be remembered that the March Orders were made by a specialist industrial tribunal and directed to industrial parties in the proceedings arising from a notified industrial dispute. Therefore, the phrase “organising…industrial action” in the March Orders should be interpreted as that term is understood in industrial parlance. It follows that the definitions of “organise” or “organising” from general dictionaries are not of any great assistance in this case. Commissioner Murphy is steeped in knowledge of industrial law and he would have undoubtedly used the term “organising” in the March Orders as it is understood in the industrial context.

The term “organise” can be used in a very broad industrial sense to mean forming a union or enrolling new members into a union. This is seen in notions that workers have a “right to organise”. The term “organising”, in the context of unions, can encompass notions of collective action, bargaining and representation.

When the term “organising” is used as a verb in the sense of “organising…industrial action”, it is sufficiently broad to include acts of initiating, preparing or coordinating, or making arrangements for, industrial action. It is not limited to the marshalling, rallying or coordinating of relevant employees. Depending on the circumstances, it can include the acts of planning and mobilisation by key union individuals to facilitate a more orderly and effective strike. Careful attention must be paid to the office or authority of the person who is doing the relevant acts. A union general secretary that encourages and enables industrial action may be said to be organising it but a detached observer doing those acts may not.

In Director, Fair Work Building Industry Inspectorate v Robinson (2016) 241 FCR 338; [2016] FCA 525, Charlesworth J observed at 348 [53] that the word “organise” in s 417 of the Fair Work Act may “inherently involve a number of discrete acts directed at achieving cohesiveness in a result (in this case, a single episode of industrial action)”. Her Honour’s observations were applied in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (No 3) [2017] FCA 10 at [33] (Besanko J).

When understood in the broader context of industrial relations, the communication from Branch presidents or other senior officers of the defendant to the prosecutor is commensurate with the union’s obligations to provide for sensible arrangements and order in relation to industrial action by employees of essential services, especially where the action may affect the provision of life-preserving services. The notices are demonstrably part of the defendant’s role as a collective entity. Although it is part of the goodwill shown by the defendant, it is undoubtedly an ordinary aspect of the planning, preparation and coordination of a strike. The maturity of the defendant’s actions and its careful adherence to its underlying policies does not detract from the fundamental proposition that it is putting in place arrangements for the taking of industrial action.

The construction that Mr Boncardo insists is an artificial and technical one that ignores the practical realities of how industrial organisations effectuate industrial action. It would be a strange occurrence that a strike would occur without some notification to the employer that it is about to begin or has begun. This is because a credible threat of a strike can often be just as potent or powerful as a strike itself. “[C]onsiderable industrial disruption can be caused by the threat of industrial action as well as from industrial action itself”: PSA v Industrial Relations Secretary [2018] at 789 [121] (Bathurst CJ). Industrial parties, including large, established employers and unions like the prosecutor and defendant, would be very well aware of this. Therefore, notification to the employer of an imminent strike is a necessary and important aspect to building leverage and increasing the bargaining strength of employees. The notice is plainly an act that makes the strike more effective or makes it accord with responsible policies of an organisation when their members take industrial action. It was clearly part of organising industrial action. It was clearly within the purview of the March Orders.

It would be naïve to ignore the particular significance of sending these notices after the March Orders were made. After the March Orders were made, an employer should be able to assume that the defendant would and should comply with those orders and that the threatened industrial action would not occur. The notices that were sent after the making of the March Orders had the effect of indicating to the Secretary that industrial action is still being persisted in each of the Branches. Those notices carried with it the authority of defendant. It was not a spur-of-the-moment thing. The Secretary would have realised that the threat of a strike thus continues to loom large notwithstanding the dispute orders made by the Commission. Therefore, it is immaterial that the Branch or member meetings and votes referred to in the communications may possibly have occurred before the March Orders were issued. It is the conduct of the defendant (after the March Orders were made) in notifying the prosecutor that the defendant’s members will be taking industrial action or that the strike is going ahead that amounts to “organising…industrial action”. Accordingly, the submission of the defendant that the communications cannot amount to a breach of the orders must be rejected.

Hence, I am satisfied, with respect to each of the particulars in the first group of contested particulars, that the notices were sent after the defendant became aware of the March Orders and amounted to “organising…industrial action” in breach of those Orders.

However, I reject the submission by counsel for the prosecutor in reply that the notices are evidence that the Branch meetings and votes took place after the March Orders were made. In some cases, the communications expressly state the votes occurred on dates before 25 March 2022. For example, the email relied on in pleaded contravention D particular (e) communicates the result of a vote to take strike action in a meeting of members of the Long Jetty Continuing Care Branch held on 21 March 2022.

Where the communications are silent on the date and time of the Branch meetings, I am not able to infer the date and time of the votes merely from the date and time that those communications were sent. This is especially so because the evidence from Mr Holmes’ email on 25 March 2022 was that, as at that time, “[a] majority of NSWMNA branches have now met and voted in favour of a 24-hour strike on 31 March”.

First, pleaded contravention C particular (a) relates to the email (extracted above) sent by Mr Holmes on the afternoon of 25 March 2022. Counsel for the defendant submitted that “[i]t is not apparent who the email was sent to, nor is there any evidence … that it was sent to the defendant’s members nor anyone employed under the Relevant Award”.

It is surprising that Mr Boncardo would submit that there is an “absence of evidence that the email was in fact sent to members of the defendant or any employee employed under the Relevant Award”. On 28 March 2022, Mr Holmes stated in his letter to Ms Murray (also extracted above) that this email was sent to “all Public Health System Branch members”, “all Association staff members”, “all members of the Association Executive” and “all members of the Association Council”.

It is obvious that particular (a) establishes that the defendant was both organising industrial action and inducing, advising, supporting and encouraging its members to take industrial action in contravention of the March Orders after those orders were made. This is so notwithstanding that the words “to its members” in [37] of Allen Affidavit was not read.

Secondly, pleaded contravention F particular (d) relates to a SMS message sent from the “NSWMNA” that reads:

Counsel for the defendant does not contest that it was sent by the defendant but submitted that a breach of the March Orders cannot be established because there is “no evidence that it was in fact sent to members of the defendant nor as to the date it was sent”. Mr Boncardo submitted that “[i]n the absence of evidence that the text message was in fact sent to members of the defendant to whom the Orders related or who were employed under the Relevant Award, this particular cannot be established”. I disagree.

The uncontested evidence of the Allen Affidavit was that the defendant caused the text message to be sent on 28 March 2022 at about 5:35pm. Although the screenshot does not necessarily prove that it was communicated to a particular person who was a member of the defendant or the extent to which it was sent, it proves that, on 28 March 2022, the defendant was promulgating a view that the “statewide STRIKE action” is to continue. The words “[h]old strong” plainly have all the indicia of a union organising a strike and urging its members to join in the industrial action. The language of “continue the fight” is classically the language of a union organising industrial action. It is quintessentially the phraseology adopted by industrial organisations in the organisation of industrial action.

Sending this message represents a positive act by the defendant to garner support so that the strike is more effective. The message was clearly part of an effort to build momentum and urge the reader to strike and attend planned rallies on 31 March 2022. The message would only make sense if it was targeted towards members of the defendant or employees of the NSW Health entities who were contemplating, or were at least aware, of the planned strike. This message would only resonate with those members and employees. I am satisfied on the balance of probabilities that this evidence shows that the defendant was organising industrial action in contravention of the March Orders in this respect.

Therefore, I am satisfied that each of the particulars in the second group of contested particulars establish breaches of the March Orders.

First, pleaded contravention D particular (c) relates to a statement by Mr Holmes on the 2GB radio station in the morning of 26 March 2022 that “[m]ore than 160 branches of the NSW Nurses and Midwives’ Association that cover the public health system have voted to take industrial action on Thursday the 31st. This follows our previous action in February”.

When heard in the context in which the news radio segment had introduced Mr Holmes, his statement was clearly an indication that the planned industrial action would be going ahead in defiance of the March Orders. This is an act of informing the public of upcoming industrial action and garnering wider support, which is an inherent aspect of making a strike more effective. Mr Holmes’ act of appearing on a radio station that broadcasts in Sydney and stating that there would be industrial action that follows a previous strike was an aspect of organising industrial action. I am satisfied that pleaded contravention D particular (c) establishes a contravention of the March Orders.

Secondly, pleaded contravention F particular (c) refers to the email from Ms Guinea (extracted above). This email is evidence of the fact that an organiser of the defendant understood or believed that there was a directive from the defendant to defy the orders of the Commission. In the absence of any countervailing evidence, it should be presumed that an email sent by an organiser (from their work email ending @nswmna.asn.au and included two logos of the Association in their signature) to an official of the prosecutor is a communication made on behalf of the defendant. There is no suggestion that Ms Guinea’s communication was untruthful or misleading, or that she concocted the existence of the directive.

Although the terms and details of the directive is unclear, it can be inferred from the surrounding passages “defy the orders” and “the strike will go ahead” that the directive related to the strike action on 31 March 2022 and that the defendant would be proceeding with the strike in defiance of the March Orders. Although it is unclear whether the directive was issued by a person, governing council or some other body, it can be readily inferred that it was made by some person or body that could speak for the defendant such that it was “from the” Association. The presumption of regularity is applicable in this case: see generally Marroun v State Transit Authority [2016] NSWSC 1830 at [134(5)] (Walton J).

I am satisfied that pleaded contravention F particular (c) establishes that the defendant was organising industrial action in contravention of the March Orders. However, I have taken into consideration at the stage of determining the appropriate penalty that Ms Guinea was replying to an email sent from the Director of Workforce of the Northern NSW LHD, Mr Richard Buss, who asked whether the proposed strike action would go ahead. Ms Guinea’s prompt response within a few hours was aimed at answering and providing clarity to Mr Buss’ inquiry. As I will discuss later, this demonstrates the defendant’s attitude of seeking to minimise disruption to the provision of important health services by giving notice to the prosecutor so that there is time to prepare for the industrial action.

Overall, I am satisfied that each of the particulars in the third group of contested particulars establish breaches of the March Orders.

As I explained above, the prosecutor has the responsibility to plead her case in the Summons. I agree with the defendant that this is because the Supreme Court Rules 1970 (NSW) require that the commencement summons “must state…the details and nature of the contravention that is alleged to have occurred”: Sch J Pt 1 cl 1(2)(d) under the heading “Industrial Relations Act 1996”. Furthermore, cl 1(4) requires that “[t]he details and nature of the alleged contravention must be verified by a supporting affidavit made by the prosecutor”.

One of the main purposes of pleadings is to define the issues in dispute with sufficient clarity to enable the defendant to understand the case they have to meet and to provide them with an adequate opportunity to prepare to meet that case: see Dare v Pulham (1982) 148 CLR 658 at 664 (Murphy, Wilson, Brennan, Deane and Dawson JJ, as Brennan CJ then was).

In Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279, Mason CJ and Gaudron J stated at 286-287:

In ABCC v Hall, Tracey, Reeves and Bromwich JJ stated 369 [50]:

Those observations are applicable to proceedings under s 139 of the Act where civil penalties are sought to be imposed against the defendant. In setting out the alleged contraventions and particulars in the Amended Summons, precision and particularity is required. Absent consent or acquiescence by a defendant, a prosecutor should be held to their pleaded case. The prosecutor is required to identify the essential factual ingredients said to constitute the contravention of the dispute orders: John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508 at 519-520 (Mason CJ, Deane and Dawson JJ). The relevant principles were stated in Taylor v Environment Protection Authority (2000) 50 NSWLR 48 at 56 [20]-[22], 57 [26] (Sperling J, with whom Meagher JA and James J agreed).

The specific conduct that particular (a) alleges is that the defendant, on or around 25 March 2022 to 31 March 2022, “created multiple events on its Facebook page which set out the details of the industrial action that would be taking place on 31 March 2022, including where and when to meet”. The Amended Summons lists Facebook event names that say “Nurses and Midwives STRIKE:” followed by a location in NSW.

Particular (b) states that “[a] strike and multiple rallies occurred across the State of New South Wales, which was organised by the Defendant” (my emphasis in italics). Particular (c) states that Mr Holmes attended a rally and said “so we have to change the Minister’s mind or change the Minister”. The remaining particulars (f)-(h) allege that the defendant “caused a post to be published on its Facebook page” and then quotes the text of the posts made on 31 March and 1 April 2022.

The particulars in the Amended Summons do not correspond with the case put by counsel for the prosecutor in her oral submissions or the pleaded contravention itself. At no point in the particulars does it specify that members of the Association (whose conduct counsel for the prosecutor submitted is attributable to the defendant) engaged in the strike or some other form of industrial action. The highest that the prosecutor put in the particulars is that “a strike…occurred” and that the strike was “organised by the Defendant”.

The particulars did not identify who was striking or taking industrial action. Although the text of the Facebook posts in particulars (f)-(h) refer to “nurses and midwives”, this is deficient because it does not identify with specificity that they were members of the defendant or their connection to the defendant or the extent of the defendant’s control over them (whether by a direction, recommendation or otherwise). It is also deficient because the prosecutor only particularises that the defendant caused the posts to be published on Facebook, not the truth of them.

The creation of events on Facebook has the effect of, first, publishing event information access to all Facebook users and, secondly, providing updates and notifications to Facebook users who are invited or who click “Going” or “Maybe”. I am of the view that this is conduct that clearly would amount to organising the strike.

However, organising industrial action is quite different to taking it. Action may be “taken” in furtherance of action which others may have “organised”. The term “take” is defined in the Shorter Oxford English Dictionary as including (perhaps unhelpfully):

The person who is “taking” the industrial action need not be the person who was “organising” it. It is obvious that an employee can strike without having done any of the preparatory acts that amount to organising the strike. A person “takes” industrial action when they do acts or make omissions that fall within the meaning of “industrial action” in the Dictionary of the Act. The term “industrial action” does not extend to a direction to strike or the organisation of a strike: PSA v Industrial Relations Secretary [2018] at 788 [116] (Bathurt CJ with whom Gleeson and Simpson JJA agreed). “Industrial action” does not include the organisation of such action, or the circumstance where such action is merely threatened, impending or probable: see Australian Manufacturing Workers’ Union v McCain Foods (Aust) Pty Ltd (2021) 310 IR 1; [2021] FWCFB 4808 at 12 [37] (Hatcher and Catanzariti VPP, with whom Colman DP agreed).

Furthermore, the written submissions of the prosecutor at [45] states that pleaded contravention J occurred over 7 days. That length is not stated in the pleading in the Amended Summons. The particulars state that the actual strike was on 31 March 2022. It can only be assumed that the prosecutor relies on the creation of Facebook events between 25 and 31 March 2022 to establish that the length of the contravention was 7 days. In my view, that is not open because the making of Facebook events that promote a strike cannot amount to taking industrial action.

The defendant was correct to draw attention to the fact that the pleaded case was that the defendant took industrial action. It must be emphasised that the pleaded contravention was not that the defendant organised the industrial action or that it otherwise induced, aided or encouraged it. It is the prosecutor’s pleaded case that created the discussion regarding legal issue as to whether a union can take industrial action.

I am of the view that the particulars under pleaded contravention J could establish that the defendant breached the March Orders against organising industrial action. But none of the particulars set out by the prosecutor can amount to the defendant failing to refrain from taking industrial action. The particulars are not on all fours with how the prosecutor argued her case in the hearing or in the further note. In contrast to the submissions of the prosecutor at the hearing, the particulars do not state that members of the defendant engaged in a strike and that their actions are attributable to the defendant. Of course, the parties may expand on particulars orally to overcome a pleading issue but, here, there is a fundamental disconnect between what is particularised and the pleaded contravention itself and the oral submissions did not seek to amend the pleadings and particulars.

Without the consent of the defendant, the prosecutor is not permitted to change or add to her particulars in oral submissions at the hearing. In my view, the particulars listed in [16] of the Amended Summons are not capable of establishing pleaded contravention J. Thus, pleaded contravention J must be dismissed under s 139(3)(a) of the Act.

It is, therefore, strictly unnecessary to resolve the heavily contested issue of whether a union, like the defendant, can “take” industrial action and be in breach of a dispute order that they “refrain from taking industrial action”. The research notes from the parties did not delve in any great detail to the complex issues raised by this question or any historical industrial authorities. The following should be taken as a preliminary, but not concluded, view on this important issue.

I begin by considering what a trade union is and its role in the industrial relations system of this State. It must be remembered that trade unions are organisations whose membership is derived from employees who have grouped together and may agree to take collective action. In FEFAA v Broken Hill, Barton J stated at 418:

O’Connor J stated at 437-438 that:

Unions are bodies whose primary purpose is to seek to protect and advance the interests of their members as employees: Williams v Hursey (1959) 103 CLR 30 at 68 (Fullagar J). His Honour in that case captured (at 57) the role of trade unions in the industrial context:

Although an industrial organisation, like the Association, is a corporation brought into existence by the process of registration and it ceases to exist if and when it is deregistered (in a corporate sense), it must be remembered, at a more fundamental level, that trade unions strictly need not be registered. A union is and remains, at its very core, a voluntarily formed, organised group of workers whose bundle of relationships may exist outside of or behind its corporate status: see generally Federated Ironmakers Association v Commonwealth (1951) 84 CLR 265 at 283 (Dixon, McTiernan, Williams, Webb, Fullagar and Kitto J, as Dixon CJ then was); Wheatley v Federated Ironworkers Association (1959) 60 SR (NSW) 161 at 180; (1959) 76 WN (NSW) 727 at 742 (Walsh J). It is in this respect that Isaacs J explained in Australian Commonwealth Shipping Board v Federated Seamen's Union of A/asia (1925) 35 CLR 462 at 475 that:

In Moore v Doyle (1969) 15 FLR 59, the Full Court of the Commonwealth Industrial Court summarised the relevant authorities and held that a New South Wales registered trade and industrial union is a separate legal entity with a legal personality of its own distinct from its members at any particular time. This remains the case today. Spicer CJ, Smithers and Kerr JJ stated at 116:

Two matters follow from this analysis. The first is to recognise the unique role and benefits that flow from corporate personality being superimposed on a union in the system of industrial relations in this State. The second is that an incorporated union can act through their officers and members.

Turning to the first matter. Upon registration of a union as an industrial organisation of employees, it becomes a body corporate, “has perpetual succession”, “has power to purchase, take on lease, hold, sell, lease, mortgage, exchange and otherwise own, possess and deal with any real or personal property” and “may sue or be sued in its registered name”: s 222 of the Act.

The purpose of incorporating a union and giving it a separate legal identity is to equip the union to be an efficient performer in this State’s industrial relations system of conciliation and arbitration. Professor Edward I Sykes explained that this is also desirable in bringing about other incidental benefits (‘The Hursey Case: Part 1; The Trade Union Aspect’ (1960) 33 Australian Law Journal at page 432):

The participation by unions is critical to a system of conciliation and arbitration like the one that has existed in NSW for over 120 years and also existed in the Commonwealth too in the 20th century. Higgins J, who was the second President of the Commonwealth Court of Conciliation and Arbitration, wrote extra-curially (HB Higgins, A New Province for Law and Order (Constable, 1922) at page 15) that:

In Australian Tramway Employees' Association v Prahran & Malvern Tramway Trust (Union Badge Case) (1913) 17 CLR 680, Isaacs and Rich JJ (as Isaacs CJ then was) stated at 703-704:

Their Honours stated at 694-695:

In Bluescope Steel Ltd v Australian Workers’ Union, NSW (2004) 137 IR 176; [2004] NSWIRComm 222 (“BlueScope [2004]”), the Full Bench (Wright J, President, Walton J, Vice-President, and Marks J) held (at 191 [40]) that the Act “recognises that a union, as a corporate entity, is the instrument through which the industrial conduct of its members may be regulated”. This observation is critical because, as counsel for the prosecutor correctly stated, the Act does not seek to directly regulate the conduct of employees or union members at an individual level. Instead, it conceives of the union as the body in which its members are regulated. This is clearly seen by the fact that individual employees or members do not have standing to notify an industrial dispute to the Commission under s 130 of the Act but an industrial organisation of employees does.

I pause to note that this analysis does not seek to trespass into the area of enterprise agreement making in many modern industrial statutes which recognises non-union participation in such schemes.

All the species of “industrial action” in the definition of that expression in the Dictionary to the Act must be taken “in connection with an industrial dispute”. The link between industrial action and industrial dispute draws attention to the Commission’s conciliation and arbitration powers in Ch 3 of the Act. Where the industrial action is in the form of a strike by employees, the role of unions as an organisation of employees with the requisite standing to notify industrial disputes and participate in the Commission’s processes becomes particularly significant. It can be inferred that the Act envisages that the union would be acting for and representing its members in the conciliation and arbitration of the industrial dispute in which its members are taking or threatening to take, in support of claims that may be the subject of conciliation or arbitration.

Because of the fact that the Act directly regulates the conduct of the union, it must be the case that the orders, directions and recommendations made by the Commission can be directed towards the union. As Bathurst CJ made clear in PSA v Industrial Relations Secretary [2018], a dispute order under s 137(1)(a) of the Act can be made against a union. This was also explained in BlueScope [2004]. The Full Bench (Wright J, President, Walton J, Vice-President, and Marks J) stated at 190-191 [37]-[38]:

It is also clear that the consequences for a contravention of a dispute order are directed towards unions and employers. When one considers the list of items in s 139(3) of the Act, it is clear that none of those items can be directed to individual employees or members of a union. Individual employees are not parties to an enterprise agreement or industrial instrument. Importantly, as set out above, penalties cannot be imposed against individual employees but can be directed against industrial organisations.

If Mr Boncardo’s submission that unions cannot take industrial action in the form of a strike (and that only employees can) is accepted, then it seems likely to produce the rather curious result that a contravention by employees of an order made under s 137(1)(a) of the Act “to cease or refrain from taking industrial action” can never be punished or penalised. It would create an immunity of sorts for such contraventions. I doubt that the Parliament intended to create that result given the place of industrial action in a system of conciliation and arbitration.

In expressing these preliminary views excited by submissions (albeit briefly) made in the light of Education Secretary v AEU [2022], I am mindful of the fact that a direction under s 136(1)(a) of the Act can have coercive force and that a failure to comply with a direction can give rise to proceedings for contempt of the Commission under s 180 of the Act: Public Service Association and Professional Officers’ Association Amalgamated Union of NSW South Wales v Secretary for Industrial Relations [2018] NSWIRComm 1061 at [86] (Chief Commissioner Kite SC, Commissioners Murphy and Seymour). But there is a large question as to whether the power in s 136(1)(a) of the Act extends to making a direction to cease and refrain from taking industrial action when a dispute order can be made under ss 136(1)(c) and 137(1)(a) of the Act with that effect. There is also a large question as to whether there could be a charge of contempt when Parliament has made a considered judgment in s 139(3) of the Act about financial penalties and other remedies for a breach of an order to cease or refrain from taking industrial action: Industrial Relations Secretary v PSA [2017] at 731 [39] (Fagan J).

Turning next to the second matter. A union that is a registered industrial organisation under the Act may have a corporate status or “shell” but it must always be remembered that a union is an organised collective group of workers: see R v Cawthorne; Ex parte Federated Clerks Union of Australia (South Australia Branch) (1979) 22 SASR 433 at 436 (King CJ); E I Sykes and H J Glasbeek, Labour Law in Australia (Butterworths, 1972) at page 702.

Like a corporation, a union must act through its officers, employees and members by giving a natural person authority to act on its behalf. The corollary is that the union can be liable in law for conduct that it authorises, directs, ratifies or takes the benefit of. In Rowe v Transport Workers' Union of Australia (1998) 90 FCR 95, Cooper J at 111-113 held:

This is consistent with the observation of Boland J (as his Honour then was) in BlueScope v AWU [2005] NSWIRComm 99 at [91] which

This notion is reinforced by the statements in the High Court’s decision in Burwood Cinema Limited and Others v The Australian Theatrical and Amusement Employees’ Association (1925) 35 CLR 528 (“Burwood Cinema”). Starke J explained that a union stands in the place of its members, not as a mere agent but is a principal that acts on their account. His Honour stated at 551 that:

Isaacs J (as his Honour then was) stated at 540 that:

An application of the views of Isaacs and Starke JJ in the context of a union “taking” industrial action can be seen in Construction, Forestry, Mining and Energy Union v Clarke (2006) 149 IR 224; [2006] FCA 245 (“CFMEU v Clarke”). At 236 [60]-[62], Nicholson J stated:

Isaacs J (as his Honour then was) in Burwood Cinema explained that regulation of industrial organisations, as distinct from individual employees and employers, is an “essential condition” to achieving industrial peace. This emphasises the centrality of unions in a system of conciliation and arbitration. At 541, his Honour stated:

The views of Isaacs and Starke JJ in Burwood Cinema were also supported by Powers J. His Honour emphasised that the role of unions in a system of conciliation and arbitration means that it is more than a mere agent or nominal claimant. For the proper role of a union in a system where a system of arbitration plays a central role in resolving industrial dispute, a union should be liable to a penalty for a strike. Powers J stated at 544-545 as follows:

There is great similarity between the Commonwealth Conciliation and Arbitration Act 1904 (Cth) (repealed) (“CCA Act”) and the NSW Act. Like the CCA Act, the NSW Act recognises unions as a key industrial participant; one of its objects is “to encourage participation in industrial relations by representative bodies of employees and employers” (s 3(d)); and, devotes Ch 5 of the Act to the constitution, responsible management and democratic control of industrial organisation. It is also clear that, where there is a dispute between employers and employees, the union is a party, and the only party, that can notify the Commission (s 130(1)) and settle the dispute or any part of it with the employer. (There have been some decisions where the issue of the rights of employees in industrial dispute proceedings have been discussed but they do not alter the core of this proposition: see Monk v Dow Corning Australia Pty Ltd [1984] 2 NSWLR 485 (Fisher P, Cahill J, as his Honour then was, and Watson J); The Director-General, NSW Department of Health, in respect of the Hunter New England Area Health Service and Australian Medical Association (NSW) Limited (2008) 182 IR 353; [2008] NSWIRComm 112 at 371-372 [64]-[67] (Walton J, Vice-President, Schmidt and Staff JJ)) Under the Act, a union is also empowered to be a party to awards, enterprise agreements and other industrial instruments on behalf of its members and employees. A union is also bound by the award and can be made liable for breaching the award.

The passage from Powers J referred to s 6(1) of the CCA Act, which provided:

It is noteworthy that s 6(1) related to a lock-out or strike in relation to any industrial dispute. The legislation was amended to add s 6A which related to a lock-out or strike in relation to an industrial dispute settled by a Federal award. The legislative purpose of ss 6 and 6A was to promote the system of conciliation and arbitration that had been established in the CCA Act. As Isaacs J (as his Honour then was) said in Walsh v Sainsbury (1926) 36 CLR 464 at 475:

The reference to “disputants” in that passage could not have referred to individual employees or members of a union because those persons could not “bring their quarrels” to the Commonwealth Court of Conciliation and Arbitration: CCA Act s 19(b). The term “disputants” could only, insofar that it relates to disputes involving employees, have been a reference to unions.

In Stemp v AGM, a challenge was made to the validity of s 6 of the CCA Act. The majority (Barton ACJ, Isaacs, Higgins and Powers JJ, as Isaacs CJ then was) held that the provision was valid. Higgins J explained that the CCA Act needed to prevent industrial action to protect the system of conciliation and arbitration established by that Act. At 243, his Honour stated as follows:

In the early years of Federation, many unions incurred penalties under ss 6 and 6A of the CCA Act for strikes that were taken by their members. Those unions would regularly bring appeals on various grounds and unions also challenged the constitutional validity of those provisions, including whether they exceeded the power of the Commonwealth Parliament under s 51(xxxv) of the Commonwealth Constitution. Much ink was spilt on these appeals and constitutional challenges in the Commonwealth Law Reports, including Metropolitan Coal Co of Sydney Ltd v Australian Coal & Shale Employees' Federation (1917) 24 CLR 85; Waddell v Australian Workers' Union (1922) 30 CLR 570; and Metropolitan Gas Co v Federated Gas Employees' Industrial Union (1925) 35 CLR 449. But if the defendant’s submission were to be accepted, the words “or organization” in those provisions were mere surplusage because a union cannot do anything in the nature of a strike or continue a strike. Those cases could have been resolved much quicker.

There has been consideration by the former Industrial Court on whether a union can legally take industrial action. In BlueScope [2004], the Full Bench explained that the corporate status of unions, the role prescribed for them under the Act and the fact that a union is a party to an industrial dispute and therefore at its centre, meant that the union can be “responsible for the industrial action in question (by its direction and control) or the coordinating entity for its fulfilment (in the sense of convening meetings and being the centrepiece of the transmission of information and consideration of any action to be taken by the union’s members)”: at 191 [41] (Wright J, President, Walton J, Vice-President, and Marks J).

The Full Bench also referred to a decision of Hungerford J in Public Employment Office v The NSW Fire Brigade Employees Union [1999] NSWIRComm 556. His Honour, in that case, made orders under s 137 of the Act directing the union to cease all industrial action by a certain time and further directing that the union and its members refrain from taking industrial action during a specified time frame. The Full Bench considered that his Honour was entitled to make the orders he did: at 192 [44].

Further, in NUW v TNT, the Full Bench considered that orders made by Schmidt J against the NUW "requiring it to cease all industrial action against TNT" was an order that was "regularly made". The Full Bench in BlueScope [2004] affirmed this decision.

Counsel for the prosecutor relied on the Full Bench’s decision in BlueScope [2004] at [40] in aid of her submissions. However, counsel for the defendant in his reply note accused the prosecutor of citing that decision “a-contextually and selectively”. Mr Boncardo stated that BlueScope [2004] “did not concern whether an industrial association could itself take industrial action”. This is not correct. The Full Bench was dealing with the “narrow” or “strict” interpretation of s 137(1)(a) of the Act which had been adopted by Haylen J in BHP v AWU [2003] NSWIRComm 423. In making arguments about the correctness of that decision, the appellant made submissions at 188 [24] as to whether there can be a “basis for ever making a dispute order against a union to refrain from engaging in industrial action”. In resolving this issue, it was necessary to then resolve whether ancillary dispute orders can be made requiring an industrial association to take all reasonable steps to ensure compliance with dispute orders requiring the cessation of industrial action. When one reads BlueScope [2004] properly and as a whole, submission by counsel for the defendant should not be accepted

This issue arose again in both BHP Steel (AIS) Pty Ltd (now known as BlueScope Steel (AIS) Pty Ltd) and The Australian Workers' Union, NSW [2006] NSWIRComm 263 and Bluescope Steel (AIS) Pty Ltd v Australian Workers' Union, New South Wales [2006] NSWIRComm 274, which were contravention proceedings under s 139 of the Act.

In the first case, counsel for the AWU, Mr Adam Searle, submitted that the authorities support the proposition the union can only be held liable in accordance with the relevant union rules for the acts of its delegates and members when the facts establish the union authorised their acts: at [23]. Kavanagh J surveyed the authorities and concluded that an act by members of the union can be held to be the act of the union provided that it was authorised under the Rules of the Australian Workers' Union, New South Wales for the acts of its members to be held as acts of the AWU: at [30].

In the second case, it was clear that members of the AWU engaged in industrial action but counsel for the AWU, Mr Adam Hatcher (as the Vice President then was), challenged the proposition that the AWU per se could engage in industrial action and submitted that it would only be in rare circumstances that an officer of a union could be regarded as engaging in industrial action: at [32]. Boland J, as his Honour then was, followed BlueScope [2004] and found that an order requiring the AWU to cease and refrain from taking industrial action was a valid order: at [37]. His Honour found that the AWU and its members did not cease and refrain from taking industrial action and that the union, its officers and its members employed contravened the dispute orders: at [48].

In both cases, the Court held that, where members of a union take industrial action, the acts of those members can be held to be acts of the union such that the union is also taking industrial action.

The emphasis placed by Kavanagh J on the rules of the union are obviously directed to the issues that arise when there are “wild-cat” strikes. This does not detract that strikes by members of a union can still be attributed to the union itself. Murphy, Aickin and Wilson JJ observed in R v Bowen; Ex parte Amalgamated Metal Workers' and Shipwrights' Union (1980) 144 CLR 462 at 479-480 that:

This is consistent with the observations of the High Court in The Waterside Workers’ Federation of Australia v Burgess Brothers Ltd (1916) 21 CLR 129 (“Waterside Workers”) and Commonwealth Steamship Owners' Association v Federated Seamen's Union of A/asia (1923) 33 CLR 297.

In Waterside Workers, the appellant, the Waterside Workers’ Federation of Australia (“WWFA”), was a union of employees registered under the CCA Act. Its rules assumed that its members would belong to a Branch of the organisation and provided that each branch might make rules applicable to itself only that supplement the rules of the organization. Critically, rule 16 of the WWFA’s rules provided that “every branch may conduct its local business and settle its own disputes without interference from the organization”. After members of the Hobart branch of the WWFA engaged in acts in the nature of a strike, the respondent, Burgess Brothers Ltd, brought proceedings against the organisation.

The High Court held that the WWFA was not liable for the strike action done by a Branch without the knowledge of the governing body of the organisation. In reaching that conclusion, the Court appears to accept that, where there is authorisation, the action of members taking strike action can be attributable to the union: at 133-134 (Griffth CJ), 135-136 (Barton J), 137-138 (Isaacs J, as his Honour then was). Griffith CJ stated at 133:

In the defendant’s written submissions, reliance was placed on the decision of Bathurst CJ in PSA v Industrial Relations Secretary [2018]. In that case, the appellant union submitted that order A1 of the dispute orders, to the extent that it purported to order the union to “immediately to cease organising industrial action”, went beyond ordering the appellant to “refrain from taking industrial action” and was not supported by s 137(1)(a) of the Act: at 784 [92]. The appellant advanced a construction of that provision such that, if the industrial action did not occur, there could be no breach of an order directing an organisation to “refrain from taking industrial action”.

Bathurst CJ (with whom Gleeson and Simpson JJA agreed) held that the dispute orders were not dependent on the strike occurring. In his Honour’s consideration, the critical passages concerning the issue of whether a union can legally take industrial action are at 789-790 as follows:

These passages, at first glance, may appear to support the submission of the defendant that a union cannot itself take industrial action. However, these passages must be understood in context. First, it is noteworthy that the summons initiating the matter had not sought relief with respect to the taking of the industrial action itself. Thus, it was not necessary for the Court of Appeal to decide this point.

Secondly, the appellant union had actually conceded that an industrial organisation could take industrial action. At 789 [89], Bathurst CJ stated that “[c]ounsel for the appellant accepted that an industrial organisation giving a direction to its members not to go to work comes within the definition of industrial action, but that an order under s 137(1)(a) that an industrial organisation and its members refrain from taking industrial action would only be contravened when the members complied with the direction”: at 783 [89].

Thirdly and perhaps most critically, Bathurst CJ stated at 789 [118] that “[i]t was not contended that an industrial organisation could be fined simply as a result of its members contravening dispute orders”. This was the underlying basis or submission that the consideration of Bathurst CJ was responding to and it is in this context that his Honour’s consideration must be understood.

It is clear that only employees can engage in the physical act of taking strike action. A strike is a concerted withdrawal of labour or the cessation of work in furtherance of an industrial dispute: see Latham v Singleton [1981] 2 NSWLR 843 at 864 (Nagle CJ at CL); Rookes v Barnard [1964] AC 1129 at 1204 (Lord Devlin); Australian Iron & Steel Ltd v Federated Ironworkers Association [1950] AR (NSW) 629 (Webb, Ferguson and De Baun JJ); McKernan v Fraser (1931) 46 CLR 343 at 361 (Dixon J); FRNSW v FBEU [2013] (Boland J, President, Walton J, Vice-President, and Staff J). A union, as a body corporate, cannot physically withdraw labour or otherwise perform the conduct in para (a)-(c) in the definition of “industrial action”. The prosecutor’s point is that the actions of members of the union can, where authorised, directed or ratified, be attributed to the union because it is the members that form and bring about a trade union.

It is true then that a strike is necessarily “taken” or “put into effect” by employees. For without employees (or members of unions) withdrawing their labour, there is no strike. Of course, a union cannot engage in industrial action by itself. No amount of directions from a union can bring about a strike if no employees comply with it. But once employees who are members of the directing union comply with it and cease working, it can (as counsel for the appellant in PSA v Industrial Relations Secretary [2018] submitted) be attributed to the union. It can then be said that the union (as referring to the organised collective group employees who are its members) is taking industrial action. Respectfully, this notion was not something that Bathurst CJ had excluded in PSA v Industrial Relations Secretary [2018] for the reasons I have given above.

Against this backdrop, or at least without considering the issues raised therein, the submission by counsel for the defendant that Education Secretary v AEU [2022] was “plainly wrong” may at least be somewhat premature, inadequately researched and, upon a proper analysis of that decision, misconceived. In that matter, the defendant union had, subject to the orders being valid, admitted pleaded contravention F that it and their members took industrial action in the form of a 24 hour strike: at [270]. The term of the dispute order which grounded pleaded contravention F was to “refrain from taking industrial action”: see [12] and [31]. The defendant union’s admission was properly made. My consideration at [343]-[344], which counsel for the defendant takes issue with, was about whether pleaded contravention F was a separate contravention or was part of the course of conduct that I had found for pleaded contraventions A to E. I concluded that it formed part of a separate contravention. Contrary to the submission of counsel for the prosecutor, I was not considering with the live question in this case about with whether a union could legally take industrial action in those paragraphs. I did not need to do so because the union had admitted that it failed to refrain from taking industrial action.

A further observation should be made as to submissions of the kind. The expression “plainly wrong”, in relation to a judicial decision, is not one that is used lightly. In Gett v Tabet (2009) 254 ALR 504; [2009] NSWCA 76, Allsop P (as the Chief Justice then was), Beazley and Basten JJA (as Her Excellency then was) stated at 565 [294]:

The judgment in Education Secretary v AEU [2022] at [343]ff is not inconsistent with PSA v Industrial Relations Secretary [2018]. Counsel for the defendant has not made good his submission that Education Secretary v AEU [2022] should be departed from in accordance with the principles in Ming Tian at 336 [38] (Gleeson J).

The defendant drew attention to a number of decisions in the Federal Court that had considered the meaning of “industrial action” in s 19(1) of the Fair Work Act. The definition of “industrial action” in that Act (and its predecessor statutes) is in similar terms to that expression in the Dictionary of the NSW Act. The definitions of that expression in both Acts include the phrase “by employees” or “by an employee”. However, before the introduction of the Workplace Relations Amendment (Work Choices) Act 2005 (Cth) (“Work Choices Act”), the repealed WR Act contained a definition of “industrial action” that did not include the phrases “by employees” or “by an employee”.

In Cahill v Construction, Forestry, Mining and Energy Union (No 2) (2008) 170 FCR 357; [2008] FCA 1292, Kenny J observed that the inclusion of this phrase into the definition of “industrial action” meant that “it became clear in terms that a relevant ‘ban, limitation or restriction on the performance of work’ must be imposed ‘by an employee’”: at 380 [58] (emphasis in original).

Similarly, in Ambulance Victoria v United Voice (2014) 245 IR 375; [2014] FCA 1119, Tracey J said that “the addition of the words ‘by an employee’ in the extant definition confirms that ‘industrial action’ as defined in s 19(1)(b) of the Fair Work Act is ‘so confined’”: at 382 [22].

Both of those single Judge decisions were affirmed by the Full Court in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298; [2015] FCAFC 25. Logan, Bromberg and Katzmann JJ held at 325 [141] that:

Those cases in the Federal Court does weigh against the notion that a union can legally take industrial action. However, it does not appear from the law reports that the single Judges or the Full Court in those cases had considered the issue of attributing the conduct of employees who were members of a union to that particular union.

Indeed, before the amendment by the Work Choices Act, the Full Court of the Federal Court had observed “that para (c) [the equivalent of s 19(1)(b) of the Fair Work Act] in its entirety is directed to the conduct of employees who engage in conduct limiting the work they do or the circumstances in which they offer to do it”: Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (1998) 89 FCR 200 at 213 (Spender, Moore and Branson JJ). Notwithstanding the fact that the acts were done by employees, there were decisions of the Federal Court recognising that the conduct of employees who were union members can attributable to their union: see, eg, CFMEU v Clarke at 236 [60]-[62]; Skilled Engineering Limited v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2001) 108 IR 116; [2001] FCA 1397 at 116 [2] (Finkelstein J).

The written submissions of the defendant also referred to Transport Workers Union of NSW v Australian Industrial Relations Commission (2008) 166 FCR 108; [2008] FCAFC 26. In that case, the Full Court of the Federal Court was hearing an application for judicial review of the decision of the Full Bench of the Australian Industrial Relations Commission in Transport Workers’ Union of New South Wales v TNT Australia Pty Ltd (2006) 154 IR 256. The Full Bench had held at 260 [14] that an order that unprotected industrial action should stop, not occur and not be organised could be directed to a union pursuant to s 496(1) of the WR Act. Giudice J, President, Hamilton DP and Hingley C stated:

In the Full Court, Gray and North JJ held that the kind of industrial action to which s 496(1) of the WR Act is directed is not industrial action that a union can engage in by itself: at 122 [22]. However, their Honours did not, nor did the Court need to, consider issues of attributing the conduct of members to the union because s 4(5) of the WR Act provided a deeming provision such that their Honours found that “an order that industrial action that is happening stop might be made against a union, on the basis that industrial action by employees, or an employer, amounts to engaging in conduct”: at 122 [23].

As mentioned, because I am of the view that the pleadings of the prosecutor are deficient, it is not necessary to fully resolve this question. So much of the foregoing analysis was not captured or even barely canvassed in the research notes of the parties or their earlier submissions. There is a rich history of industrial law in this State and the Commonwealth that has considered or touched upon this question. As I emphasised above, the view given is only a preliminary one. This important question must be left for another day after the benefit of full argument.

For the reasons set out above, I find that the particulars (other than those with strikethrough) of pleaded contraventions C to I on the Amended Summons establish breaches of the March Orders. The next issue to consider is the number of actual, as distinct from pleaded, contraventions.

The “course of conduct” or “one transaction” principle is a sentencing principle the object of which is to guide a judicial officer in the proper exercise of the sentencing discretion. Whilst articulated in a criminal context it is well-settled that this analysis applies in civil penalty proceedings: Education Secretary v AEU [2022] at [331] (Walton J), citing Construction, Forestry, Mining and Energy Union v Williams (2009) 191 IR 445; [2009] FCAFC 171; Construction, Forestry, Mining and Energy Union v Cahill (2010) 194 IR 461; [2010] FCAFC 39 (“Cahill”); Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Nine Brisbane Sites Appeal) (2019) 269 FCR 262; [2019] FCAFC 59; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Registered Organisations Commissioner (2020) 283 FCR 404; [2020] FCAFC 232.

The common law course of conduct principle was distilled by Owen JA in Royer v Western Australia (2009) 197 A Crim R 319; [2009] WASCA 139 at 328 [22]:

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

The principle was explained by Middleton and Gordon JJ in Cahill at 473 [39] as follows:

In Australian Competition and Consumer Commission v Hillside (Australia New Media) Pty Ltd (t/as Bet365) (No 2) [2016] FCA 698, Beach J stated at [25]:

In Australian Workers' Union, New South Wales v Bluescope Steel (AIS) Pty Limited (2006) 151 IR 153; [2006] NSWIRComm 71 (“AWU v BlueScope [2006]”), the Full Bench (Wright J, President, Walton J Vice-President, and Marks J) held that the primary judge at first instance made two errors in his approach to the assessment of penalties in two respects. The Full Bench held at 170 [68]:

The Full Bench held that separate paragraphs, or separate obligations, in a dispute order should not be treated as separate orders for the purposes of the statutory maxima prescribed in s 139(4)(a) of the Act. The Full Bench stated at 169 [61]:

The Full Bench held at 170 [64]-[65]:

In Education Secretary v AEU [2022], I reviewed the decision of the Full Bench and made the following observations at [298]:

In PSA v Industrial Relations Secretary [2018], Bathurst CJ (with whom Gleeson and Simpson JJA agreed) 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 strike as follows. His Honour stated at 794 [149]:

In my view, there is a legal and factual relationship between pleaded contraventions C to I in these proceedings such that the conduct amounted to one course of conduct and thus one contravention.

There was a legal relationship because the contraventions stemmed from the same orders made by the Commission.

There was a factual relationship too. The prosecutor was correct to point out that PSA v Industrial Relations Secretary [2018] involved identical conduct each day. But I do not accept that the course of conduct principle applies only where there is identical conduct. The focus in the authorities cited above are to the quality or character of the dispute orders and the acts of the defendant.

Although it has been suggested that each Branch conducted their own meetings and votes, and there was some variation as to the length of the strike between the different locations, it is plain from all the evidence that each Branch and each notice to the prosecutor was through a coordinated effort to strike for a 24-hour period between 7:00am on 31 March 2022 to 7:00am on 1 April 2022. The evidence shows that the actions by the defendant, its officers, employees and members was geared towards that coordinated strike action.

It could not be said that each Branch or member of the defendant was acting alone with a separate “mind”. The defendant was acting as one when it organised the industrial action. I take on judicial notice that organising an effective mass strike generally requires a concerted effort by numerous individuals and over a period of time.

Although the notices were sent on different days by different officers and members of the defendant, this does not detract from the fact that each notice was interlinked, directed at the same person (that is, the Secretary or her representatives) and were directed to the same end – to organise and facilitate industrial action.

It follows, in my view, that the approach adopted by Bathurst CJ in PSA v Industrial Relations Secretary [2018] at 794 [149] should be applied with respect to contraventions of orders A1 and A2 in pleaded contraventions C to I. There was a single contravention of the dispute orders made in that respect by the Commission requiring, in general terms, the defendant to cease organising and continuing to induce, authorise, direct or encourage the strike scheduled for 31 March 2022.

Section 139(4)(a) of the Act envisages a contravention occurring on more than one day. Here there was a single course of conduct which occurred over a period of 7 days corresponding with the actions or conduct in pleaded contraventions C to I.

In light of my conclusion that the February Orders were not legally valid, it is unnecessary to decide whether Contraventions A and B are made out. Had it been necessary to decide, I would have made the following findings.

The defendant’s acceptance that the particulars under pleaded contravention A establish breaches of the February Orders, on the assumption that the order was valid, was properly made. I am satisfied that each of the particulars (other than those with strikethrough) amounted to organising industrial action or inducing, advising, supporting, encouraging, directing, aiding or abetting members of the defendant to organise or take industrial action in breach of orders A1 and A2 of the February Orders.

The particulars of pleaded contravention B state that, on 15 February 2022, a strike and multiple rallies occurred across the State “which was organised by the Defendant” and that the defendant caused multiple posts, video clips and photos to be published on Facebook. It follows from my conclusion relating to pleaded contravention J that I am also satisfied that the particulars under pleaded contravention B can not establish that the defendant breached order A1 of the February Orders by failing to refrain from taking industrial action.

If I am wrong and the February Orders were legally valid, I would find that pleaded contravention A establishes a contravention of those dispute orders which occurred over 2 days.

The prosecutor submitted that the contraventions were undertaken in blatant and deliberate defiance of the dispute orders made by the Commission. The executive of the defendant took a conscious decision in the face of the dispute orders to proceed with the strikes. The conduct of the defendant was not passive (cf PSA v Industrial Relations Secretary [2018] at 794-795 [155]) in the sense that its messages to its members, media outlets and Facebook posts was that the strike will go on and encouraged its members to strike in the face of the dispute orders.

As to the impact of the strikes, the prosecutor relied on the following evidence:

The prosecutor drew the Court’s attention to the High Court’s recent decision in Pattinson. Counsel for the prosecutor submitted that Pattinson is authority for the proposition that the conduct does not need to be of the worst kind in order for this Court to impose a “high range” penalty. In determining the appropriate penalty, this Court needs to strike a balance “between not being oppressively severe and ensuring that the penalty such [that] it deters future noncompliant or contraventions, [and] both specific and general deterrence”.

The prosecutor emphasised that general deterrence is of particular importance in cases where dispute orders made by the Commission are disregarded in knowing and deliberate defiance. If the Commission’s authority is to be upheld, then participants in the industrial relations system who gain the benefits of that system must face a sufficient deterrent against simply disregarding orders which are lawfully made.

The prosecutor also submitted that there is the need for specific deterrence. The evidence shows that the defendant is ready and willing to press ahead with industrial action despite dispute orders made by the Commission to achieve their purposes. It has also given no sign it will refrain in the future from contravening dispute orders. The defendant has not expressed remorse or contrition. There are no other features which would reduce the penalty, such as the dispute no longer being live, or the union’s executive being instrumental in settlement of the dispute.

The prosecutor submitted that the contraventions for organising fall “at least in the middle range of seriousness” and the contraventions for “actually engaging in the strike itself” should be at the “high end of seriousness and should attract close to the maximum penalty”.

In relation to the defendant’s lack of prior contravening conduct, counsel for the prosecutor submitted that that very factor is already taken into account in terms of s 139(4) of the Act because that provision provides an increased maximum penalty if there had been contraventions of earlier dispute orders. Thus, the lack of past contravening conduct is “already built-in” into the maximum penalty that can be imposed. Therefore, the absence of a prior record is not a factor in mitigation but rather “it's the absence of a matter in aggravation”.

The written submissions of the prosecutor included a table setting out the “minimum appropriate penalty” for each pleaded contravention. The prosecutor’s table was on the assumption that each pleaded contravention was a separate contravention. The total amount for the “minimum appropriate penalty” was $85,000. The prosecutor submitted that “after having regard to the principle of totality, the appropriate penalty should be, at a minimum, in the range of $60,000 - $70,000”.

Given that I have found that only pleaded contraventions C to I are established, on the prosecutor’s case, the total amount for the “minimum appropriate penalty” for those contraventions was $35,000.

The defendant submitted that the each of the strikes on 15 February and 31 March 2022 was of relatively short duration (24 hours) and was scheduled in advance, permitting contingencies to be arranged and implemented. This is not a case in which a union sprung industrial action upon an employer to cause maximum disruption and damage. The instant case is not in the worst category of case of contravention of a dispute order is likely to involve lengthy industrial action or action of a wildcat nature taken on each day the dispute order is in force and designed to inflict maximum damage on, or disruption to, the operations of government.

The defendant relied on a communication published by the Secretary that the strike action “caused minor disruptions and delays”. It was accepted that the strikes caused a level of inconvenience and disruption. Given the protracted period the defendant submitted that the prosecutor had time to plan for it and was able to be effectively managed. There was some 11 days’ notice of the 15 February 2022 strike and some 14 days’ notice of the 31 March 2022 strike. The defendant contended that it was not available for the prosecutor to contend that the strikes caused the community, patients and staff to be at risk.

The defendant sought to expose weaknesses in the prosecutor’s evidence. Counsel for the defendant noted that there is no evidence as to the number of nurses or midwives who participated in the strike, except in relation to the John Hunter Hospital on 15 February 2022; that the prosecutor’s evidence of disruption related only to John Hunter and Westmead Hospitals; and, there is no evidence that the health of any particular patient or patients were put at risk.

The defendant accepted that it consciously disobeyed the Commission’s orders to cease organising the strikes. However, the defendant submitted that any contravention of a dispute order is likely to be deliberate and will almost invariably be conscious. It was contended that Parliament can be assumed to have taken this into account when setting the maximum penalties and cannot have intended all cases where there were deliberate contraventions to be in the worst category.

The defendant submitted that Pattinson, when read properly, requires a focus on the particular kind of contravention and the need for a deterrent penalty is shaped by the particular contravention. Counsel for the defendant submitted that the Association is not a contravener akin to the CFMMEU and the conduct in this case were “uncharacteristic aberrations which were the product of a particular situation and the circumstances experienced by nurses and midwives presently and following the COVID-19 pandemic”.

The defendant has never breached a dispute order before and the contraventions are an “uncharacteristic aberration” in the “extensive and unblemished history of compliance” by the Association. Counsel stated that the defendant had a 91 year history of “impeccable industrial behaviour” and “unimpeachable industrial conduct”. The defendant accepted that some weight should be given to specific and general deterrence but it must be small at most.

Overall, the defendant submitted that penalties for the contraventions should be at the lower end of the range.

The argument advanced by counsel for the defendant – that any contravention of a dispute order was likely to be deliberate and that Parliament can be assumed to have taken that into account in assessing the maximum penalty – was also made by the appellant in PSA v Industrial Relations Secretary [2018] at 792 [138].

In that case, Bathurst CJ (with whom Gleeson and Simpson JJA agreed) emphasised that, whilst it is true that most contraventions will be deliberate, this does not detract from consideration of the facts of each case. Bathurst CJ noted that the appellant union’s bulletin had publicly indicated its intention to ignore the dispute orders by being prepared to “cop a fine”, urged its members to strike in the face of the dispute orders, and continually failed to take down the Flyer and the Bulletin after Industrial Relations Secretary v PSA [2017] was delivered.

A similar argument was also advanced in Education Secretary v AEU [2022] at [362]. At [363]-[364], I explained:

In my view, not every contravention of a dispute order is necessarily a deliberate one. Deliberateness or intention is not an element of a contravention and an honest and reasonable mistake of fact is not a defence to an alleged contravention. BlueScope (No 3) [2006], which is set out above, is an example where a union had contravened the orders but had a genuine and honest belief that dispute orders did not apply to the industrial action that it undertook. Boland J (as his Honour then was) nevertheless found that there was a contravention and proceeded to dismiss the matter under s 139(3)(a) of the Act given the circumstances.

I respectfully agree with Bathurst CJ that most contraventions would be deliberate. Industrial organisations and employers are generally sophisticated industrial participants who would understand that the making of a dispute order is a serious step and are bound to take it seriously: Director-General, NSW Department of Education and Training v NSW Teachers Federation [2010] NSWIRComm 44 at [37(d)] (Staff J) (“Education Director-General v NSWTF [2010] NSWIRComm 44”).

In my view, not all cases of deliberate contraventions should attract the maximum penalty. That much is clear from BlueScope (No 2) [2005], PSA v Industrial Relations Secretary [2018] and Education Secretary v AEU [2022] where the relevant unions were found to have deliberately contravened the orders. As I explained in Education Secretary v AEU [2022] at [364], deliberateness is one relevant factor but it is important that this Court does not lose sight of the range of conduct that could be regulated by a dispute order ranges from a wild-cat action on one end and conduct which is wanton, encouraging open defiance of the Commission’s orders and deliberately designed to inflict the maximum possible hardship on the other end.

Before turning to the relevant factors, I will consider the myriad of issues raised by the parties. The first issue how this Court should apply the High Court’s decision of Pattinson which was delivered earlier this year after Education Secretary v AEU [2022] was handed down.

The first respondent, Mr Pattinson, wore many hats. He was an employee of Multiplex Constructions Pty Ltd, an officer of the Construction, Forestry, Maritime, Mining and Energy Union (“CFMMEU”) and its delegate on its building site in Frankston, Victoria.

Mr Pattinson followed the union’s “no ticket, no start” policy and misrepresented to two non-union employees of a subcontractor that in order to do their work at the site they had to become members of the union. Those actions twice contravened s 349(1) of the Fair Work Act. As he acted in his capacity as delegate, the CFMMEU contravened that provision too: Fair Work Act s 363.

The Australian Building and Construction Commissioner brought civil penalty proceedings in the Federal Court. Pursuant to s 546 of the Fair Work Act, Snaden J imposed a penalty of $6000 on the delegate (or $3000 for each contravention). Having regard to the union’s longstanding history of breaches of the Fair Work Act in furtherance of the “no ticket, no start” policy, the Court imposed on the CFMMEU a single maximum penalty of $63,000 for such breaches (or $31,500 for each contravention): see Australian Building and Construction Commissioner v Pattinson (2019) 291 IR 286; [2019] FCA 1654 at 316-317 [115]-[118], 319 [128].

The Full Court of the Federal Court allowed an appeal brought by Mr Pattinson and the union. The Full Court held that the history of the CFMMEU’s prior contraventions and the deterrent purpose of s 546 did not warrant the imposition of a penalty that was disproportionate to the nature, gravity and seriousness of the circumstances of the instant contraventions: Pattinson v Australian Building and Construction Commissioner (2020) 282 FCR 580; [2020] FCAFC 177 at 642-643 [180]-[181] (Allsop CJ, White and Wigney JJ, with whom Besanko and Bromwich JJ agreed) (“Pattinson (FCAFC)”).

The Full Court endorsed a view that the “maximum penalty is reserved for contraventions falling within the worst category of cases for which that penalty is prescribed” and that “a case is not in the worst category merely by reason that the contravener has a history of prior contraventions, although that history may assist in the proper characterisation of the instant contravention”: Pattinson (FCAFC) at 636 [160]-[161] (Allsop CJ, White and Wigney JJ), see also 655-656 [227], 656-657 [231] (Besanko and Bromwich JJ). Thus, the Full Court considered that the primary judge had erred in imposing on the CFMMEU what was, in effect, the maximum penalty, which the Full Court considered ought to be reserved for the most serious examples of conduct in contravention of s 349(1) of the Fair Work Act.

The High Court allowed an appeal from the Full Court’s decision. The majority (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ) distinguished between criminal penalties, which import notions of retribution and rehabilitation, and civil penalties, which are imposed primarily, if not solely, for the purpose of deterrence: at 308-309 [15]-[16]. The majority accepted the view that “a civil penalty…must be fixed with a view to ensuring that the penalty is not such as to be regarded by [the] offender or others as an acceptable cost of doing business”: at 309 [17].

The majority held that the notion of proportionality in criminal law – that a sentence should neither exceed nor be less than the gravity of the crime having regard to the objective circumstances (R v Scott [2005] NSWCCA 152 at [15] (Howie J, with whom Grove and Barr JJ agreed); R v Rayment (2010) 200 A Crim R 48; [2010] NSWCCA 85 at 69 [110] (Johnson J), 79 [156] (Rothman J)) – is not applicable in the civil penalty context because retribution has no part to play: Pattinson at 315 [38]-[39].

The majority stated at 316 [40]-[41] that:

The majority recognised that some concepts familiar from criminal sentencing, such as totality, parity and course of conduct, may usefully be deployed in the enforcement of the civil penalty regime and assist in the assessment of what may be considered reasonably necessary to deter further contraventions of the Act: at 317 [45].

The majority held that the Full Court erred in treating the statutory maximum as implicitly requiring that contraventions be graded on a scale of increasing seriousness with the maximum to be reserved exclusively for the worst category of contravening conduct: at 318 [49]. Their Honours stated at 318 [50]:

The holding in Pattinson relating to the purpose and considerations for civil penalties were not limited to civil penalties in the Fair Work Act. The statements of the High Court were recently applied by the Full Court of the Federal Court on civil penalty proceedings for contraventions of the Australian Consumer Law: viagogo AG v Australian Competition and Consumer Commission [2022] FCAFC 87 at [129]-[130] (Yates, Abraham and Cheeseman JJ).

A few observations should be made in relation to Pattinson and its application to proceedings under s 139 of the Act.

First, although the majority’s judgment was expressed broadly, their Honours nevertheless emphasised that their decision based on the features of the Act in that case, that is, the Fair Work Act: see, eg, at 322 [66]. The civil penalty provisions in s 546 of that Act have a “statutory function of securing compliance with provisions of the [statutory] regime”: Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482; [2015] HCA 46 at 495 [24] (French CJ, Kiefel, Bell, Nettle and Gordon JJ, as Kiefel CJ then was) (“Commonwealth v FWBII”). In this respect, the purpose of civil penalties in s 546 of the Fair Work Act and s 139 of the NSW Act are distinguishable. Although securing compliance with orders of the Commission is an important purpose, the latter regime also serves the important purpose of helping to resolve the industrial dispute between the parties and promoting the system of conciliation and arbitration established by the Act.

This can be seen in two respects. The first is in the decision of Fagan J in Industrial Relations Secretary v PSA [2017] when his Honour, after surveying the legislative history of s 139 of the Act, considered the powers of the former Industrial Court and, now, this Court under s 139(3)(f) of the Act to help resolve an industrial dispute. His Honour stated at 731 [37] as follows:

The second is the observation by Haylen J in Bluescope Steel Ltd v The Australian Workers’ Union, New South Wales [2006] NSWIRComm 338 at [40] that it is some relevance to consider whether the industrial dispute continues to be or is no longer a “live issue” that calls for the Court’s intervention to restore industrial order. This was cited approvingly by Staff J in Education Director-General v NSWTF [2010] NSWIRComm 44 at [40]. Staff J observed that, had the parties not settled the industrial dispute in that case, the Court “would have been disposed to impose a significantly higher penalty” to specifically deter further industrial action as a means of dispute resolution: at [41].

Hence, the “theory of s 546 of the [Fair Work Act]” – that “the financial disincentive involved in the imposition of pecuniary penalty will encourage compliance with the law by ensuring that contraventions are viewed by the contravener and others as an economically irrational choice” (at 322 [66]) – is not identical to the “theory” of s 139 of the NSW Act.

As deterrence is not the sole object of s 139 of the Act, it follows that the focus on striking a balance between deterrence and oppressive severity is not entirely apt for determining penalties under s 139(3)(e) of the Act. That is not to say that deterrence is other than an important factor. As I will elaborate further, it remains a strong and significant factor in determining the appropriate penalty. In any case, for the reasons given below, the penalty imposed will apply the full force of general deterrence.

Secondly, there is a tension with the reference to the “cost of doing business” in Pattinson with s 139 of the Act. The concept of the “cost of doing business” is very understandable in the context of competition and consumer law where, for example, the advantage to be gained from engaging in unlawful anti-competitive behaviour or making misleading and deceptive statements can be clearly seen. It can also be discerned in the facts of Pattinson where the union dues collected from the implementation of a “no ticket, no start” policy can be estimated. But it becomes more difficult for a court to calculate the “cost” or gains, in a monetary amount, from organising or taking industrial action in support of a claim for conditions of employment for its members. The prosecutor did not suggest how this should be calculated or considered in these proceedings.

The majority in Pattinson appears to suggest that one needs to look at whether the penalties previously imposed have been taken seriously. It was noted that the CFMMEU’s repeated breaches of the Act is a “compelling indication” that past penalties below the maximum penalty were insufficient to outweigh the benefits flowing from their unlawful conduct: at 316-317 [43]. However, given the rarity of proceedings under s 139 of the NSW Act (this being the third case to reach final disposition since this Court gained the jurisdiction in 2016, and each case has involved a different defendant), it would appear that industrial participants who have been subject to penalties from this Court have taken those penalties seriously.

Nevertheless, the essence of the High Court’s concern, which is to uphold the rule of law, has been reflected in the approach of the former Industrial Court and this Court in proceedings under s 139 of the Act, albeit under a different colour to that in the Fair Work Act. The penalties need to fulfil the function of upholding the industrial relations system set up by the Act and vindicating the authority and integrity of the Commission as an essential component of that legal system. This can be seen in Education Secretary v AEU [2022] at [385] (Walton J), Industrial Relations Secretary v PSA [2017] at 733-734 [49] (Fagan J), and Education Director-General v NSWTF [2000] NSWIRComm 103 at [7] (Marks J). To be clear, a dispute order is a manifestation of the authority of the Commission whose orders, awards and determinations have the force of law. This reflects the will of the Parliament.

Thirdly, in many other ways, the approach of this Court and the former Industrial Court in contravention proceedings is consistent with Pattinson. Deterrence has consistently been held to be a very important feature of the fixing of civil penalties by the Full Bench of the former Industrial Court: BlueScope (No 2) [2005] at 330 [4(5)] (Wright J, President, Walton J, Vice-President, and Marks J).

However, it has also been recognised that the need for deterrence should also be assessed. The majority in Pattinson noted the previous penalties to failed to have any deterrent effect on the CFMMEU and characterised its repeated contraventions as being “steadfastly resistant to previous attempts to enforce compliance by civil penalties fixed at less than the permitted maximum”: at 316 [43]. In those circumstances, the need for general and specific deterrence is very high. On the other end, however, where contraventions of dispute orders are “almost non-existent”, any element for general deterrence can be less: Bluescope Steel (AIS) Ltd v AWU and Anor (No 2) [2005] NSWIRComm 210 at [53] (Boland J, as his Honour then was) (“BlueScope v AWU [2005] NSWIRComm 210”).

Lastly, the majority in Pattinson at 318 [46]-[47] stated:

Notwithstanding the primacy placed on deterrence, the High Court’s reasoning in the passage above took into account factors historically associated with assessing the objective seriousness of the breach. Counsel for the prosecutor accepted that objective seriousness is a relevant factor in determining the appropriate penalty. That concession was appropriate because of the scheme of the Act which emphasises maintaining good industrial relations. This passage also appears to provide support for the proposition that general deterrence may vary in its significance to penalty depending on the circumstances of the case. It remains important and necessary to consider factors such as the history of contraventions and compliance, the nature and extent of the contravening conduct, and whether there has been any remorse.

Counsel for the prosecutor submitted that it is impermissible to consider the defendant’s lack of prior contraventions of dispute orders as a mitigating factor because it is “built-in” into the maximum penalty and considering that factor would amount to double counting. It appears from the prosecutor’s submission that, if there has been no prior contravention of a dispute order, then this can not be a factor in mitigation and the maximum penalty in s 139(4)(a) of the Act applies because the lack of prior contravention is “built-in”. However, if there has been a prior contravention, not only does the maximum penalty in s 139(4)(b) of the Act would apply, but it can also be a factor in aggravation.

That submission only needs to be stated to be rejected. All that s 139(4) of the Act does is set the maximum penalty. It does not create, to borrow a term used in criminal law, a separate “aggravating offence” that has, as an element, a prior contravention of a dispute order. The maximum penalties in s 139(4) of the Act are a mere guidepost or yardstick. It does not amount to double counting or a breach of the rule in R v De Simoni (1981) 147 CLR 383 (assuming that such a rule applies in the civil penalty context) for the defendant’s clean prior record to be considered as a mitigating factor in assessing the appropriate penalty.

As Mason CJ, Brennan, Dawson and Toohey JJ (as Brennan CJ then was) stated in Veen v The Queen (No 2) (1988) 164 CLR 465 (“Veen (No 2)”) at 477, a prior record is relevant in criminal sentencing “to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law”. That principle in Veen (No 2) is of relevance to proceedings under s 139 of the Act because the prior record of an industrial organisation or employer is relevant to the assessment of the likelihood of contravening dispute orders in the future and the subjective features of the contravention.

The past record of the Commission is relevant in determining the appropriate penalty: Public Service Board v NSW Teachers Federation [1969] AR (NSW) 21 (MoKeon, Kelleher and Sheehy JJ) (“PSB v NSWTF”) and the cases cited therein. In Australian Iron & Steel Ltd v Amalgamated Engineering Union [1959] AR (NSW) 329, it was stated that “[a] good record tells in favour of a union. A bad record tells against a union”: at 334 (Richards, McKeon and Kelleher JJ). In proceedings under s 139 of the Act, the culture of the contravener as to compliance or contravention was a relevant factor: Education Secretary v AEU [2022] at [208(7)] (Walton J); see also 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 at [20] (Allsop CJ, White and O’Callaghan JJ).

At the hearing, I raised with counsel for the prosecutor whether I could take judicial notice about the industrial behaviour and record of the defendant in this State. It was stated at the hearing:

An issue that needs to be considered is the extent to which this Court can take judicial notice of matters of common knowledge within the industrial context. Section 144 of the Evidence Act 1995 (NSW) provides:

Historically, the Commission, when that body had the power to deal with an illegal strike under s 100 of the 1940 Act, had the power to call for a report from the Industrial Registrar as to the union’s industrial record: see, eg, PSB v NSWTF. To my knowledge, the power to seek a report has not been utilised by the Commission or the former Industrial Court in recent history, except in the case of deregistration proceedings (see, eg, Re Printing and Allied Trades Employers Association of New South Wales [2014] NSWIC 6 at [2] (Boland AJ)).

The Industrial Court and Commission in Court Session under the 1991 Act and 1996 Act, respectively, were specialist industrial courts “established primarily to deal with matters relating to industrial relations”: Wood v Boral Resources (NSW) Pty Ltd (unreported, Supreme Court of New South Wales, No 4980 of 1992, 28 October 1993) (“Wood v Boral”), cited approvingly in Resarta Pty Ltd v Finemore (2002) 55 NSWLR 320; [2002] NSWCA 250 at 337-338 [75]-[76] (Foster AJA with whom Spigelman CJ and Giles JA agreed); see also Taudevin at 172 [138] (Wright J, President, Walton J, Vice-President, and Hungerford J).

In Wood v Boral, McClelland CJ in Eq noted that the specialised nature of the Industrial Court, the major industrial features of proceedings brought before it, the broad criterion of public interest in the Act and the wide discretionary powers given to that Court required that the Court’s powers be exercised by “members who had specialised knowledge and experience in the area of industrial relations”.

The specialised expertise of the members of the Industrial Court made that Court well-equipped to readily consider the industrial record and conduct of the union or employer. It followed from its creation as a specialist court, of which employers, unions and associations regularly appeared, that the Judges of that Court were well-equipped to take on judicial notice matters of common knowledge in the industrial context. This notion was accepted in Totalisator Agency Board of New South Wales v Casey (1994) 54 IR 354 concerning the Government and Related Employees' Tribunal. Kirby P (as his Honour then was) stated at 357 that:

In R v Industrial Appeals Court; Ex parte Maher [1978] VR 126, it was held that a lay member of the Industrial Appeals Court of Victoria is entitled to draw on their industrial experience to understand the arguments and matters before the Court: at 143 (Starke, McInerney and Crockett JJ). However, the member may not assert from their experience the existence of some particular fact without disclosing their own particular knowledge and giving the parties the opportunity to put arguments or call evidence concerning it.

It was never in doubt that the Commission and the former Industrial Court, and its predecessor bodies, were entitled to take on judicial notice matters well-known or common knowledge in the industrial context, including the conduct of employers and unions, by drawing on their general knowledge and experience and use it in resolving matters before it: see, eg, Richens v Tresilian & Dun (1993) 32 NSWLR 301 at 312 (Hungerford J); Brooks v Upper Hunter County Council [1973] AR (NSW) 90 (McKeon J); Blacktown Workers Club Ltd v Harris (1999) 93 IR 226 at 236 [41] (Industrial Registrar Robertson). This occurred with such regularity that “it goes without saying” that the Industrial Court could take on judicial notice matters of common knowledge in the industrial context. For example, in Treasury Secretary v PSA (No 2) [2013], the President, Boland J, observed that the Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales “has a good record in terms of industrial behaviour over a very long period of time” and was “a good industrial citizen”: at 359 [50], 360 [52]. This was because the Judges of the former Industrial Court, who also held office as Deputy Presidents of the Commission, were steeped in knowledge of industrial affairs and the conduct of industrial participants in both the Commission and the Court.

The question of whether this Court, when dealing with industrial proceedings under the Act or other industrial legislation, may consider matters well-known in the industrial context should be resolved by considering the legislative intent of the 2016 Amendment Act. That Act abolished the Industrial Court and transferred most of its functions to this Court.

In my view, Parliament intended that the substantive law and practice of the former Industrial Court would continue in the Supreme Court. This is clear from the special provisions inserted in Ch 6A of the Act, which had the effect of applying the practices of the Industrial Court to this Court in dealing with industrial proceedings. There are five indicia in Ch 6A, which were all inserted by the 2016 Amendment Act, that are of particular significance in their application to industrial proceedings (as that term is defined in s 355A of the Act).

First, s 355E(1) of the Act applies ss 167 (relating to intervention by Minister, Anti-Discrimination Board and State peak council), 169(1)–(3) (for anti-discrimination matters) and s 181A (the obligation to disclose costs to clients and Commission) to proceedings of this Court. Those provisions had previously applied to the Industrial Court.

Secondly, s 355E(2) of the Act adopted text that is substantially identical to s 146(2) of the Act, which now only applies to the Commission, but, before the 2016 Amendment Act, also applied to the Industrial Court. This provides the mandatory considerations that the Court is to have regard to.

Thirdly, s 355E(3) of the Act adopted the practice of the Industrial Court, then under s 181 of the Act, to not award costs for certain industrial proceedings.

Fourthly, s 355E(4) of the Act allows this Court to grant leave for a party to be represented by an agent who is not an Australian legal practitioner if it considers it appropriate to do so. This was similar to the operation of the Industrial Court under s 166 of the Act, as it then operated, that allowed non-lawyers and industrial officers to represent parties.

Fifthly, s 355C of the Act gives this Court the power to make binding declarations of right that s 154 of Act, as it then operated, had empowered the Industrial Court to make: Health Services Union NSW v Health Secretary [2017] NSWSC 1661 at [1] (Schmidt J). This complements, but does not detract from, the wide grant of jurisdiction available in this Court to grant declaratory or other relief under ss 23 and 75 of the Supreme Court Act: Fakhouri v Secretary for the NSW Ministry of Health [2022] NSWSC 233 at [25]-[27] (Beech-Jones CJ at CL).

Further, the procedural rules of the former Industrial Court have also largely been adopted in this Court. There, of course, have been small, but immaterial, exceptions. One example is the initiating process for proceedings for an order under s 106 of the Act was by a summons in the former Industrial Court (Industrial Relations Commission Rules 2009 (NSW) r 13.2) but is by a statement of claim in this Court (UCPR r 6.3(i)): Sutton v BE Australia WD Pty Ltd (No 3) [2017] NSWSC 689 at [43]-[44] (Walton J).

Overall, these provisions, in my view, support the view that the Parliament of New South Wales had not intended to effectuate a substantive change in law and practice (except when expressly identified) and sought to preserve in this Court, as far as possible, the functions, procedure and practice of the former Industrial Court.

This view is confirmed by the extrinsic material. The second reading speech by the then-Minister for Ageing, Minister for Disability Services, and Minister for Multiculturalism, the Hon John Ajaka, for the Industrial Relations Amendment (Industrial Court) Bill 2016 (NSW) (New South Wales, Parliamentary Debates, Legislative Council, 21 September 2016 at page 12) stated that:

The second reading speech demonstrates that the mischief behind the 2016 Amendment Act was to address the declining workload of the Industrial Court and because this Court was better placed and had greater resources to attend to urgent industrial matters in circumstances where the Industrial Court, then composed of only one Judge, could not. These are merely procedural and resourcing issues, not issues that go to the substantive law.

Importantly, the second reading speech makes clear that Parliament intended that the industrial relations expertise of members of the Industrial Court would continue when its jurisdiction was transferred to this Court. At page 12 of Hansard, the speech stated:

The parliamentary debate that ensued notes that this Court would continue the functions of the former Industrial Court and emphasis was placed on the industrial expertise in this Court: see, eg, New South Wales, Parliamentary Debates, Legislative Council, 11 October 2016 at page 108 where the reply speech on behalf of the Hon John Ajaka in the second reading debate drew attention to specific Judges of the Common Law Division who had prior industrial relations experience.

The extrinsic material demonstrates that the integration of the Industrial Court and this Court was merely to address procedural matters and that the procedure, processes and expertise of the Industrial Court would not be substantively changed.

Thus, I consider that Judges of this Court, in industrial proceedings under Ch 6A of the Act, can have regard to common knowledge in the industrial context, including the conduct of employers and unions in this State over a period of time. This is because, if this Court did not have the power to exercise the powers and functions of the former Industrial Court to consider matters of common knowledge in the industrial context, that would be a substantive change in the law – something that the text and extrinsic material demonstrate was resisted by the Parliament.

In any case, judicial notice of a union’s industrial record in industrial proceedings is not unheard of in this Court. For example, in Building Construction Employees & Builders' Labourers Federation of New South Wales v Minister for Industrial Relations (1985) 1 NSWLR 197, Lee J considered that it may well be that “the publicity given to and notoriety of the actions of the plaintiff union in recent times in the industrial field would justify a court in holding that the mischief to be remedied by the [Industrial Arbitration (Special Provisions) Act 1984 (NSW) (repealed)] was one of common knowledge” although his Honour concluded that the mischief could also be discerned by the second reading speech: at 205.

Nor would consideration of matters of common knowledge in the industrial context be uncommon for a superior court of general jurisdiction. I consider that this is no different to Judges of the Federal Court of Australia, another superior court of general jurisdiction, drawing on matters of “common knowledge” when considering the industrial record of unions breaching industrial laws and their influence in a particular industry: see, eg, Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68; [2017] FCAFC 113 at 102 [162] (Dowsett, Greenwood and Wigney JJ).

In Re Optimisation Australia Pty Limited [2018] NSWSC 31 (“Re Optimisation”), Brereton J (as his Honour then was) considered whether this Court would fall within the definition of “eligible State or Territory court” in s 12 of the Fair Work Act, which included “the Industrial Court of New South Wales” in para (ca). His Honour held that, although many of the functions of the former Industrial Court were transferred to this Court by the 2016 Amendment Act, it did not necessarily follow that a Commonwealth statute conferring powers on the Industrial Court could be interpreted to include this Court: at [438]. His Honour reached this conclusion primarily because “the Commonwealth Parliament appears to have intended to give jurisdiction only to a specialist industrial court, not a superior court of general jurisdiction”.

It is clear that Brereton J in Re Optimisation was only dealing with a Commonwealth statute and the intent of the Commonwealth Parliament. His Honour was not dealing with the intent of the Parliament of New South Wales or the law of this State. Indeed, if the Court had been dealing with identical language in an Act of the NSW Parliament, the savings and transitional provisions in cl 70(1)(a) of Sch 4 to the 1996 Act provides that a reference to the Industrial Court or the Commission in Court Session in any Act or instrument is to be read as a reference to the successor court for the function concerned. Therefore, I do not consider my view to be inconsistent with Re Optimisation.

It is strictly unnecessary to determine this issue because, as I explain below, I am satisfied that the good industrial record of the defendant can be demonstrated through the evidence. Nevertheless, I am of the view that, although this Court is a superior court of general jurisdiction, this Court may, in industrial proceedings, take on judicial notice any matter of common knowledge in the industrial context. In this matter, however, an acknowledgment of the Association’s role as a ‘good industrial citizen’ does not materially affect the penalty imposed as full weight has been given to the history of non-contraventions by the defendant.

It can be helpful to have regard to and compare past judicial decisions to determine the appropriate penalty provided that there is appropriate caution and a recognition of the limitations of this approach. In R v Pham (2015) 256 CLR 550; [2015] HCA 39, French CJ, Keane and Nettle JJ at [26]-[27] explained:

In Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194, Simpson J (as her Honour then was) said the following about this “range” at [303]-[304]:

In PSA v Industrial Relations Secretary [2018], Bathurst CJ (with whom Gleeson and Simpson JJA agreed) stated at 795 [159]:

I note that neither the prosecutor or defendant submitted a schedule of cases where penalties were imposed for contraventions of dispute orders or information of that kind. Providing such information to the Court was common practice in the past: see, eg, PSA v Industrial Relations Secretary [2018] at 795 [158] (Bathurst CJ). It was also common practice in the Industrial Court. In criminal matters, the Crown has a well-recognised duty to assist the Court by furnishing appropriate and relevant material touching on sentence, including the offender’s criminal antecedents report: R v Gamble [1983] 3 NSWLR 356 at 359 (Street CJ, with whom Lee and Enderby JJ agreed). However, the obligation on Crown prosecutors in criminal matters does not extend to a plaintiff or prosecutor for civil penalty proceedings: Commonwealth v FWBII at 521 [102] (Keane J). Nevertheless, I suggest that parties should endeavour to provide such information to the Court in any future contravention proceeding.

The first decision is BlueScope v AWU [2005] NSWIRComm 99. That case stemmed from an industrial dispute that had culminated in threatened and actual strike action by the packaging products employees at BlueScope Steel’s Port Kembla steelworks. Commissioner Connor made dispute orders on 16 February 2004 (“the first order”) that employees, unions and their members “cease and refrain” from industrial action and that the unions and its officers take reasonable steps to ensure compliance with the order.

Despite some efforts by the Australian Workers Union, New South Wales (“AWU”) to ensure compliance, the employees continued their strike over two days. Commissioner Connor then made amended dispute orders (“the amended order”) on 17 February 2004. Those orders were directed against the AWU, the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch (“AFMEPKIU”) and another union. Boland J (as his Honour then was) found that the AWU and AFMEPKIU breached the first and amended dispute orders.

A penalty was imposed by Boland J in the subsequent decision of BlueScope v AWU [2005] NSWIRComm 210. His Honour considered the relevant factors in assessing the appropriate penalty. His Honour found that neither union had previously contravened a dispute order (at [49]); the consequences of the contravention appear not to be massive (at [51]); very little weight should be given for specific deterrence (at [52]); there should be a small element for general deterrence (at [53]); there was no expression of remorse or contrition for the contravention of the orders (at [54]); and there have otherwise been good records of the unions (at [55]).

At [57]-[58], his Honour imposed the following penalties and made the following orders:

On appeal in AWU v BlueScope [2006], the Full Bench held that Boland J made two errors in the calculation of the penalty by (1) treating the obligations in the dispute orders as separate orders and determining separate penalties for each contravention and (2) assessing separate penalties for the contravention of separate obligations within the dispute orders, rather than for the single, ongoing contravention of the dispute orders: at 170 [68] (Wright J, President, Walton J, Vice-President, and Marks J).

The Full Bench at 171 [73] imposed the following penalty on the AWU (noting that the AFMEPKIU did not appeal):

In Education Director-General v NSWTF [2010] NSWIRComm 44, the New South Wales Teachers Federation (“the Federation”) admitted to a contravention of dispute orders by taking industrial action in the form of a 24-hour strike that involved approximately 4,000 employees at TAFE who are members of the Federation in circumstances where this industrial action was authorised by the Federation: at [3].

The salient features of Staff J’s thorough and well-considered decision were as follows: the contravention was undertaken in blatant and deliberate defiance of the dispute order (at [37(a)]); there was inconvenience to students through the cancellation of classes (at [37(c)]); the industrial action was entirely without justification (at [37(e)]); and, the Federation failed to apologise to the Court for the breach and to make a public declaration of belief in, and a willingness to uphold the integrity of the Commission (at [37(g)]). His Honour found that the Federation engaged in serious industrial misconduct which cannot be left unsanctioned and required some form of condign punishment: at [38]. The penalty should be in the mid-range having regard to the fact that the Executive of the Federation was instrumental in bringing about a settlement of the dispute by the time of the judgment: at [41]-[42].

Staff J found that the penalty should include an element of specific deterrence and a small element of general deterrence: at [46]-[47]. In relation to the subjective factors, his Honour noted that the Federation admitted to the contravention of the dispute order and accordingly there should be a discount: at [49]. A penalty of $4000 was applied for a single breach that occurred on one day.

In Education Director-General v NSWTF [2010] NSWIRComm 77, the Federation admitted to a contravention of dispute orders by taking industrial action in the form of a 3-hour strike for a stop work meeting that involved approximately 2,360 employees at TAFE who are members of the Federation in circumstances where this industrial action was authorised by the Federation: at [1].

Marks J held that the breach by the Federation was a “most serious matter”: at [25]. His Honour stated that, given the flagrant breach of the dispute order, the Court “can have no confidence that the respondent will not breach any further dispute order if it determines that it should act in that way”: at [27]. Hence, the Court “took into account the deterrent effect both generally and on this respondent to the fullest possible extent when assessing the appropriate penalty”: at [27].

His Honour held that the fact that the early plea of guilty by the Federation at an early point in time can be taken into account to mitigate the amount of the penalty to be assessed: at [28]. However, this did not constitute an indication of contrition or remorse and no discount was accorded in the matter: at [28]-[29]. A penalty of $7000 was applied for a single breach that occurred on one day.

In 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 (“Education Director-General v NSWTF [2012] NSWIRComm 58”), the Federation admitted that it did not took industrial action on a single day and did not cease or refrain from authorising or organising industrial action on two days: at [26].

Haylen J noted that, as the Federation had previously contravened dispute orders, it was exposed to a maximum penalty of $20,000 for the first day of the contravention and $10,000 for each day thereafter under s 139(4)(b) of the Act. In this case, there was a need for deterrence and in recognition of the fact that the industrial action resulted in the substantial closure of schools and had a significance impact upon TAFE operations: at [12], [33].

A distinguishing feature in that case was the fact that there was an early notification to the Director-General of the industrial action, which gave the Director-General sufficient time to make an early application for dispute orders: at [39]. Overall, the Court imposed a total penalty of $6000 for the contraventions over two days.

In Fire and Rescue NSW on behalf of Department of Premier and Cabinet v New South Wales Fire Brigade Employees' Union [2012] NSWIRComm 76 (“FRNSW v FBEU [2012]”), the defendant union instructed their members to take industrial action in the form of bans on relieving, stand-bys, out-duties and administrative functions. After dispute orders were made, the defendant union instructed its members that the bans remained in force. The President, Boland J, stated that “in a gesture confirming the FBEU was thumbing its nose completely at the Commission's orders, the Union not only maintained the bans in place after the dispute orders were made, but it put in place additional bans”: at [38].

The defendant union acknowledged that it contravened the dispute orders made by the Commission: at [22]. However, his Honour noted that earlier recommendations by the Commission had provided the defendant union with a "sophisticated and civilised" regime for dealing with its grievance against the applicant that rendered entirely unnecessary resort to industrial action: at [31]-[35].

The Court considered that the additional overtime worked during the period of the bans had an estimated cost of $183,000. However, there was no widespread disruption and the bans did not affect the Brigade's ability to deal with any outbreak of fire: at [40]. His Honour noted that the defendant union appears to believe that its conduct was justified and thus there was a strong case for including in the penalty an element for specific deterrence and general deterrence: at [41].

The President noted at [42]:

The Court imposed a penalty of $7,500 for the first day of the contravention and $3,500 for the second day: at [45]. The total penalty was $11,000.

In Education Director-General v NSWTF [2012] NSWIRComm 93, the Federation contravened a dispute order by authorising its members to stop work for 24 hours. The President, Boland J, found that the Federation’s conduct was a serious contravention undertaken in deliberate defiance of dispute orders: at [28]. His Honour noted that the strike disrupted student learning and there was considerable inconvenience caused to the community: at [35].

His Honour held that some weight must be given to the need for general deterrence: at [39]. Specific deterrence must constitute a significant element of the penalty because the Federation is a repeat offender and had given no sign it will refrain in the future from contravening dispute orders: at [40]. The Federation had admitted the contravention and some utilitarian value was to be taken into account because the prosecutor was not put to proof: at [41].

His Honour held that “[t]he conduct engaged in by the Federation, its prior record of offences, its refusal to acknowledge its wrongdoing, its silence regarding future conduct and the other factors I have taken into account, weigh heavily in favour of a penalty at the high end of the range”: at [44]. A penalty of $17,500 was imposed. That was the highest penalty imposed by the former Industrial Court.

In Treasury Secretary v PSA [2013], the defendant union contravened a dispute order that directed it to refrain from taking industrial action. There was a stoppage of work on some government departments and agencies that affected, amongst other things, the operation of correctional centres and courts; the provision of care and management of students with disabilities and behaviour disorders; ageing, disability and homecare services; and a Roads and Maritime Services registry: at 354 [19], 359 [46].

The President, Boland J, found that the industrial action was “not of the worst kind or anywhere near it” because it was “not a lengthy stoppage or one of a 'wildcat' nature designed to inflict severe damage on, or disruption to, the operations of government or to inconvenience the public to any significant degree”: at 357 [31]. His Honour stated at 358-359 [43] that:

His Honour found that the disruption was minimal given the size and scope of the public sector in this State and the potential disruption that 44,000 members of the PSA could have wrought: at 359 [46]. An element of general deterrence was small at most: at 359 [49]. It was noted that the defendant union had a good record in terms of industrial behaviour over a very long period of time, there was no evidence of any propensity to contravene dispute orders of the Commission and the union had expressed regret for its actions: at 359 [50].

It was also noted that the defendant union had admitted the contravention and that it was a good industrial citizen: at 360 [51]. The penalty imposed was $2500.

In Industrial Relations Secretary v PSA [2017], the defendant union put on its website a bulletin which stated that it would proceed with a 24-hour strike on 14 February 2017 even if it meant the union “cops a fine”. Fagan J imposed a penalty that totalled $84,000: Industrial Relations Secretary v Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales (No 2) [2017] NSWSC 430 at [36]-[37] (Fagan J).

The penalty imposed by Fagan J was set aside by the Court of Appeal in PSA v Industrial Relations Secretary [2018] on the ground that it was “manifestly excessive in the sense that it is ‘unreasonable or plainly unjust’”: at 794 [153], 795 [160] (Bathurst CJ with whom Gleeson and Simpson JJA agreed).

The Chief Justice assessed the seriousness of the contravention “at a little below the middle range”: at 794 [155]. His Honour explained at 794-795 [155]-[158]:

His Honour considered that the appropriate penalty is a “fine” of $25,000: at 795 [161]. It is noteworthy that, in that case, the maximum penalty was $150,000 under s 139(4)(b) of the Act because the union had penalties previously imposed for a contravention of an earlier dispute orders and the contravention had lasted 14 days.

In Education Secretary v AEU [2022], which has been discussed throughout this judgment, the defendant union admitted to organising and taking industrial action. The dispute orders in that case had required the defendant union to issue a public statement to retract and revoke its direction to members to strike, remove any references to a strike on its websites and documents, and inform its members of the orders and direct they comply with the order: see [12]. The contraventions by the defendant union were blatant and deliberate in their defiance of the orders: at [361]. The impact of the strike was widespread and resulted in the cessation of a great number of schools across NSW, as well as inconvenience to the community and working parents: at [374]-[381].

The defendant union had previously contravened earlier dispute orders (at [388]) but there had been a nearly decade long abstinence by the Federation from industrial action (at [392]). General deterrence was given substantial weight: at [397]. The penalty also reflected an element of specific deterrence: at [401]. The defendant union did not make any expressions of remorse or contrition: at [410].

In that matter, I imposed a penalty of $25,000 for the contravention concerning the organisation of the strike by a single course of conduct which occurred over 8 days where the maximum penalty was $45,000: at [415]. I imposed a penalty of $8,000 for engaging in the strike itself where the maximum penalty was $10,000: at [416]. Applying the principle of totality, an enforcement order was made for a penalty of $30,000 under s 139(3)(e) of the Act: at [417]-[418].

Education Secretary v AEU [2022] thus represents the highest penalty previously imposed by this Court or the former Industrial Court for contraventions of a dispute order. This is not to say that the highest previous penalty sets some kind of “maximum”. The maximum penalty remains that set by Parliament in s 139(4) of the Act. Nevertheless, this survey of past decisions demonstrates the range of penalties that have been applied to various circumstances.

I turn first to the issues raised by the parties in relation to the maximum penalty. In criminal sentencing, the maximum penalty is relevant in the sense described by Gleeson CJ, Gummow, Hayne and Callinan JJ in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 (“Markarian”) at 372 [31] as follows:

The well known statement of principle in Markarian has been applied in a civil penalty context: Education Secretary v AEU [2022] at [402]-[403] (Walton J); FBEU v FRNSW [2014] at [50] (Walton J, President); Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd (2016) 340 ALR 25; [2016] FCAFC 181 at 63 [154]-[155] (Jagot, Yates and Bromwich JJ) and the authorities cited therein.

The defendant has not previously been penalised for a breach of dispute orders. Accordingly, s 139(4)(b) of the Act has no application. The maximum penalty is to be worked out under the terms of s 139(4)(a) of the Act.

The contravention under pleaded contraventions C to I for failing to cease organising and continuing to induce, advise, authorise, support, encourage, direct, aid or abet members of the defendant to take or organise industrial action lasted for seven days from 25 to 31 March 2022. Accordingly, the maximum penalty is $40,000.

Regard should be had to the fact that the Parliament has provided for a higher maximum penalty for the first day of the contravention and a lower penalty for each subsequent day the contravention occurs: Education Director-General v NSWTF [2010] NSWIRComm 44 at [36] (Staff J).

The March Orders made by the Commissioner were expressed in clear terms, well recognisable by industrial participants within the NSW industrial system. I accept the submission of the prosecutor that the contravention by the defendant were undertaken in blatant and deliberate defiance of the March Orders.

On 30 March 2022, Mr Holmes sent a letter to Mr Minns confirming that the Association’s Council had "considered the issue and the numbers made available to it of nurses and midwives on furlough in the Public Health System and continues the commitment to providing life preserving care, but further resolves to continue the industrial action voted on by the NSWNMA COD and Branches for Thursday 31 March."

The Executive and Council of the Association, who are responsible for management of the Association, took a conscious decision in the face of the March Orders to proceed with the 24-hour strike. The defendant’s conduct in its Council resolving to continue organising the industrial action; sending an email to its members that “[i]t’s time to hold strong, continue the fight and attend your rally as planned”; issuing of a directive to the effect that the strike will go ahead in defiance of the orders; and publishing a post on Facebook that “[n]urses and midwives will be taking strike action tomorrow … Will you join us?" was in deliberate defiance of the Commission’s order made on 25 March 2022. This conduct was not “passive” conduct or a “contravention by omission”. They were wanton acts by the defendant in disobedience of the order and sanctioned by the Executive of the Association.

There are some factors, however, which ameliorates 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.

The defendant had given advance notice to the prosecutor that it intended to take industrial action and this allowed the prosecutor to notify the industrial dispute to the Commission. After the March Orders were made, the defendant, through its Branch representatives, gave notice as to strike action in the days leading up to the strike. I accept the evidence in the First Fitzsimons Affidavit that this placed significant pressure on hospitals. However, it is also clear that it did enable hospital nursing management, albeit under great pressure, to organise meetings, collect information about the number of striking nurses and midwives, and reorganise surgeries and procedures.

The defendant had kept the prosecutor updated on meetings and votes undertaken by the relevant Branches and promptly replied to inquiries by officers or employees of the prosecutor about the extent and scope of its industrial action. In some Branches, the evidence shows that the Branch Executive and Association were encouraging individual members to advise their Nursing Unit Manager, Midwifery Unit Manager or direct line manager as to whether they are taking industrial action.

The evidence also shows that the defendant and its officers or members within its Branches made an effort to ensure that life-preserving care could continue and sought to prevent extreme disruption to patient services. This was reflected in some of the correspondence to the fact that members of the defendant felt bound by the International Council of Nurses Code of Ethics and the need to provide safe care in health practices, services and settings.

An example of this can be seen in the Tullamore Multi Purpose Service Branch (“Tullamore Branch”). A letter sent by Branch President, Ms Emma Schubert, and Branch Secretary, Ms Julie Strudwick, to the Health Service Manager of Tullamore Multi Purpose Service, Ms Katrina Mulligan, dated 28 March 2022, which stated that the Branch is committed to “ensure that life preserving staffing is maintained during this 24 hour [strike] period”. The authors of that letter recognised that “due to the already existing critical staff shortages at Tullamore and a daily inability to fill the roster, the members will not have capacity to strike for any length of time”. Members of the Tullamore Branch imposed work bans and would prioritise and attend to “only direct essential patient care”; the members on shift on 31 March 2022 would wear a red t-shirt to work; and, those members would “[t]ake “turns” in a 30 minute “walk out””. This is a departure from how other Branches had decided to take strike action, which was predominantly to have their members to stop work for a number of hours.

However, there were some places where the executive management and Branch members were not in agreement. At 5:00pm on 30 March 2022 (the day before the strike), an organiser employed by the defendant, Mr Mark Murphy, emailed a member of Nursing management, Ms Marie Baxter, to indicate that the Branch members did not agree to the Blacktown Mount Druitt Hospital executive’s position of Emergency Department staffing on the next day. This email was sent very late and, as the First Fitzsimons Affidavit demonstrates, this resulted in time consuming negotiations with staff to adjust the nursing roster. It does not appear from that email that Mr Murphy proposed another alternative staffing arrangement to the hospital executive.

The evidence also shows that Ms Johnson had emailed representatives of the Association, Mr John Paul Marx and Mr Holmes, on 30 March 2022 with a detailed request for staff because John Hunter Hospital was “significantly compromised in ICU, ED and Surgery for LIFE SAVING CARE”. Ms Johnson recounts in her affidavit that, later that day, in a meeting between two representatives of hospital management and two representatives of the Association, the Association agreed to the suggested level of staffing but gave “no guarantee that the members would agree to return” and that “if on strike day there were further deficits then it was not the responsibility of the NSWMNA and that we, hospital management, would need to manage this”. Ms Johnson stated “[w]hat we argued for at that meeting and in my previous email correspondence was the absolute minimum staffing in our most critical care areas”.

When viewing the evidence as a whole, I am of the view that most Branches of the defendant made a real effort to minimise the impact of its strike on the patients that nurses and midwives care for. It appears that, at least at some Branches like the Tullamore Branch, the nature of the industrial action was tailored or adjusted to meet patient needs and work demands. There was a recognition by most Branches and members of the defendant that some patients were vulnerable. In those Branches, the defendant, its officers and members acted with care to take steps to avoid impacting essential and life-preserving care. However, it can be observed that this sentiment was not shared by all members and Branch representatives. There were strong pleas from “on-the-ground” management in some areas and the response by the defendant was not as responsive or compassionate as those in in other areas.

Overall, the evidence shows that 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 the Ministry of Health. This is not to say that the prosecutor did not need to take very significant logistical steps to ameliorate the impact of the strike. But it is an acknowledgement that a real effort was made to reduce the impact on patients by most Branches and members of the defendant. This is in contrast to the attitude of other public sector unions in the past that had merely left it to individual employees on the day to decide whether or not to take strike action and there would be chaos in essential public services with no ability to advise those affected of the facilities available or whether there would be closures: see Education Director-General v NSWTF [2012] NSWIRComm 58 at [38] (Haylen J).

The First Fitzsimons Affidavit showed that at Westmead Hospital and WSLHD:

The Johnson Affidavit demonstrates that approximately 278 nurses and midwives (approximately 34% of the average 823 staff rostered on to work in a 24 hour period) from John Hunter Hospital participated in a 24 hour strike. The salient features from the Johnson Affidavit show that, on 31 March 2022, the impact of the strike at that hospital was as follows:

The defendant did not refute this evidence but rather noted that a statement made by the prosecutor indicated that the disruption caused minor disruptions and delays to health services and that hospitals maintained life preserving staff.

Overall, I am satisfied that the disruption caused to the public health system was substantial and not insignificant, notwithstanding the effort made by the defendant and some of its members to reduce or mitigate that impact. I am satisfied that some patients were inconvenienced to a considerable extent by the shortage of staff. It is clear that some patients had important medical procedures cancelled and delayed. I am also satisfied that the provision of the use of casual staff members and payment of overtime would likely have come at a cost to the prosecutor although this amount was not quantified. I accept that the evidence of the impact on Westmead Hospital, WSLHD and the John Hunter Hospital is representative of the impact on other LHDs in the State.

I am also concerned that some employees who worked on the day of the strike may have been placed at in a health and safety risk given the significant amount of time worked and the demands associated with a shortage of staff. The Johnson Affidavit describes that the Nurse Manager in the Emergency Department in the John Hunter Hospital managed that department from 7:00am to 1:30pm and then again from 9:15pm to 7:15am the next day, totalling 16 hours.

I am satisfied that the strike placed some patients and other employees in the Health Service at risk but I am not satisfied from the evidence that any patient was placed in life-threatening risk.

In PSA v Industrial Relations Secretary, Bathurst CJ (with whom Gleeson and Simpson JJA agreed) stated at 795 [157]:

This can be contrasted with the remarks of Boland J, President, in Treasury Secretary v PSA [2013] at 359 [48]-[49] as follows:

In Education Secretary v AEU [2022], I reconciled these statements of general deterrence at [397] as follows:

I agree with the prosecutor that, if the Commission’s authority is to be upheld, then participants in the industrial relations system who gain the benefits of that system must face a sufficient deterrent against flouting lawfully made dispute orders. There is a continuing need to deter potential contraveners from disregarding and disobeying the orders of the Commission. But where there has been a flagrant and deliberate defiance, there is a heightened need to give substantial weight to general deterrence, as observed in PSA v Industrial Relations Secretary [2018] at 795 [157] (Bathurst CJ) and Education Secretary v AEU [2022] at [397]. I believe that this is consistent with observations above where I discussed Pattinson. In this case, general deterrence should be given full force in the penalty.

The imposition of a penalty may reflect the need to specifically deter a union from committing similar offences in the future: Australian Iron & Steel Ltd v Federated Ironworkers Association [1961] AR (NSW) 304 at 311 (Cook, Beattie and Kelleher JJ). In that case, however, the Commission found that the executive of the union was already sufficiently aware of the need to prevent further errors of omission by its officers so the Commission gave no weight on this factor.

The defendant has not been found to have contravened dispute orders before these proceedings. This is the first occasion since the organisation was established in 1931. This demonstrates that the defendant has had good industrial behaviour over a very long period of time.

On the other hand, as I have noted above, the defendant’s defiance of the Commission’s order was brazen and serious. The evidence shows that the Association is ready and willing to press ahead with industrial action despite dispute orders, on their face, being made in order to achieve their purposes.

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

It is common knowledge in the context of industrial relations in this State that the defendant has a long history of not engaging in industrial action in support of demands made on behalf of its members. (I note that I had put this matter to the parties on the second hearing day and indicated that this was based on my knowledge of the Association, its history and, more generally, industrial relations in this State.)

Although there have been a number of dispute orders made against the defendant in the course of industrial disputation (see, eg, Health Director v NSWNA [2010] at [25] (Boland J, President); Secretary, Ministry of Health in respect of Hunter New England Local Health District and New South Wales Nurses and Midwives’ Association [2021] NSWIRComm 1046 at [20] (Commissioner Webster); Health Secretary v NSWMNA [2022] NSWIRComm 1047 at [26] (Commissioner Sloan); Health Secretary v NSWNMA [2022] NSWIRComm 1071 at [38] (Commissioner Sloan)), it can nonetheless be concluded that the defendant has generally had a good record in terms of industrial behaviour over a long period of time, including by complying with orders, directions and recommendations of the Commission, and actively participating in conciliation (see, eg, Director General, NSW Department of Health and New South Wales Nurses Association (No 3) [2010] NSWIRComm 190 (Boland J, President)).

In any event, and largely to the same outcome, I consider that, contrary to the submission of the prosecutor, the defendant’s industrial record can, to a large extent, be established on the evidence before the Court that the defendant has not been found to have contravened a dispute order in the past or committed a criminal offence.

I conclude that the defendant has historically been a good industrial citizen, which is deserving of some leniency: see FRNSW v FBEU [2012] at [42].

Where there is an admission to contravening a dispute order, the Court should discount the penalty that would otherwise have been imposed to reflect the utilitarian value for the saving of costs and expenses, and the time of the Court in dealing with this matter: Education Secretary v AEU [2022] at [409] (Walton J); Education Director-General v NSWTF [2010] NSWIRComm 44 at [49] (Staff J). Here, the defendant admitted to pleaded contraventions H and I (subject to a question of validity) but put the prosecutor to proof on pleaded contraventions C to G. It is appropriate that a small discount be given in these circumstances.

There is no evidence of contrition or regret of the conduct in breach of the defendant’s obligations under the dispute order.

In determining the appropriate penalty, all of the relevant factors must be taken into account by way of an instinctive synthesis that identifies all the relevant factors, discusses their significance and then arrives at a single appropriate result which takes due account of them all: Markarian at 375 [39] (Gleeson CJ, Gummow, Hayne and Callinan JJ).

Having regard to the above factors, I am satisfied that it is not appropriate to dismiss the matter under s 139(3)(a) of the Act. The past decisions where contravention proceedings were dismissed – including Education Director-General v NSWTF [2000] NSWIRComm 103, BlueScope (No 3) [2006] and BlueScope (No 2) [2005] – involved an apology, statement of regret or a commitment to rectify or remedy the breach by the contravener. Nothing of that kind is present in this case. Furthermore, the defendant’s brazen defiance of the Commission’s orders must attract a significant penalty to both generally and specifically deter such future conduct.

The contravention of the March Orders by organising the strike and inducing, advising, authorising, supporting, encouraging, directing, aiding or abetting members of the defendant to organise or take industrial action over 7 days is, in my view, objectively serious.

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.

I have concluded that the contravention concerning the organisation of the strike by a single course of conduct which occurred over seven days (pleaded contraventions C to I on the Amended Summons) should attract a penalty of $25,000.

If I am wrong on the validity of the February Orders and they are valid, I would have imposed a penalty of $11,500 for pleaded contravention A on the Amended Summons (which attracts a maximum penalty of $15,000). In addition to the above factors, regard would be had to the evidence in the First Fitzsimons Affidavit and Johnson Affidavit as to the particular disruption, inconvenience and impact caused by the strike on 15 February 2022.

I note that a penalty imposed under s 139(3)(e) of the Act may be recovered in the same way as a penalty imposed by this Court for an offence against the Act: s 139(5) of the Act. A monetary penalty imposed by this Court for an offence is a “fine” under s 4(1) of the Fines Act 1996 (NSW) (“Fines Act”) and thus the Fines Act applies: see BHP v AWU [2003] NSWIRComm 151 at [92] (Haylen J). Accordingly, the penalty is payable within 28 days: Fines Act s 7(1).

In conclusion, the attacks by the defendant on the validity of the February and March Orders are properly characterised as collateral attacks. The Court has a discretion to decline to hear and determine a collateral attack. However, having regard to all the circumstances of this case, it should not exercise that discretion.

The Commission, when making dispute orders in arbitration proceedings, is under an implied statutory obligation to give reasons. That obligation is a flexible one and, in circumstances where the Commission is constrained by the need to act quickly, the reasons need not be lengthy or complex. A failure to give reasons is an error of law but does not amount to jurisdictional error.

In making the February Orders, the Commissioner failed to consider and respond to two clearly articulated, substantial arguments about the Secretary’s delay in notifying the dispute to the Commission and the extent of the potential loss, damage and economic impact. As there was a real possibility that the Commission could have reached a different outcome, its failure amounted to jurisdictional error. The Amended Summons, insofar that it relates to the February Orders, must be dismissed.

The Commissioner did not err in failing to consider and respond to any of the arguments put by the Association when he made the March Orders. There was no proper basis advanced for concluding that those orders are vitiated by jurisdictional error.

The defendant breached the March Orders for seven days by organising the strike and inducing, advising, authorising, supporting, encouraging, directing, aiding or abetting members of the defendant to organise or take industrial action. The prosecutor has not satisfied the Court that the defendant breached the March Orders by failing to refrain from taking industrial action.

The defendant’s defiance of the March Orders was brazen and deliberate. The penalty should reflect the need to both specifically deter the defendant from future breaches of dispute orders and generally deter industrial organisations from such breaches. Having regard to the objective and subjective factors, an order should be made under s 139(3)(e) for a penalty of $25,000. For completeness, no order is made for costs: s 355E(3) of the Act.

For these reasons, the Court makes the following orders: